Tillman v. City of Carthage

• Citation: 297 Mo. 74,247 S.W. 992
• Decision Date: 30 December 1923
• Docket Number: No. 22165.,22165.
• Parties: TILLMAN v. CITY OF CARTHAGE et al.
• Court: United States State Supreme Court of Missouri

247 S.W. 992

297 Mo. 74

TILLMAN v. CITY OF CARTHAGE et al.

No. 22165.

Supreme Court of Missouri, in Banc.

December 30, 1923.

Motion for Rehearing Denied February 2, 1923.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by Susan Tillman against the city of Carthage and others. From judgment for defendants, plaintiff appeals. Affirmed.

Howard Gray, of Carthage, and W. J. Orr, of Springfield, for appellant.

Frank R. Birkhead, of Carthage, Geo W. Crowder, of Jefferson City, and McReynolds & McReynolds and John H. Flanigan, all of Carthage, for respondents.

DAVID E. BLAIR, J.

This case comes to the court en banc from division 1, wherein the judges were divided in opinion. The opinion of one of the commissioners of that division was thereafter adopted as the opinion of this court. Subsequently a motion for rehearing was sustained, and after reargument the opinion of the commissioner was rejected.

The case is a statutory proceeding to determine title to certain lands in the city of Carthage. The lands in question are part of the estate of E. T. McCune, who died intestate prior to January, 1900. Lizzie A. McCune, his widow, and his daughter, the appellant in this case, were the only heirs. In January, 1900, they partitioned the land by exchange of quitclaim deeds. The real estate here involved is the portion thus acquired by Mrs. McCune, and is of large value.

The McCunes had one child, a son, who predeceased his father. He became a physician, and was associated in his practice at Carthage with one Dr. Brooks, who had devoted a fund to the establishment of a hospital in that city. After the death of her husband, Mrs. McCune determined to establish a foundation for a hospital in Carthage to the memory of her deceased son. To this end, and on May 18, 1900, she executed a will, and' on May 12, 1903, added a Codicil, devoting her entire estate to that purpose, and from time to time thereafter expended $30,000 to $40,000 in aid of the erection of the hospital by the Carthage Hospital Association, of which Samuel McReynolds was president and J. E. Lang secretary. It is the contention of appellant that at the suggestion of the officers of said hospital association Mrs. McCune executed deeds to her property to be delivered to the city of Carthage at her death. The effect of such deeds will be discussed later. She executed four deeds. These were sealed in an envelope by Mrs. McCune, and she wrote upon the outside thereof the following directions:

"This envelope contains four warranty deeds, and the same, with inclosures, is hereby delivered to J. E. Lang for the purpose of safely keeping the same; and upon my demise he is to deliver each of the inclosed deeds to the grantee named therein, to wit, the city of Carthage, Mo.

"In witness whereof, I have hereunto set my hand, on this second day of November, 1914. Lizzie A. McCune."

Notwithstanding the delivery of such envelope containing the deeds mentioned in the indorsement thereon, on September 19, 1919, Mrs. McCune executed and delivered to appellant her quitclaim deeds, conveying to her the lands involved in this suit, being the same lands described in the deeds inclosed in the envelope delivered to Mr. Lang. She thereupon gave to Mrs. Tillman, the appellant, an order upon Mr. Lang for all her deeds, papers, and money in his possession. Me had previously been her banker and agent. He turned over to appellant everything in his possession, except the envelope containing the deeds above referred to. This he retained, and refused to deliver to appellant, on the ground that he held it and its inclosures for the city of Carthage, to be delivered to said city upon the death of Mrs. McCune.

On May 18, 1900, Mrs. McCune had executed a will, by which she devised to the city of Carthage practically the whole of her large estate, consisting principally of the lands involved here, except certain benefactions, including a provision for appellant should she be left a widow without means of support, in trust for the erection and maintenance of a public hospital in said city, to be under the general direction and control of said city, and to be named the McCune Hospital. On May 12, 1903, Mrs. McCune added a codicil to her will, which provided "that when said hospital is built that it bear the inscription: `To the memory of Dr. T. E. McCune, son of E. T. and Lizzie A. McCune'"—and that, if she should direct said hospital or a wing of it to be built in her lifetime, then a blank slab of marble should be located in the building, upon which the inscription should be carved after her death. Thereafter the erection of the hospital was begun, and the same was completed in 1905; $30,000 or $40,000 of the cost thereof being contributed by Mrs. McCune. A blank slab was placed in the structure as contemplated by the terms of the codicil.

Both Lang and McReynolds, the latter being a member of the law firm of McReynolds & McReynolds, who represented the defendants at the trial, were permitted to testify, against the objection of plaintiff, in substance that the four deeds in evidence were deposited with Lang for delivery to the city after the death of the grantor, because Mrs. McCune insisted that she desired to keep secret the fact of the execution, and did not therefore wish to permit the city to have them recorded or otherwise control them. Said deeds were warranty deeds in ordinary form. In one of them, which covered part of the Jasper county lands, the following clause was inserted:

"This deed is made for the purpose of confirming my intentions and purposes with respect to the above-described land as said intentions and purposes are set forth in my last will and testament of date May 18, 1900, it being my desire that the fee simple title shall be vested in the party of the second part for hospital purposes as expressed and provided in said will and the codicil thereto made and executed by me on May 12, 1903, and this deed is but a reaffirmation of my original intent and purpose in placing the title to said property in the party of the second part for the uses and purposes so desired by me."

In the second deed covering the remaining Jasper county lands the following clause appears:

"The above lands are hereby conveyed for the purpose of confirming my intentions and purposes as stipulated and set forth in my last will and testament of date May 18, 1900, it being my desire that the fee simple title shall be vested in the party of the second part, in trust for hospital purposes as set forth, expressed and provided in said last will and the codicil thereto made and executed by me on May 12, 1903. This conveyance of the above described land is also made subject to the provisions and trust expressed in my said last will and testament and codicil thereto appended, to which instruments reference is made for more definite instructions as to the nature and extent of said trust provisions which are limited and restricted to the use of the persons therein named and only to the extent and upon the conditions therein expressed."

At the close of the trial the plaintiff asked the following declarations of law, which were given:

"(1) The court declares the law to be that under the evidence in this case the instruments offered in evidence prove that the trust created thereby is a charitable trust, and the court excludes all parol testimony attempting to add to or take from or in any wise explain any of the provisions or purposes of said trust or of its creation, and that all the purposes and provisions of said trust must be found and contained in the written instruments creating same.

"(2) The court declares the law to be that the directions set forth on the back of the envelope offered in evidence as to the delivery of the deeds is unambiguous and speaks for itself, and cannot be enlarged or explained or in any wise affected as to the terms of the delivery by parol testimony.

"(3) The court declares that under the statutes an estate in remainder cannot be created by parol, and a life estate cannot be reserved by parol, but such estates must be expressly reserved and created, or must be necessarily implied from the terms of the grant alone.

"(4) The court declares that the `Carthage Hospital Association' has no interest, legal or equitable, as beneficiary or otherwise, under the deed, will and codicils read in evidence, but that the beneficiary named in those instruments constitutes an indefinite class and portion of the residents and citizens of Carthage as its citizenship may change from time to time, and especially constituting those who are `unfortunate and afflicted.'"

The trial court refused to give instruction No. 5 requested by the appellant, which was as follows:

"(5) The court declares the law to be, that the will and codicils referred to in the warranty deeds offered in evidence by the defendants are a part and parcel of said warranty deeds, and that in construing said warranty deeds the court must read said will and codicils into the same as if actually contained therein, and from the said will, codicils, and deeds, the court declares the law to be that they are testamentary in character, and the said warranty deeds passed no title as to any of the defendants."

The trial court then ruled as follows:

"Now at the time of the decision after the oral arguments and briefs have been furnished the court, the court rules that all the oral testimony which was introduced on behalf of the defendants and admitted by the court is admitted for the sole purpose of aiding the court in determining whether or not Lizzie A. McCune intended to and did deliver the four deeds dated November 2, 1914, to J. E. Lang to hold said deeds for the city of Carthage as grantee therein, with the intention on the part of Mrs. McCune to irrevocably divest herself of all control over said deeds, and for no other purpose."

The trial tour; made a finding of facto, from which we quote the...