Tillman v. City of Carthage

• Decision Date: 02 February 1923
• Citation: 247 S.W. 992,297 Mo. 74
• Parties: SUSAN J. TILLMAN, Appellant, v. CITY OF CARTHAGE and CARTHAGE HOSPITAL ASSOCIATION
• Court: Missouri Supreme Court

247 S.W. 992

297 Mo. 74

SUSAN J. TILLMAN, Appellant, v. CITY OF CARTHAGE and CARTHAGE HOSPITAL ASSOCIATION

Supreme Court of Missouri

February 2, 1923 ^[*]

Appeal from Jasper Circuit Court. -- Hon. J. D. Perkins, Judge.

Affirmed.

Howard Gray and W. J. Orr for appellant.

(1) The will of 1900, the first codicil of 1903, the second codicil of 1908, and the four instruments (or deeds) of November 2 1914, and the endorsement on the envelope, constitute one instrument and should be so construed. Agan v Shannon, 15 S.W. 755; Waldemeyer v. Loebig, 121 S.W. 75; Hughes v. Bent, 81 S.W. 931; Shuslky v Shulsky, 157 P. 407; Jacobs v. Jacobs, 106 P. 898; Whitney v. Harrington, 85 P. 84; Watson v. Hinson, 73 S.E. 1089; Chambers v. Chambers, 28 N.C. 226; Cook v. Hensler, 107 P. 178; 40 Cyc. 1094; 68 L. R. A. 354, note; 8 R. C. L. 931. (2) When the will, the two codicils, and the two deeds under which the city claims title are construed together as one instrument, as in law they should be read and construed, they are clearly testamentary and did not pass any estate to the city of Carthage. Hohenstreet v. Segelhorst, 227 S.W. 80; Murphy v. Gabbert, 166 Mo. 596; Aldridge v. Aldridge, 202 Mo. 565; Griffin v. McIntosh, 176 Mo. 392; Givens v. Ott, 222 Mo. 411; Terry v. Glover, 233 Mo. 545; Goodale v. Evans, 263 Mo. 231; Pinkham v. Pinkham, 55 Neb. 729; Turner v. Scott, 51 Pa. 126; Leaver v. Gauss, 62 Iowa 314; Donald v. Nesbit, 89 Ga. 290; Gigley v. Souvey, 45 Mich. 370; Nichols v. Emery, 109 Cal. 323; Conrad v. Douglas, 59 Minn. 498; Hazelton v. Reed, 46 Kan. 73; Hanning v. Hanning, 24 S.W. 695; Cunningham v. Davis, 62 Miss. 366; Sharp v. Hall, 86 Ala. 110; Carlton v. Cameron, 54 Tex. 72; Bright v. Adams, 57 Ga. 240; Blackwell v. Blackwell, 67 Ga. 268; Sperker v. Bolster, 66 Ga. 317; Baxter v. Chapman, 94 S.E. 544; Sarter v. Sarter, 39 Miss. 760; Cox v. Reed, 74 So. 330; Broffee v. LaFils, 149 N.W. 1028; Appeal of Skerrett, 8 P. 181; Smith v. Thayer, 125 N.E. 171. (3) The trial court erred in permitting witness Samuel McReynolds to testify to what Mrs. McCune said to him in 1903 when he drew the first codicil to her will because: (a) He was her legal adviser and acted as her attorney. R.S. 1909, sec. 6362; 4 Wigmore on Evidence, sec. 2290-2329; Jones on Evidence, sec. 748; Cromack v. Heathcotte, 2 B. & B. 4; Gross v. Higgins, 50 Mo. 353; Hull v. Lyon, 27 Mo. 570; Andrew v. Simms, 33 Ark. 771; Fox v. Dpear, 78 Ark. 71. (b) This codicil constituted a part of her will and being in writing as the statute requires and being unambiguous cannot be enlarged or limited by parol. R.S. 1909, sec. 537. (c) The will and codicil create an express trust which can only be "manifested and proved" by writing signed by the creator of the trust. R.S. 1909, sec. 2868; Perry on Trusts (6 Ed.) sec. 83; Ferguson v. Robinson, 258 Mo. 113; Pitts v. Weakley, 155 Mo. 133; Crowley v. Crofton, 193 Mo. 431; Hillman v. Allen, 145 Mo. 638; Thompson v. Thompson, 211 S.W. 52; Hayes v. Hayes, 242 Mo. 155; Heil v. Heil, 194 Mo. 665; Mungan v. Wheeler, 241 Mo. 376; Hall v. Small, 178 Mo. 629; Hunter v. Briggs, 162 Mo. 204. (d) Said testimony was hearsay. (4) For the same reason the court erred in permitting witness Samuel McReynolds to testify to what Mrs. McCune said to him before he drew the four deeds of November 2, 1914, and what was said when these were executed and left with Mr. Lang. And the testimony was prejudicial and erroneous for the additional reason that these four deeds are unambiguous and the endorsement on the envelope containing these is unambiguous. Cases, supra.

Frank R. Birkhead, George W. Crowder, McReynolds & McReynolds and John H. Flanigan for respondent.

(1) Delivery is essential to the validity of a deed. The deeds here considered were legally delivered, since delivery to a third party is good, though final delivery to the grantee is to be suspended until the grantor's death. Standiford v. Standiford, 97 Mo. 231; Sneathen v. Sneathen, 104 Mo. 210; Williams v. Latham, 113 Mo. 165; Allen v. De Groodt, 105 Mo. 442; Hamilton v. Armstrong, 120 Mo. 597; Cook v. Newby, 213 Mo. 289; Schooler v. Schooler, 258 Mo. 83; Fenton v. Fenton, 261 Mo. 202; Ells v. Railroad Co., 40 Mo.App. 165; Abbe v. Justus, 60 Mo.App. 300; Marshall v. Hartzfelt, 90 Mo.App. 178; Seibel v. Higham, 216 Mo. 131; Maxwell v. Harper, 98 P. 756; St. Clair v. Marquell, 67 N.E. 693; Stout v. Rayl, 45 N.E. 515; Bury v. Young, 33 P. 338; Ruiz v. Dow, 45 P. 867; Shuer v. Rodenback, 65 P. 298; Arnegaard v. Arnegaard, 41 L. R. A. 258; Smith v. Smith, 161 P. 495. See also the cases following, and the exhaustive editorial notes thereto appended. Munro v. Bowles, 54 L. R. A. 865; Penties v. Hays, 9 L. R. A. (N. S.) 224; Renehan v. McAvoy, 28 L. R. A. (N. S.) 941. Acceptance of the deeds under the circumstances here existing is presumed. In re Soulard's Estate, 141 Mo. 642; Kingman & Co. v. Cornell Co., 150 Mo. 228, 312; Fearey v. O'Neill, 149 Mo. 477; Valentine v. Decker, 43 Mo. 585; Major v. Hill, 13 Mo. 172; Duval v. Raisin, 7 Mo. 449, 54 L. R. A. 897, note; Eyrick v. Hetrick, 13 Pa. 488; Dawson v. Dawson, Rice Eq. 243; Cloud v. Calhoun, 10 Rich. Eq. 358; Adams v. Adams, 31 Wall. 185, 22 L.Ed. 504; McCalla v. Bane, 45 F. 828; Elsberry v. Boyken, 65 Ala. 336. (2) Delivery is a fact susceptible of proof and such proof is subject to the ordinary rules of evidence. The proof may be oral and the testimony of the witnesses, Lang and McReynolds, was properly admitted in evidence. 18 C. J. 431-432; Tumlin v. Tumlin, 195 Ala. 457; Hathaway v. Cook, 258 Ill. 92; Peterman v. Crowley, 226 S.W. 944; Wilson v. Godlove, 34 Mo. 337; Gerhardt v. Tucker, 187 Mo. 46; Brown v. Groves, 80 F. 564; Shepard v. Mendenhall, 191 S.W. 257; Comings v. Irwin, 59 S.W. 153; Maxwell v. Harper, 98 P. 757; Aultman v. Baggs, 50 Mo.App. 280; Graham v. O'Fallon, 4 Mo. 338; Lang v. Ingalls Zinc Co., 69 S.W. 288; Delgar v. Jacobs, 125 P. 258; In the matter of Sponner, 89 Misc. 30, 152 N.Y.S. 537; Caldwell v. Davis, 15 P. 696; Grimshaw v. Kent, 73 P. 92; Ferguson v. Ash, 150 P. 657; Ex parte Gfeller, 178 Mo. 248; Thompson v. Ish, 99 Mo. 176; Glover v. Patten, 165 U.S. 294, 17 S.Ct. 411; Smith v. Smith, 161 P. 495; 40 Cyc. 2380, note 18; 4 Wigmore on Evidence, sec. 2297. The court will observe that in practically every Missouri case where delivery was in question the oral testimony of the scrivener was admitted, and this notwithstanding there was, in most of the case, a written memorandum as to delivery. Said cases being: Standiford v. Standiford, 97 Mo. 231; Sneathen v. Sneathen, 140 Mo. 210; Williams v. Latham, 113 Mo. 165; Hamilton v. Armstrong, 120 Mo. 597; Cook v. Newby, 213 Mo. 489; Schooler v. Schooler, 258 Mo. 83. (3) The conveyances are not testamentary. There is nothing in the deeds to show that title was not to pass immediately. The deeds constitute a valid present conveyance of a future estate, and such conveyance is not testamentary. R.S. 1909, sec. 2876; Allen v. De Groodt, 105 Mo. 451; Christ v. Kuehne, 172 Mo. 118; Dozier v. Toalson, 180 Mo. 546; Simms v. Brown, 252 Mo. 58; Priest v. McFarland, 262 Mo. 229; Dawson v. Taylor, 214 S.W. 852; Maxwell v. Harper, 98 P. 759; Innes v. Potter, 3 A. L. R. 896, note. (a) "It is no objection to the creation and validity of a trust that the enjoyment of the beneficiary's interest is postponed, provided the legal title passes to the trustees and a present interest vests." 39 Cyc. 43, notes 30 and 31; In re Soulard's Estate, 141 Mo. 642. (b) The fact that a trust is not to be administered until after the death of the founder does not prevent a present interest passing, and does not invalidate the trust. Simms v. Brown, 252 Mo. 66; In re Podhajsky, 137 Iowa 742; Lewis v. Curnutt, 130 Iowa 430. (4) The trust here involved was irrevocable and it matters not that Mrs. McCune's daughter prevailed upon her to make a deed seemingly inconsistent with the trust. Such later deed was ineffectual to revoke a trust which was irrevocable. 39 Cyc. 92, 93; Womens Christian Assn. v. Kansas City, 147 Mo. 127; Ewing v. Shannahan, 113 Mo. 188; Catron v. Scarritt Collegiate Institute, 264 Mo. 723; Perry on Trusts (6 Ed.) sec. 259. (5) Knowledge on the part of the trustee is not essential to the validity of a trust. The trustee's acceptance when made relates back to the date of the trust instrument. 39 Cyc. 77, 78, 79; Jamison v. Zausch, 227 Mo. 406. (6) Plaintiff's failure to call Mrs. Lizzie A. McCune to give her testimony is a strong circumstance justifying the court in concluding that Mrs. McCune's testimony was suppressed because it would have been adverse. Willitts v. Railway Co., 221 S.W. 66; McCord v. Schaff, 216 S.W. 320; Booher v. Trainer, 172 Mo.App. 376; Karne v. Railroad, 254 Mo. 175; Vannest v. Railroad, 181 Mo.App. 373; Bryant v. Lazarus, 234 Mo. 606; Tate v. Wabash Railroad, 141 S.W. 459. (7) The legal effect of the transaction was to vest a remainder in the trustee subject to a life estate in the grantor and the court properly so found. Cook v. Newby, 213 Mo. 471, 491; Bury v. Young, 33 P. 338; Arnegaard v. Arnegaard, 41 L. R. A. 258; Maxwell v. Harper, 98 P. 756; O'Day v. Meadows, 194 Mo. 588; (8) A conveyance to a beneficiary under a will is a revocation of the will pro tanto, and the grantee takes under the conveyance, not under the will. 40 Cyc. 1209; Marshall v. Hartzfelt, 98 Mo.App. 178; Wollery v. Wollery, 48 Ind. 523; Gage v. Gage, 12 N.H. 1271.

Howard Gray and W. J. Orr for appellant in reply.

(1) It is a well-settled rule of law that where a party fails to produce evidence exclusively within his or her control, and which is competent, material and relevant a presumption may be indulged that such evidence would not be favorable to such party. But this rule of law does not apply to one party alone....