Wahl v. Wahl

• Decision Date: 08 December 1947
• Docket Number: 40378
• Citation: 206 S.W.2d 334,357 Mo. 89
• Parties: James H. Wahl, Lewis F. Wahl and Ella Wahl Patterson v. Anna Vashti Wahl, Individually and as Joint Executor of the Last Will and Testament of James S. Wahl, Deceased, Appellant, and Sharon J. Pate, Individually and as Joint Executor of the Last Will and Testament of James S. Wahl, Deceased; Chaffee Ice and Cold Storage Company, a Corporation; and Wahl & Company, a Corporation, Non-Appealing Defendants
• Court: Missouri Supreme Court

206 S.W.2d 334

357 Mo. 89

James H. Wahl, Lewis F. Wahl and Ella Wahl Patterson v. Anna Vashti Wahl, Individually and as Joint Executor of the Last Will and Testament of James S. Wahl, Deceased, Appellant, and Sharon J. Pate, Individually and as Joint Executor of the Last Will and Testament of James S. Wahl, Deceased; Chaffee Ice and Cold Storage Company, a Corporation; and Wahl & Company, a Corporation, Non-Appealing Defendants

No. 40378

Supreme Court of Missouri

December 8, 1947

Appeal from Scott Circuit Court; Hon. J. C. McDowell Judge.

Affirmed.

M E. Montgomery and Blanton & Blanton for appellant.

(1) The transfer of the stock upon the books of the company does not constitute a valid gift inter vivos. The burden of proof is upon the donee to establish a complete and valid donation which includes a delivery. Jones v. Falls, 73 S.W 903; Allen-West Comm. Co. v. Grumbles, 129 F. 287; Gray v. Doubikin, 176 S.W. 514, 188 Mo.App. 667. (2) Delivery to an agent of the donor is not a sufficient delivery. Tomlinson v. Ellison, 104 Mo. 105, 16 S.W. 201; Foley v. Harrison, 136 S.W. 354, 233 Mo. 460; 38 C.J. 804, p. 25; Newton v. Snyder, 44 Ark. 42. (3) A mere transfer of stock upon the books of the company does not constitute a valid gift of the stock to the transferee named in the certificate unless such transfer is accompanied by delivery of the stock to the donee. Feil v. First Natl. Bank, 269 S.W. 936; Southern Institute v. Marsh, 15 F.2d 347, certiorari denied 273 U.S. 747, 47 S.Ct. 449; Allen-West Comm. Co. v. Grumbles, 129 F. 287; Bogert, Trusts and Trustees, sec. 142, p. 415, note 34; Lebrecht v. Nellist, 171 S.W. 10, 184 Mo.App. 335; Gray v. Doubikin, 176 S.W. 514, 188 Mo.App. 667; Coffey v. Comm. Internal Revenue, 141 F.2d 204; White v. White, 17 S.W.2d 733, 229 Ky. 666; Weil v. Commissioner, 82 F.2d 561, certiorari denied, 299 U.S. 552, 57 S.Ct. 14; Edson v. Lucas, 40 F.2d 398; Light v. Graham, 199 S.W. 570; Weigel v. Wood, 194 S.W.2d 40. (4) The attempted transfers were ineffective to create a trust. An express trust in personalty can be created only by evidence so clear, full and demonstrative as to banish any reasonable doubt as to the existence of its essential elements. Northrip v. Burge, 164 S.W. 584, 255 Mo. 641; Harding v. St. Louis Union Trust Co., 207 S.W. 68, 276 Mo. 136; Van Studdiford v. Randolph, 49 S.W.2d 250; Coon v. Stanley, 94 S.W.2d 96, 230 Mo.App. 524; Re Harlow's Estate, 192 S.W.2d 5. (5) The court cannot convert an imperfect gift because of non-delivery into a declaration of trust merely because of that imperfection. State ex rel. Union Natl. Bank v. Blair, 350 Mo. 622, 166 S.W.2d 1085; Eschen v. Steers, 10 F.2d 739; Elliott v. Gordon, 70 F.2d 9; Cartall v. St. Louis Union Trust Co., 153 S.W.2d 370, 348 Mo. 372; Bogert, Trusts and Trustees, sec. 205, p. 584; Restatement of the Law, Trusts, sec. 25 (a), p. 72; sec. 31; Godard v. Conard, 101 S.W. 1108, 125 Mo.App. 165; Pennell v. Ennis, 103 S.W. 147, 126 Mo.App. 355; Weil v. Commissioner of Internal Revenue, 82 F.2d 561; 38 C.J.S. 786, sec. 8, notes 82, 83; Goodman v. Crowley, 61 S.W. 850, 161 Mo. 657; Tygard v. McComb, 54 Mo.App. 85; Smith v. Smith, 192 S.W.2d 691. (6) By his attempted imperfect testamentary disposition, the deceased, James S. Wahl, has not created a trust for the benefit of these respondents, and the other named beneficiaries, because he did not either declare himself trustee nor did he make such delivery of the property as was capable by reason of its nature. Cartall v. St. Louis Union Trust Co., 348 Mo. 372, 153 S.W.2d 370; Trautz v. Lemp, 46 S.W.2d 135, 329 Mo. 580; Van Studdiford v. Randolph, 49 S.W.2d 251; Eschen v. Steers, 10 F.2d 739; Coon v. Stanley, 94 S.W.2d 96; Napier v. Eigel, 164 S.W.2d 908, 350 Mo. 111; Wahl v. Sheehan, 54 F.Supp. 56; Krause v. Jeannette Inv. Co., 62 S.W.2d l.c. 895, 333 Mo. 509; Harding v. St. Louis Union Trust Co., 207 S.W. 68, 276 Mo. 136; State ex rel. Union Natl. Bank v. Blair, 350 Mo. 622, 166 S.W.2d 1085; Northrip v. Burge, 164 S.W. 584, 255 Mo. 641; Elliott v. Gordon, 70 F.2d 10; Godard v. Conard, 101 S.W. 1108, 125 Mo.App. 165; Pennell v. Ennis, 103 S.W. 147, 126 Mo.App. 355; City Bank v. McKenna, 153 S.W. 521; Frank v. Heimann, 258 S.W. 1000, 302 Mo. 334; Brannock v. Magoon, 125 S.W. 535, 141 Mo.App. 316; Bogert, Trusts and Trustees, sec. 202, p. 573, Note 39. (7) The case of Harris Banking Company v. Miller, 190 Mo. l.c. 663, et seq., 89 S.W. 629, so heavily relied upon by the respondents, in the court below, is not now the law of this state, and has been distinguished and criticized by later decisions. State ex rel. Union Natl. Bank v. Blair, 350 Mo. 622, 166 S.W.2d 1085, quashing 156 S.W.2d 941; Cartall v. St. Louis Union Trust Co., 153 S.W.2d 370, 348 Mo. 372; Wahl v. Sheehan, 54 F.Supp. 56; Coon v. Stanley, 94 S.W.2d 96; Godard v. Conrad, 101 S.W. 1108, 125 Mo.App. 165; Pennell v. Ennis, 103 S.W. 147, 126 Mo.App. 355; Trustees LaGrange College v. Parker, 200 S.W. 663, 198 Mo.App. 372; Eschen v. Steers, 10 F.2d 739. (8) As respondents were not to receive any interest in said stock until the death of Wahl, the attempted transfers were ineffective as attempted testamentary dispositions of the stock, where unaccompanied by delivery of the certificates. Goodall v. Evans, 263 Mo. 219, 172 S.W. 370; Murphy v. Gabbert, 166 Mo. 596, 66 S.W. 536; Thorp v. Daniel, 339 Mo. 763, 99 S.W.2d 42; Dunn v. Bank, 109 Mo. 90, 188 S.W. 1139; Hohenstreet v. Segelhorst, 227 S.W. 80, 285 Mo. 507. (9) The attempted transfers were void as an attempt to deprive the appellant of her dower rights in the stock. Davis v. Davis, 5 Mo. 183; Stone v. Stone, 18 Mo. 390; Tucker v. Tucker, 29 Mo. 350; Tucker v. Tucker, 32 Mo. 464; Rice v. Waddill, 168 Mo. 99, 67 S.W. 605; Dyer v. Smith, 62 Mo.App. 606; Headington v. Woodard, 214 S.W. 963; Hach v. Rollins, 158 Mo. 182, 59 S.W. 232; Weller v. Collier, 199 S.W. 974; Merz v. The Bank, 130 S.W.2d 611, 344 Mo. 1150.

Maddox & Maddox, Stephen Barton and Jack Manhein for respondents.

(1) Title to corporate stock passes by endorsement and delivery of certificates evidencing the ownership of the same. Davis v. Rossi, 34 S.W.2d 8; Brinkerhoff-Farris Trust Co. v. Home Lbr. Co., 118 Mo. 447, 24 S.W. 129; Mitchell v. Newton County Bank, 220 Mo.App. 223, 282 S.W. 729. (2) Delivery of trust property to the cestui que trust is not essential to the creation of a valid, executed trust. Mize v. Bates County Natl. Bank, 60 Mo.App. 358; Brannock v. Magoon, 125 S.W. 535; Martin v. Funk, 75 N.Y. 134, 31 Am. Rep. 446; 39 Cyc., p. 76. (3) Nor is it essential that the beneficiaries of the trust have knowledge of its creation, or accept the trust. Mize v. Bates County Natl. Bank, supra; Pullis v. Pullis Bros. Iron Co., 157 Mo. 565, 57 S.W. 1096; McPheeters v. Scott County Bank, 63 S.W.2d 456; Ketcham v. Miller, 37 S.W.2d 635; 39 Cyc,, p. 79. (4) It is not necessary to the establishment of a trust that the settlor expressly declare the trust. His intention to create the trust may be inferred from what he has done and from the nature of the transaction. In re Soulard's Estate, 141 Mo. 642, 43 S.W. 617; 54 Am. Jur., pp. 62, 63. (5) A trust in corporate stock is not invalidated by a reservation by the settlor for life of the dividends; nor does a reservation of the right to vote the stock and hold offices in the corporation void the trust. Davis v. Rossi, supra. (6) If, under a conveyance, there is an immediate, present passing of title, either legal or equitable, the conveyance is not testamentary in character. Thorp v. Daniel, 99 S.W.2d 42; Dunn v. The Bank, 109 Mo. 90; Hohenstreet v. Segelhorst, 227 S.W. 80. (7) The words "upon his death" employed in the stock certificates related to the time of possession and enjoyment of the property and had nothing to do with the immediate vesting of the remainder interest. Chew v. Keller, 100 Mo. 362, 13 S.W. 395; Lenders Inv. Co. v. Brown, 300 Mo. 348, 254 S.W. 14; 2 Am. Law Inst. Restatement, Property, sec. 157. (8) The transfers were not, in fact, made to deprive the widow of her dower; nor were they made in contemplation of death. But had they been made to deprive the widow of her dower or other rights, this alone would not void the trusts. A husband may transfer his personalty during his lifetime for the purpose of defeating his wife's dower, provided such disposition is not made in contemplation of death and is not testamentary. West v. Miller, 78 F.2d 479, certiorari denied by U.S. Supreme Court, 296 U.S. 633, applying Missouri Law.

OPINION

Tipton, J.

This is a declaratory judgment action to determine the right, title and interest of respondents (plaintiffs) in certain shares of stock in the Chaffee Ice and Cold Storage Company of Chaffee Missouri, and Wahl & Company of Hayti, Missouri. The appellant, Anna Vashti Wahl, and defendant Sharon J. Pate were joint executrix and executor of the estate of James S. Wahl, deceased. Plaintiffs' contention was that this stock was given to them by the deceased and that they were the owners of the stock in dispute. Defendant Sharon J. Pate, as an individual and as co-executor of the estate of the deceased, filed a separate answer and agreed with the plaintiffs. Defendant Chaffee Ice and Cold Storage Company and defendant Wahl & Company filed joint separate answers in which they stated that they had no interest in the stock; that they did not know whether the stock belonged to plaintiffs or to the estate of James S. Wahl, deceased; and that they would obey the orders and judgment of the court with reference to the ownership of the shares of stock. Defendant Anna Vashti Wahl, as an individual and as executrix, filed an answer contending that the stock belonged to the estate of James S. Wahl. In her answer she admitted that there was an...