Wanstrath v. Kappel

• Decision Date: 21 April 1947
• Docket Number: 39812,39813
• Citation: 201 S.W.2d 327,356 Mo. 210
• Parties: Gertrude Wanstrath v. John C. Kappel, Jr., Martha Raney and Mutual Bank and Trust Company, a Corporation, as Trustees, etc., Minette McFarland et al., Defendants-Appellants, John C. Kappel, Jr., Executor, etc., Defendant-Appellant
• Court: Missouri Supreme Court

201 S.W.2d 327

356 Mo. 210

Gertrude Wanstrath v. John C. Kappel, Jr., Martha Raney and Mutual Bank and Trust Company, a Corporation, as Trustees, etc., Minette McFarland et al., Defendants-Appellants, John C. Kappel, Jr., Executor, etc., Defendant-Appellant

Nos. 39812, 39813

Supreme Court of Missouri

April 21, 1947

Appeal from Circuit Court of St. Louis County; Hon. Amandus Brackman, Judge.

Affirmed.

James E. Higgins, Harry G. Neill, Robert T. Hensley and Marvin Krause for appellants John C. Kappel, Jr. Martha Raney and Mutual Bank & Trust Company, Trustees.

(1) The court erred in rendering its decision and judgment for plaintiff and against defendants John C. Kappel, Jr., Martha Raney and Mutual Bank & Trust Company, trustees, which among other things was a finding to the effect that the personal property conveyed to these defendants under the trust indenture was conveyed in fraud of plaintiff's rights as widow of the grantor of the trust, because there was no clear and convincing proof of a fraudulent intent on the part of the grantor. Sims v. Brown, 252 Mo. 58, 158 S.W 624; Davis v. Rossi, 326 Mo. 911, 34 S.W.2d 8; Merz v. Tower Grove Bank & Trust Co., 130 S.W.2d 611; Coon v. Stanley, 230 Mo.App. 524, 94 S.W.2d 96; 41 C.J.S., sec. 19, p. 415; 26 Am. Jur., sec. 198, p. 617. (2) The court erred in its judgment and finding that the trust agreement of 2 February, 1943 was testamentary in character because the grantor had no testamentary control over the property at the time of his death, since there was no finding that the property belonged to the grantor at the time of his death. Sec. 323, R.S. 1939, and authorities cited under Point (1). (3) The court erred in its judgment and finding that the trust agreement of 2 February, 1943, was testamentary in character because there was no foundation or basis for such finding and judgment, and no clear, cogent and convincing as well as positive evidence to support such finding. Restatement of the Law of Trusts, sec. 57, (1) and (2); Sims v. Brown, 252 Mo. 58, 158 S.W. 624; Davis v. Rossi, 326 Mo. 911, 34 S.W.2d 8; Coon v. Stanley, 230 Mo.App. 524, 94 S.W.2d 96; Merz v Tower Grove Bank & Trust Co., 130 S.W.2d 611; In re Estate of Soulard, 141 Mo. 642. (4) The court erred in its judgment and finding because the court erred in failing to find that plaintiff was estopped to deny the validity of the trust indenture, as plaintiff actively participated as co-trustee in a previous trust which conveyed the same personal property as the trust in question, and further recognized the trust by her acts and conduct after the death of her husband. Cranson v. Cranson, 4 Mich. 230, 66 Am. Dec. 534; Pollman v. Schaper, 258 Mo. 710, 167 S.W. 953; 31 C.J.S., sec. 108, p. 341.

Bernard J. Huger and Edw. V. P. Schneiderhahn for appellants Reverend Father Anselm Secor, C.P., Pastor of St Ann's Catholic Church of Normandy.

(1) This case was laid in fraud and the proof failed completely on that point. (2) The petition is a copy of the petition in the case of Merz v. Tower Grove Bank and Trust Co., 130 S.W.2d 611. But the facts in the Merz case and in the instant case are radically different as to circumstances of health and the knowledge respecting it and the purposes of the instrument of trust. (3) The obvious frauds denounced by the Supreme Court in other cases where the husband sought to rid himself of his property by conveying to his children or others while expecting death and for the purpose of impoverishing his widow have no application here. (4) If the case of Davis v. Rossi, 326 Mo. 911, 34 S.W.2d 8, and the case of Sims v. Brown, 252 Mo. 58, are still the law, then the decision of the lower court in the instant case cannot stand.

Thomas S. McPheeters and Bryan, Cave, McPheeters & McRoberts for appellant Minette McFarland.

(1) The court erred in entering a judgment and decree in favor of respondent on the ground that the trust was testamentary in character when no such basis of recovery was pleaded in respondent's petition. (2) The court erred in adjudging and decreeing that the conveyance was testamentary in character. Davis v. Rossi, 326 Mo. 911, 34 S.W.2d 8; Sims v. Brown, 252 Mo. 58, 158 S.W. 624; Coon v. Stanley, 230 Mo.App. 524, 94 S.W.2d 96; Scott on Trusts, secs. 57.1, 57.6; Restatement of the Law of Trusts, sec. 57 (d). (3) The court erred in holding that the conveyance in trusts was in fraud of the wife's marital rights because the record in this case affirmatively shows that the provision made for the wife in the trust indenture was greater in value than her marital rights. (4) Kappel, as executor, after filing his answer and taking the position at the trial that the trust was good in its entirety, cannot, after judgment and decree, reverse that position and ask the court to declare the trust void in its entirety. The same party cannot take two completely inconsistent positions at and before a trial and subsequent thereto. (5) In the event that the court should affirm the judgment in favor of the widow respondent in the principal cause, which declared that she was entitled to receive one-third of the trust estate, the trust can and should be still left in full force as to all other parties, all of whom in their pleadings and at the trial asserted the full validity of the trust in its entirety. Wanstrath v. Kappel, 190 S.W.2d 241.

McDonald, Bartlett & Muldoon, Daniel Bartlett and Thomas F. Muldoon for respondent Gertrude Wanstrath.

(1) The evidence in this case establishes the right of the widow to have the trust indenture set aside as to one-third of the property thereby conveyed, to which share (equivalent to a child's share) she is absolutely entitled. Merz v. Tower Grove Bank & Trust Co., 344 Mo. 1150, 130 S.W.2d 611. (2) The trust indenture was testamentary in character. Merz v. Tower Grove Bank & Trust Co., supra; Rice v. Waddill, 168 Mo. 99, 67 S.W. 605; Tucker v. Tucker, 29 Mo. 350; Sec. 323, R.S. 1939; Messersmith v. Messersmith, 264 Mo. 610, 175 S.W. 914; Davis v. Davis, 5 Mo. 183; In re Bernays' Estate, 344 Mo. 135, 126 S.W.2d 209; Newton v. Newton, 162 Mo. 173, 61 S.W. 881; Straat v. O'Neill, 84 Mo. 68; Tucker v. Tucker, 32 Mo. 464; Stone v. Stone, 18 Mo. 389; Dyer v. Smith, 62 Mo.App. 606; Sims v. Brown, 252 Mo. 58, 158 S.W. 624; Burnet v. Guggenheim, 288 U.S. 280; Restatement of the Law of Trusts (Am. Law Inst.), sec. 57, subdiv. 2. (3) The husband retained control of the trust property until the moment of his death and did not in good faith divest himself of ownership, so that the property at his death is subject to widow's statutory rights. Newman v. Dore, 275 N.Y. 371, 9 N.E.2d 966, 112 A.L.R. 643. (4) The transfer by the trust indenture was in fraud of the widow's statutory marital rights. Merz v. Tower Grove Bank & Trust Co., supra; Newman v. Dore, supra; Newton v. Newton, supra; Secs. 323, 1892, R.S. 1939; Wigmore on Evidence (3rd Ed.), secs. 286, 2243, 2340. (5) Under all the evidence and the pleadings in the case, the widow is not estopped from claiming her statutory marital rights in the "Trust" property. Sec. 323, R.S. 1939; Messersmith v. Messersmith, supra; 19 Am. Jur., Estoppel, sec. 42-3. (6) The decree entered in this case was just and proper, and is within the jurisdiction and power of a court of equity. The pleadings only sought the setting aside of the trust indenture as to one-third (the widow's statutory share) of the trust property, and did not seek the setting aside in toto of the indenture. A court of equity, having once acquired jurisdiction, will retain it to the end to administer full and complete justice, within the scope of the pleadings and the evidence, between the parties. Hence there is no occasion here to set aside the trust indenture in toto, or, if so, there is no occasion to direct the delivery of the widow's share of the trust property to the executor. Merz v. Tower Grove Bank & Trust Co., supra; 30 C.J.S., sec. 67; 19 Am. Jur., secs. 127, 128, 129, 197; Nodaway County v. Alumbaugh, 348 Mo. 354, 153 S.W.2d 74; Stierlin v. Teschemacher, 333 Mo. 1208, 64 S.W.2d 647, 91 A.L.R. 121; Peer v. Aschauer, 102 S.W.2d 764; Siegle v. First Natl. Co., 338 Mo. 417, 90 S.W.2d 776, 105 A.L.R. 181; Restatement, Law of Trusts, sec. 167.

Henry Ebenhoh and Walter S. Berkman for appellant John C. Kappel, Jr.

(1) When an instrument has been declared to be testamentary in character, it is of no force or effect for any purpose. Gooddale v. Evans, 172 S.W. 370; Thorp v Daniel, 99 S.W.2d 42; Merz v. Tower Grove Bank & Trust Co., 130 S.W.2d 611; Goins v. Melton, 121 S.W.2d 821. (2) Claim for a child's share must be presented to the probate court, since the amount of a child's share can only be ascertained upon a final settlement of an estate after a full accounting by the administrator. Howard v. Strode, 146 S.W. 792; In re Bernays' Estate, 126 S.W.2d 209. (3) Exclusive original jurisdiction to administer and distribute assets of deceased's estate is vested in the probate court and not in the circuit court. Art. 6, Sec. 34, Constitution of Missouri; Hax v. O'Donnell, 117 S.W.2d 667; Kock v. Meacham, 121 S.W.2d 279; Smith v. Oliver, 157 S.W.2d 558. (4) Circuit court is without jurisdiction to administer and distribute assets belonging to a decedent's estate pending in the probate court. Kock v. Meacham, supra; Smith v. Oliver, supra. (5) It is the duty of an executor to collect and preserve all assets of an estate for the benefit of all persons interested in it and to collect inheritance and estate taxes. Secs. 575, 579, R.S. 1939; State ex rel. Madden v. Sartorius, 163 S.W.2d 987; Odom v. Langston, 173 S.W.2d 826. (6) When deceased's estate is open and pending in the probate court and a trust executed by deceased has been held to be testamentary in character, and...