Watson v. Payne

• Citation: 143 Mo. App. 721,128 S.W. 238
• Parties: WATSON et al. v. PAYNE.
• Decision Date: 09 May 1910
• Court: Court of Appeal of Missouri (US)

128 S.W. 238

143 Mo. App. 721

WATSON et al. v. PAYNE.

Kansas City Court of Appeals. Missouri.

May 9, 1910.

Rehearing Denied May 23, 1910.

1. TRUSTS (§§ 17, 18)—EXPRESS TRUSTS IN LAND—VALIDITY.

An express trust in land cannot be created by parol, under Rev. St. 1899, § 3416 (Ann. St. 1906, p. 1949), requiring such trusts to be manifested by some writing signed by the party declaring the trust.

2. TRUSTS (§§ 17, 18)—EXPRESS TRUSTS IN PERSONALTY—VALIDITY.

Where one, before he acquired real estate, and after he had converted it into money, orally declared his intention of acting only as trustee of designated persons, the trust related to personalty and was valid, whether it was his original purpose to convert the land into money, or whether such purpose was so declared as to effect an equitable conversion of the land into personalty; the land having been turned into money as speedily as possible.

3. TRUSTS (§ 44)—PAROL TRUSTS—EVIDENCE —SUFFICIENCY.

The evidence to establish a parol trust must be convincing, and the terms of the trust must be clear and complete.

4. TRUSTS (§ 334)—VOLUNTARY TRUSTS— "EXECUTORY TRUST"—ENFORCEMENT.

A voluntary executory trust which is a promise to create a trust is not enforceable.

5. TRUSTS (§ 59)—VOLUNTARY TRUSTS—"EXECUTED TRUST"—ENFORCEMENT.

A voluntary executed trust which is a trust completely created is irrevocable.

6. TRUSTS (§ 114)—"EXECUTED TRUST"—ENFORCEMENT.

Where one acquired land after he had declared his intention to hold the proceeds, after the payment of debts, in trust, and then converted it into money, and declared that he held it in trust, the trust was executed and enforceable, though voluntary.

7. LIMITATION OF ACTIONS (§ 103)—ACCRUAL OF RIGHT OF ACTION—TRUSTS—ENFORCEMENT.

As between the trustee of an express trust and the cestui que trust, limitations do not run until repudiation by the trustee and knowledge thereof by the cestui.

Appeal from Circuit Court, Sullivan County; John P. Butler, Judge.

Action by America E. Watson and others against Reuben Payne, executor of Addison Payne, deceased. From a judgment for plaintiffs, defendant appeals. Affirmed.

Wilson & Clapp, for appellant. A. W. Mullins, for respondents.

JOHNSON, J.

Plaintiffs allege that, as beneficiaries of a trust declared in their favor by their grandfather, they are entitled to receive the entire trust fund, and this suit is to recover it from the estate of their grandfather who died testate in Sullivan county November 26, 1906. The answer is long, but its legal effect is to deny the existence of a trust and to plead the statute of limitations. The court resolved the issues in favor of plaintiffs and rendered judgment against defendant administrator for $1,400. Defendant appealed.

Plaintiffs were the children of John S. and Martha J. Page. Addison Payne, a man of wealth who lived in Sullivan county, was the father of Mrs. Page. In 1894 Mrs. Page became the owner in fee simple of a farm of 120 acres in Linn county. Her husband was insolvent at that time and was much indebted to her father. Seven months later, Mrs. Page died intestate owing some debts. One of the creditors of her estate procured the appointment of an administrator. The demands allowed against the estate and the expenses of administration amounted in all to $251.68. There was no personal estate, and in 1897 the farm was sold at administrator's sale to pay the debts. Addison Payne bought it for $251.68, the exact amount of the total indebtedness. Six months afterward, through the agency of the father of plaintiffs, he sold and conveyed the farm to a stranger for $2,000. The sale was consummated December 16, 1897. At that time the ages of plaintiffs were as follows: America 26, Minnie 22, Amanda 20, Reuben 15, Caleb 13, and Flem 6. In 1895 the father of plaintiffs gave a deed of trust to one of his creditors to secure a note of $378. This deed conveyed his life estate in the land as tenant by the curtesy. The farm was worth $2,000, and the value of the life estate was $1,275. Addison Payne purchased this note, and in April, 1897, had the farm sold under the deed of trust and became the purchaser of the life estate. By this purchase and the purchase at the administrator's sale, he acquired the full legal title to the land at an outlay of $251.68 paid the administrator, and $378 paid for the note secured by the trust deed. When he sold the farm, he paid the father of plaintiffs $50 for his services in effecting the sale. His total outlay was $681.68. In arriving at the amount due plaintiffs, the court deducted this sum from $2,000, the proceeds realized from the sale of the land, and computed interest on the remainder from the date of the commencement of this suit. The result was a judgment in the sum of $1,400. Plaintiffs contend that, before he purchased the farm at the trustee's and administrator's sales, Addison Payne declared a trust in favor of plaintiffs, his grandchildren, and that after he bought the farm and became the fee-simple owner thereof, and again after he sold it, he repeated the declaration. Defendant denies that a trust was declared, and his evidence tends to show that Mr. Payne, in purchasing the farm, acted solely for his own gain in the expectation that he might be able to recoup some of his own loss as a creditor of his son-in-law. There is no writing to prove the trust, but we find the evidence of plaintiffs is clear and cogent that Mr. Payne, before he acquired the land, and after he had converted it into money, repeatedly declared his intention and purpose of acting in the matter only as the trustee of his grand-children. At the time the administrator of his daughter's estate was appointed, he declared in the presence of the probate court that he "would buy the land, pay the debts against the estate, and, if there was any surplus, would hold it for the children of Mrs. Page." After the conversion of the land into money, he told one witness: "I got it all wound up in good shape, and I am going to take care of it * * * for...