236 F. 873 | 8th Cir. | 1916
.These appeals in bankruptcy involve the right of certain-creditors of Arthur Chapman, bankrupt, to prove their demands, and also the claim of the trustees to the interest of his former wife, Jessie W. Chapman, in property devised to her by her father-in-law, Andrew E. Chapman, deceased.
It is urged that the testator was induced to make the change because of the existing insolvency of the bankrupt and by her verbal promise to the testator to convey to the bankrupt whenever he desired. There is no contention that she solicited the testator to do so, or exercised undue influence upon him, or committed a fraud other than by her bare insistence upon a right in conflict with the alleged promise. We think the case is clearly within section 2868, Rev. Stat. Mo. 1909, which provides that:
“All declarations or creations of trust or confidence of any lands, tenements or hereditaments shall be manifested and proved by some writing signed by the party who is, or shall be, by law, enabled to declare such trusts, or by his last will, in writing, or else they shall be void.”
A devise of an estate in lands absolute in form, confirmed and made final by the probate of the will, without contest within the statutory period therefor, cannot be defeated by the assertion of an oral promise by the devisee to the testator to hold in trust for another. Such an insecurity of title is within the very condition which the statute was designed to guard against. The attack upon the manifest purport of the will not only assails the effect of the probate (Stowe v. Stowe, 140 Mo., 594, 41 S. W. 951), but seeks to accomplish by oral proof what should have been declared by the testator in his will or by the devisee in writing (Price v. Kane, 112 Mo. 412, 20 S. W. 609).
But it is said Mrs. Chapman actually executed the trust by conveying her interest in the property, and her conveyance was confirmed by a decree of a state court at Kansas City. It is true that in May, 1906, three years after the death of the testator and more than a year after the discharge of the bankrupt in the first proceeding she executed a deed to him and he later deeded to the Arthur Chapman Investment Company, a corporation he organized. We see nothing of controlling significance in her conveyance. It was not expressed as being in execution of a trust, and in the circumstances of the case we think it quite as attributable to the desire of a wife with minor children to keep her family together and to put importunities at rest. In the fall of 1908, when the relations between the couple became openly strained, she brought suit in the state court against the bankrupt, the Investment Company, and others to annul the conveyance as having been obtained from her by fraud and undue advantage in her sickness. In answer, a secret trust based on her alleged promise to the testator and the execution thereof by the conveyance were set up in defense. In April of the following year, 1909, a contract of compromise and settlement of the suit and all matters of dispute was executed by Mrs. Chapman, the bankrupt, and the Investment Company. It provided, that the title to the property should be confirmed in the company, the bankrupt’s grantee, subject to a charge upon the rentals accruing from one of the tracts, securing' the payment to her of a fixed sum during her life. Her suit to set aside the conveyance was to be disposed of by a decree in favor of defendants either by stipulation or upon hearing, at the option of the bankrupt, and in form to be approved by counsel for the parties. Various other provisions were made, which are not important here. The contract concluded with this clause:
“Performance of the above provisions by the parties shall be concurrent, and each shall be contingent upon the performance of the others.”
On the same day another instrument was executed, securing her interest by a charge upon the rents, and a decree was entered in tire state court containing a finding that the title to the property was,vested in the Investment Company by conveyances from her and the bankrupt, and adjudging that she “take nothing by her petition herein filed and that the same be dismissed.” The decree recited that the cause came on “to be heard on the pleadings and all the parties plaintiff and defendants consenting and agreeing thereto.” The lease, upon the rentals of which the interest of Mrs. Chapman was secured, failed, so in
It is this interest of Mrs. Chapman and the payments to her which the trustees in bankruptcy now seek to reach. They rely upon the decree of the state court sustaining her conveyance of the estate she derived by the will, and interpret it in the light of the answer to her suit. But manifestly the decree was by consent, without trial upon proofs, and it was subject to a concurrent reservation to her of an interest in the property. It was not an adversary decree, by which she was defeated. She did not take what she got by gift of her husband and his investment company. In a give and take compromise and settlement of that kind, a creditor of one of the parties cannot go in and pick out what he likes, leaving the rest as undesirable. The parties were competent to contract; their mutual engagements were lawful and should be regarded as an entirety. There was recognition in the decree of a compromise, and the leaving of the title to the property in controversy where it apparently stood was a matter of convenience, rather than an adjudication against her, which precluded the exhibition and assertion of the other formal instruments concurrently executed.
The order denying relief to the Interstate Trading Company is affirmed. The decree of May 14, 1915, is reversed, and the causes are remanded for further proceeding’s in conformity with this opinion.