Davis v. Rossi

9Ü Theresa R. Davis, Administratrix of Estate of Simon D. Rossi, Ap

pellant, v. Victor D. Rossi and Mae R. Haseman. 34 S. W. (2d) 8. Two, 20,

Division December 1930.* filed; rehearing Opinion 1930: Motion filed October *NOTE: 20, 1930. motion December overruled Randolph Laughlin appellant.

§14 (cid:127) Foristel, & Habenicht for re- Mudd,

Lublce Lubhe and Blair & spondents. intestate, 6, 1925,

HENWOOD, died, D. Rossi December C. Simon children, grandson, a wife, and by his ten survived and was controversy originated in daughter. This a only child deceased of discover a proceeding St. City Louis as of the of Court the Probate Davis, R. children, Theresa of his one estate, wherein of his assets 922 estate,

administratrix of his children, plaintiff, was the other and two of his D. Haseman, Victor Eossi and E.Mae were the defendants. In an of administratrix, charged affidavit 'defendants were concealing and withholding goods moneys,' all owned and chattels by their father at death, the time of 120 particularly shares of capital stock S. D. Grocery Company, of Eossi corporation, a par $12,000, therefrom, value of and the income derived 4,000 and shares of capital Eossi, Incorporated, stock of D. S. par $400,000, value of and the income derived therefrom. appeared charge, response Defendants a and said to citation denied interrogatories. and thereafter filed their answers In said an- they capital swers possession admit of all said of the shares companies therefrom, stock of said and certain income derived they state that hold same as trustees under and virtue 1922, January 10, a further certain deed of trust executed Grocery capital 120 of S. D. Eossi state that said shares of the stock trustees, Company assigned 1925, as were them on November trust; copy A of trust under terms said of said deed deed capital covering copies shares of certificates thereon, Company, with all indorsements Grocery stock of S. D. Ebssi answers, the reply In to said were attached to said answers. her alleged deed of the delivery the execution and administratrix denies says alleged is deed of trust; replying, further she that the against perpetuities; first, the rule reasons, that it violates void character; third, that Simon testamentary second, is that it possession or any time, himself of not, divest D. Eossi did derived alleged trust income corpus nor of the control of therefrom; replying, she denies that further de- Grocery Company were ever capital S. D. Ebssi stock of under the terms as trustees assigned defendants livered or purpose. probate The trust, other alleged deed of administratrix, for the issues court, sitting jury, found the without a capital shares of the all of said and, by judgment, its ordered be turned therefrom derived companies income and all Court appealed to Circuit Defendants the administratrix. over to jury, sitting without court, Louis, and that City St. accordingly. judgment and rendered for defendants issues found appeal to perfected an has the administratrix judgment, From that court. this as follows: question reads of trust The deed this tenth into Trust, entered Made and Conveyance “This City Eossi, D. Simon by and between January,-1922, day part, first Missouri, party of State of Louis and of St. place, parties Hasemann, of the same E.Mae Eossi and D. Victor Hasemann, Eossi, James E.Mae Madeline part, second John Davis, Peters, E. Sofia E. Theresa Eossi, Victor Eossi, F. Eossi, B. Dallavalle, Eossi, Stanley Clara E. Aline Harvey Eossi, J. A. Johnson, Eossi and place, parties Harold G-. of the same of the part, third witnesseth: party

“That said of in part, of first and consideration love parties part, and affection bears he to the of the third as by parties well sum of as the of one dollar each of the the third part paid receipt to of which is party part, of the first trusts acknowledged, and of consideration of the hereby the further trans- hereby sell, assign, created, hereinafter and does mentioned following part, parties fer and set over unto said the second personal property at personal which said property, described- first and presents by party part, owned said date of these is delivery presents, of these personal property is, at which said parties second part to by party the first said delivered said part hereby acknowledge receipt part, parties of the second and namely: part, party from of the first of the same Eossi, D. In- of S. capital “Four thousand shares Missouri, corporation the laws the State corporated, a under by each, its evidenced hundred dollars par value one Eossi; D. No. in of S. 3,998 the name No. certificate by Eossi, indorsed D. and Victor in name of 2, for one share Hasemann, E. for one blank; of Mae 3,No. name him in in the and blank. share, indorsed her together hold property,

“To have and to said property with any thereof, with income acquired together any property with other may thereto, hereafter which added as provided, hereinafter parties part assigns unto said the second and their successors and forever; trust, however, purposes, for the following uses and following powers subject with following reser- party part, following vations the first and the limitations: part shall hold parties property, “Said of the second to- may thereto, pro- gether any which be added hereinafter with vided, therefrom, and to invest the income and collect income unexpended accumulating therefrom, power shall or have the dispose acquired or sell or all income to time, except provided, from to as hereinafter so of the same time - keep unexpended accumulating constantly such as invested, income income, constantly keep so as to bear an and shall judgment in such securities as their from property invested best, bring highest so rate shall be safest time to time investment, shall invest the safety consistent with of income accepted as shall be only such securities from time to same Missouri, as col- Louis, doing city, of-St. in the business banks n by them. be made for loans to- lateral ‘ ‘ sell or cause be sold part shall not of the second parties Said the books of on said S. transferred transferred, or cause to be or Rossi, Incorporated, the shares of stock of said S. D. conveyed Incorporated, hereby during and assigned, lifetime party part, the first without party the written consent of the part, permit the first and shall party part of the first to vote said shares stock, voting direct the of said shares of stock meetings all of corporation, the stockholders of said in such may manner fit, permit party part as he see and shall the of the first offices, corporation hold, to hold such in said as he shall so desire to long party part as the the first or living, of shall be until said shares shall be transferred with his written consent. death of After the part party the of first said shares shall be on the the transferred Rossi, Incorporated, parties D. of said S. to the of the second books exception parties part, share, one which the of second with the of the part may the books said S. cause to be transferred on of parties Incorporated, person to a third to hold for the of the second may have part corporation order that said at least three stock- hereby agrees party part And of first to endorse holders. part all parties the second dividend checks and deliver to the of corporation pay- from said received him from time shares. declared on said .ment of dividends of “Out from income said property parties said of the second part pay shall first all taxes of every may kind which be assessed against said or the income any necessary therefrom and expenses of administering the hereby created, trusts including rea- compensation sonable parties to the part of the second for their services, (5) percentum which shall be five of all disbursements by them, made remaining the net income payment of necessary expenses such taxes and parties of administration the pay of part the second shall over to part of the party first during for his natural life from time time, at least once each months, long party three so as the of first part shall capable managing of his and, own affairs, if party of part the first incapable shall become managing of affairs, his own parties then the of part may income, the second use said part, whole or in support party and maintenance of of part the first family residing him, his liability immediate then and incur therefor, pay persons furnishing the same to the the same out of said income. “Upon the death party of the of the part, first parties part shall, second out of income, said pay expenses funeral party part. the first Within year one after the death party part, parties first part the second shall also erect party monument part the first upon family Cemetery lot in the Calvary city said Louis, St. a cost of not less than one üt thousand dollars ($1,000.00) and following charities, religious following pay

shall sums to the namely: Louis, organizations city of St. said educational Church, dollars one Borromeo Italian “St. Charles .thousand School, five dol- hundred Borromeo Italian ($1,000.00); St. Charles Asylum, Orphans one ($500.00); St. Borromeo Italian lars Charles Infirmary, hundred Mary’s St. five ($1,000.00); dollars thousand dol- ; Society, five hundred Vincent Paul ($500.00) St. de dollars dollars five hundred Association, ($500.00); St. Louis Provident lars Poor, dollars four hundred ($500.00); Sisters Little dol- Shepherd, hundred two of the Good ($400.00), and the House Sanitarium, hundred dollars two Rose ($200.00); lars Mount St. Church, hundred All Roman Catholic two ($200.00), and Saints Cassamarion, Bernard’s Church the St. ($200.00); and to dollars parties which sums 'the ($200.00), all of Italy, hundred dollars two property. income out part pay shall the second parties part, first party “After the death of party of pay to the net income of said part shall out the second life, her natural during for and part, Madeline the third ($250.00) fifty dollars- and hundred the of two less than sum not each month. request of

“At the the said Rossi at Madeline time after any party part, parties the of the of the' first death the of the second hereby part pay exceeding authorized directed to her are to not income, fifteen thousand dollars in one sum out of said net pay said net shall not be sufficient sum the event income to said thereof, parties part have, or part said of the second shall are hereby granted, to re- power the borrow whatever sum shall be Rossi, quired pledge said pay to said to Madeline and to amount S, part Rossi, of security the a of said D: loan the assigned any sold to loan Incorporated, hereby, but so them parties part discharged shall be by the obtained of second remaining said income possible soon as of the net out fifty per month payment of two hundred and dollars the sums of hereby monthly to said made to Madeline directed be paid directed to be sums hereinbefore payment other .of has been made. party of “The part the first also hereby directs parties said of part that, the second management of the affairs of S. said D. Rossi, Incorporated, death, after his only so much net of the corporation income of said as shall required be pay- to make the ments to said Madeline payments and the other hereinbefore made, apart directed be shall set as dividends, and that to. corporation remainder of the net income of said be accumulated provide from time to sinking fund with which off pay by indebtedness against which is now secured deed of trust part property corporation owned by said and to im- make

provements property on corporation of north situated on the side Delmar city. of Boulevard, opposite Skinker Boad, in said After said indebtedness secured have been deed of shall paid, parties shall, management said part second said corporation, per ($5,000.00) cause five thousand annum dollars net corporation purpose of said income to be set aside for the improving buildings the north property suitable said on paying improvements, side of Delmar Boulevard for such corporation dis- the remainder of net of said shall be income dividends, ivhieh, tributed as be received out of when the same shall parties part, they pay Madeline second shall said paid her, Bossi and the the sums hereinbefore to be- directed parties pay remaining they after such shall payments balance part Bossi, pro- the third other than said Madeline as hereinafter incorporated corporation term said was vided: Should the for which created, said terminate of the trusts herein before the termination corporate existence parties part of the second either extend the shall corporation over the corporation form a new to take or corporation shall be con- new corporation, of said which Bossi, Incorporated, was said S. D. manner as ducted the same part. second parties conducted “After, the death said Madeline Bossi parties part, successors, or their second shall, until death the last parties survivor part, the third pay over remaining to the parties part equal the third said net parts, income in share and alike, share quarter, least once each and should of said parties part die, the third either before or after death of Bossi, leaving surviving said Madeline him her children, or a child or descendants, or parties other then said part of the- second or their pay successors shall child children or descendants such party part, longer of the third no living, who is the share of such parent would income their have received were he or still living, she or expend or the same support, use for the maintenance or education descendants, of child or children any such or in the event of parties part die, of third the the either before or the death leaving surviving of Madeline Bossi him children, said or no her descendants, shall surviving but leave or or a husband wife party actually shall part dying whom said of third so have been then, death, upon or living his her of such at the of the death part, parties part party pay third of the second shall of the said surviving party wife deceased of husband or of such to such during life, long and so she part for his her as he third or or share of said of unmarried, of the net income shall one-half remain part of would have been entitled party the third said deceased died, part not and the party of the third remainder to had said part third in party of such in- of share of such deceased paid come shall other of their parties part the third or equal or children or in descendants parts, the children descendants taking together share party part of of third any deceased parent of part their in such of said income. of third parties

“After the death of said of the last survivor successors, shall part, part their or parties of second money in assign, then convey property transfer all of parties of the their of hands to the male children or descendants Harvey living, J. part, then third Victor D. Rossi and equal parts per stirpes. using “In the words ‘descendants’ or ‘child’ or ‘children’ instrument, only this children or descendants of children natural born are intended. “Said paid income to be applied or by parties of the second

part for the benefit of the parties of the third part, or their children respectively, shall not be or payable due periods until such or times by as shall be parties determined part, of the second and when so payable, due and paid shall be over to and received parties part any the third clear free and and all claims on part creditors parties of the of the part, third or children, their respectively, parties and said part, children, the third or their said shall right ho time power have the or anticipate, pledge, assign or paid transfer them, said income to be respectively, or used support maintenance, their or nor shall the parties of .the part third or their children, respectively, right power have the or pledge, assign, sell, any transfer, or in dispose manner of any them, may they, any acquire- interest or prior in said property assigned, conveyed the time the same shall be and delivered to parties them the or part, second successors. their any parties part, anyone “Should or them, third any or any them, proceedings any institute action or kind in any any purpose setting court at time for the instru- aside this ground whatsoever, ment, therein, on and be unsuccessful then parties part and in such of the shall pay event said second to each proceeding party part instituting directing of the third such or or assisting prosecution proceeding, in the institution or such parties dollar, party sum of one and all further interest of such or property or part, his children and third descendants thereof, conveyed hereby, shall and the income cease and the dis- property itself, from and the tribution the income part her shall party parties such or the third or children further, party parties not share such share paid, assigned, shall be part children and descendants third their conveyed parties part of the to second transferred and excepting part, Rossi, said Madeline or parties other of the third descendants, equal parts and share, in share as and and their children to property and when income portion of said distribution of the dis- paid and paid be respectively be shall or distributed to them. tributed. party “Said of the part first also right shall háve the to add to property hereby conveyed other property from time to time if

he so, shall see upon fit to do and delivery conveyance and property parties to said part by party the second part, parties first part the second shall hold the same under the same conditions powers and with the same and trusts as are declared herein with reference to property conveyed hereby, but the fact additional shall have been delivered and conveyed parties to the part the second shall be by noted an addition to this instrument made delivery at the time of said and conveyance. party part The of the first also reserves and shall have right any by writing in duly instrument hereafter exe- cuted and parties delivered him part, change the second manner, time and amounts of payments of both and income principal parties be made part the second hereunder.

“In event parties that either part of the second shall writing die or carry to further out and .decline the trusts herein created, hereby fully before said shall sur- executed, may remaining designate vivor or trustee writing a to be exe- acknowledged cuted, hereto, and attached a successor to the trustee or dying declining or aforesaid, trustees so to act the trusts and designated or successors so powers successor shall have all the rights powers and dying or trustee de- trustees so clining act, including right appoint upon successor part death or refusal to act further of his on cotrustees. whereof, party part “In witness of the first has hereunto set day written, parties his hand year above first part hereto, indicating of the second also hereto set their hands willingness acceptance hereby their the trusts created their to execute the same on the terms herein set out. Rossi,

“S. D. Rossi, “V. D. “Mae R. Haseman, ’’ Trustees. administratrix testified: hearing in the circuit court 'the At the on daughter who died St. Louis of Simon She is the living. Her is still 6, 1925, Madeline who December and of Haseman, Dallavalle, Clara Mae daughters, other father four left James, John, Peters, sons, Victor, five Salveggi and Sofia Aline Johnson, par- whose Harvey grandson, Harold Stanley, and a years prior eleven for about in California dead. She lived ents are “as a resident” St. Louis death, back-to but moved to her father’s D, E, F C, exhibits defendants’ July, 1926. She identified

929 G as statements of account by received her from defendants. She received two checks from defendants in connection with two statements but account, returned the checks to defendants. In explaining why she returned the checks she said: “Well, I dis- pute that copy instrument. The I received and the instrument my twenty that was read to days me after father died are not the ’’ same instrument. By agreement parties put the administratrix in evidence Rossi, given following testimony of Victor D. at hearing in probate court: “My name is Victor D. Rossi. I Clayton live at 7700 Road. I am in the coffee business. I am a son of Rossi, S. D. died who last December. I was and secretary am Grocery of the S. D. Rossi Company. As a trustee I possession have in my 120 shares stock of S. D. Rossi Grocery Company, D. Rossi owned S. in his lifetime. I hold that trustee, along as sister, with Mrs. my My Haseman. sister and I jointly trustees, hold that stock as in not our own right. individual of stock Those shares came into possession our on November 5, my 1925. I them from received father. The shares of stock that time stood his name. at in As secretary of the S. D. Grocery Rossi Company I in possession have my book company. and books account of that That minute. company not engaged is now in business. It ceased to transact business greater on 1926. part, all, June The but not its disposed They assets were at that time. Cohen were sold to L. Company. proceeds Grocery We have the bank. un- The corporation sold assets goods. of that are a of can stock We have got goods money can the books. accounts on We sold the greater I part goods. familiar of the can We still have some. was D. I corporation Incorporated. with the known S. as the becoming president company. am now the Prior president of that secretary. S. D. all of I was In Rossi owned his lifetime capitali- corporation of two The that outside shares. stock of $400,000. corporation Its assets consisted zation of that was sister, Haseman, I Jointly my possession estate. Mrs. have real right I D. Inc. transferred them 4,000 shares of S. any not claim to these shares We make my father’s death. do claim these possession of individually personally. We writing There was an instrument as trustees. of stock shares creating I was I a trustee. familiar of which claim to be this trust instrument. It was preparation execution with the original instrument January, 1922. We have the executed originals two with me. There were possession. I it haven’t our S. Rossi and the other D. trustees given to the was made. One instrument, S. duplicates the same of these Outside himself. kept instrument, knowledge. my executed Rossi other never No Eossi, Inc., dividends were earned or collected S. D. 1922, 1923, or'profits or 1925. The income from-the real estate Inc., during years held S. D. Eossi, paid my those was father salary. salary $25,000. yearly. paid He received It was around corpus The included in claim the trust I now exists Taylor at Market, is located Fifteenth and Delmar, at Kingshighway and Delmar and at Sldnker and Eoad Delmar. The property, personal. personal trust estate owns no real or The other checking incorpo- of D. his account S. Eossi when he lifetime ceased $25,- salary lump rated. When this annual a sum he received obligations. 000 pay he off deed of on used it his had He July property, finally paid 30, off 1925. which was He had no any only no deposit goods, time He had household safe box at any property in home. He have his own name what was at did not any his right kind whatsoever the time of his own at and any profits I not dividends death. Mrs. Haseman and did collect Company D. Eossi, Inc., Grocery Eossi at S. or S. from the D. profits of during father. All the these the lifetime of our salary.” father, Eossi, as paid directly S.-D. corporations to our were papers docu- put in evidence various and The also administratrix probate court and proceeding in the relating to the citation ments during affairs relating her business father’s various exhibits 1925, to income received de- years 1922, 1923, 1924 and and alleged death. after her father’s from trust estate fendants copies exhibits were the Among papers, documents and these 17) 7, 9, 10 4, 6, cover- (Nos. 2, 5, 8, 1, 3, certificates eleven Grocery Eossi D. capital of S. stock 120 ing the interroga- their answers to attached to defendants which Company certificates, of each .of On back court. probate in the tories n following indorsement: copies thereof, is by said as shown ‘‘ unto Victor sell, assign transfer hereby received, I value For capital trustees, shares of the Haseman, all the Mae E. D. Eossi and irrevocably hereby certificate, do within by the represented stock the said to transfer vice-president appoint the constitute power of with full corporation named within books of on the 1922. July 5, Dated premises. in the substitution Eossi, D. “S. Agent.”

“By Eossi, V. D. presence “In E.

“Mae Haseman. stamp'canceled.” S. cents U. revenue “Ten certificates, copies shown by of said On the face each thereof, appears: following indorsement January hereof in lieu No. issued and certificate “Canceled 1926. 16, Eossi, Secretary.” “V. D. According to the evidence adduced defendants, Simon D. Rossi years was seventy age about good and in health at the time of the execution of the deed of trust, on January 10, 1922, and con- enjoy good tinued to give health personal and to his attention to management of his affairs business until about 26, November prior' or about days ten to his death. He had been successful in business and had- pieces accumulated several of valuable real city estate of St. During period Louis. years of about two prior to the execution of trust, deed he had con- numerous the, attorney concerning ferences with his establishment of a trust family. estate for the benefit of his As the result con- these ferences, Rossi, the formation of Incorporated, S. D. was effected in August, meeting 1921. The first of the stockholders was held August 10, 1921. on At meeting D. Simon his daughter, Haseman, R. son, Mae Victor D. were elected as directors of company, and Simon Rossi president D. was elected treasurer, R. vice-president Mae Haseman was elected and Victor secretary Rossi company. was elected They continued respectively, until offices; hold these Simon D. Rossi’s death. The $400,000, company capitalized was assets its consisted en- tirely by capital of real estate Simon D. Rossi. conveyed it The 4,000 par divided $100 stock was into value of each. corporation begin 1, It resolved that business on January was 1922, secretary and were authorized to issue cer- president and the company. meeting of stock to stockholders of the At a tificates reported January 10, 1922, it that of directors on was of the board day year. On begun that company had business on the first January Rossi, day, 10, 1922, Simon D. Mae R. Haseman the same attorney, Simon D. went to office of Rossi’s D. Rossi and Victor by Simon executed of the deed trust were duplicate copies where Haseman, R. by Rossi and Mae Rossi, settlor, and Victor D. as D. 3,998 capital stock covering shares of the A certificate as trustees. Rossi, name of Simon D. Rossi, Incorporated, issued of S. D. him; signed is, he indorsed possession, by was in his and then A of said back certificate. blank on the to the transfer his name company, capital stock of said covering share of the one certificate Rossi, by him in the D. was indorsed Victor name of in the issued covering capital stock one share of the and a certificate way, same in- R. was name Mae company, Haseman, issued of said one way. D. Rossi then delivered Simon same in the by her dorsed certificates mentioned three and the of trust deed copy accepted the deed Haseman, they and R. Mae Rossi D. Victor of the deed under the terms trustees as certificates of trust as said certificates trust and the deed held have trust, ' salary president as Rossi’s Simon D. since. ever trustees such 1922; $20,000 $14,400 at fixed' at was company treasurer 1923; $25,000 at for 1924, $25,000 and at for 1925. Out of $84,400 this total of by received him salary during four years paid $65,313.14 mentioned he in liquidating indebtedness the company, being the same in the form aof note secured covering deed of trust the company’s real estate. performed He duties president and treasurer of the company. During his lifetime, no books of kept account were the company, “such as moneys cash received paid out. He didn’t keep anything except his stub book and his deposit bank book. That is by. what he went It was handled in the way he fit. signed saw He alone the cheeks company.’’ signed The checks were Rossi, “S. D. Incor- porated, by Rossi, S. D. President.” money He drew no from the company’s treasury salary. except his The net income of com- pany put surplus was into its A fund. (Plain- written statement I) tiff’s Exhibit made Victor D. Rossi shows all sums of money paid by company father, to his or for his benefit, “from 15, 1922, March 1925,” end represent the exact amount salary during of his years 1922 1925, inclusive. From Janu- 10, ary 1922, until death, their on father’s December 6, 1925, Mae R. Haseman and Victor D. Rossi voted all of the stock shares of of the company the annual elections of directors and officers company. They salary received no company during from the Shortly their father’s lifetime. father, the death of their original covering 4,000 certificates capital shares of the of S. Incorporated, D. were canceled and new certificates were issued in names of Victor D. Rossi and R. Haseman, Mae January 1926, under trustees the deed trust. On Victor R. Rossi and Mae Haseman were elected directors of company, president treasurer, Victor D. Rossi elected was and Mae secretary company. R. was elected salary The Haseman $3,500 per year. long secretary fixed at Not each was thereafter the company reported one of stock Madeline share transferred to thereupon vice-presi- elected as a and she was director and May 11, salary On 1927, company. dent of her was fixed year. beginning May of per month, 1st that The of $350 business management company continued under the of Victor was D. Rossi, and Rossi as its Mae R. Haseman Madeline and direc- officers company, payments of net income were made tors. Out of the trust, in Rossi, as the deed of and out provided Madeline to company dividends were of the net income of of balance paid time, to eleven of the twelve bene- to and declared, from time Davis, administratrix, estate, R. Theresa of the trust ficiaries share of said dividends. Defendants accept her having to refused (Exhibits C, D, of account statements various put in evidence D; Rossi, S. showing receipts disbursements of and 0), F and E, Grocery Company, from December Rossi and S. D. Incorporated,

933 1, 1925, 31, March to 1927, and the minute book Rossi, of S. D: Incorporated (Exhibit H), showing the minutes of stockholders’ meetings directors’ of company August 1921, from 10, May 11, 1927, copies original of the covering certificates 4,000 capital of shares stock S. D. Rossi, Incorporated (Exhibits 5). 43, copies The of said in appear certificates appellants’ following abstract of the record in the abbreviated form: (cid:127) “Exhibit 3. Certificate 1.No. “3998 Shares. Rossi, S. D. Inc. ‘‘Capital Stock, $400,000.00

“This certifies that D. Thirty-nine S. Rossi is the owner hun- niney-eight (3998) capital dred and stock D. of S. Rossi, Incorporated, paid, only full' transferable on the books person corporation upon this by attorney surrender of this properly Signed by certificate Victor Rossi, endorsed.” D. Secre- Rossi,' S. tary, president.' and D. back, signed

Transfer blank on S. D. Rossi. Exhibit 4. Certificate No. 2. D. Share of Victor Form as Exhibit name Rossi. same 3. D. Transfer blank endorsed V. Rossi.

Exhibit 5. Certificate 3.No. Haseman. Form Share in the name of Mae R. the same 3. R. Haseman. Exhibit Transfer blank endorsed Mae pertinent will noted in connection our evidence be Other appellate issues. discussion of the requested findings .fact, and administratrix

Both sides following findings of were requested law. The fact declarations of- findings: its by the circuit court as requested by and filed defendants St. Louis,-Mis- the city D. Rossi died intestate “That Simon 1926, December, 192'5, September, day and that souri, on 6th Davis, appointed administratrix of the R. was Teresa plaintiff, the Probate Court deceased, by D. said Simon estate Louis. City St. organized 1921, D. a said S. Rossi August, in the month “That capital Incorporated, with S. D. corporation known par $100 value 4,000 shares of the -into $400,000, divided organized, meeting aat corporation was this each; that govern- 1921, by-laws for the August 10, on stockholders, held its for the officers adopted, providing were corporation ment of authorizing duties, fixing their corporation of the officers, paid fix salaries directors board 10, directors meeting at a August on respectively; president its D. Rossi was elected Simon corporation, vice-president, Haseman, its R. Mae defendant treasurer, secretary, a resolution its Rossi Victor defendant and the n January 1, 1922. begin business on company passed was 934 "That on January 10, 1922, a meeting at' directors company, salary of said Simon Rossi, president D. as and treas-

urer, and for all might services he render company, was $1,200 fixed per month, payable at such times in amounts and such might required be by him, beginning with day the first Jan- 1922; uary, that thereafter, at the annual meeting of corporation January years held in 1923, 1924 1925, and board same of directors, consisting of Rossi, Simon D. Victor D. Rossi and R. Haseman, Mae was elected, this board of directors re-elected these same officers, and that meeting at the of the direc- salary tors in 1923 the of Simon D. Rossi $20,000 was fixed at for year 1923, meetings salary and at the 1924 and 1925 the of said Simon $25,000 D. Rossi per was fixed at annum. January 10, “That on 1922, certificates of were issued stock by corporation said 1 3,998 as follows: No. for to Simon shares Rossi, 2 D. No. for one share to D. Rossi, and No. 3 for Victor one share to R. Hjaseman; Mae that said certificates Victor issued to by D. immediately Rossi and Mae R. Haseman were endorsed in blank them, respectively, and to said D. Rossi; delivered Simon that on said January 10, 1922, conveyance said Simon D. executed Rossi in trust day January, 1922, duplicate, being dated 10th in the instru- cause, in ment offered in evidence this and also endorsed in blank said 3,998 Rossi, Incorporated; certificate for shares of S. D. that on said day, immediately convey- said Simon D. Rossi had executed said trust, R. ance in said Victor D. Rossi and Mae Haseman also executed they same, that after the same Simon D. executed said. said D. Haseman Rossi delivered to and to Mae R. Victor Rossi trust, together conveyance certificates copy of said in with said one 3,998 Rossi, Incorporated, S. No. 1 for shares D. stock Rossi; Rossi, D. S. endorsed in'blank S. D. the name D. and endorsed 2 in the of Victor No. for one share name share, in name one D. and No. for Victor blank blank, her of Mae R. Haseman endorsed retailed conveyance; trust that from copy of said himself the other for conveyance and said certificates copy said trust time said D. Rossi to said Victor by said Simon were delivered stock Hase- Rossi and Mae R. Haseman, Victor B. said Mae R. Rossi and same, have claimed possession' have and still man had conveyance, under said as trustees shares of own said subject terms thereof. Simon D. Rossi delivered 1925, November “That on the stock shares certificate D. Rossi the Victor each, $100 Company par value Grocery Rossi S: D. to endorse same him directed the. name, and paid, full Victor to said D. Rossi same and deliver his name him and in added to said Haseman, trustees, to. R. Mae

935 Eossi, S. D. Incorporated, under the terms of conveyance" said in trust, and that on November 5, 1925, said Victor D. Eossi endorsed said certificates in blank for said S. D. Eossi and in his name and delivered the-same to said Victor-D. Eossi and Hase- Mae'E. man, and that since said time they have held still and hold the same as trustees under said trust conveyance subject and to the terms thereof. “That the consideration for conveyance said trust was love and affection said Simon D. Eossi bore for his wife' and children, named as therein, beneficiaries obligations and the by assumed trustees thereby. named therein

“That at the time said Simon D. Eossi executed said trust con- veyance and delivered the with same the certificates- for the shares of stock therein, referred to good- -he was in actively health and engaged in grocery the wholesale business, as manage- well as the ment of the business of said Eossi, S. D. Incorporated; that said D; certificates for said shares of S. Eossi Grocery Company were by delivered him to said Victor D. Eossi while he good was in health prior injuries and by him- received about ten days before death; his that his death day on the 6th of December, 1925, was pneumonia, occasioned by resulting injuries from by received him- yard from fall in the surrounding residence, his days about ten n n n prior his death. Eossi, “That said S. D. Incorporated, during the lifetime of said - Eossi, year Simon D. dividends, declared no but each added some- ’ thing begun a-surplus account, in until 1922, at the end surplus 1925 $15,022.27; said amounted to that the death D. said Simon Eossi Haseman,. said Victor D. Eossi E. and Mae conveyance, under as trustees said trust received--dividends from Eossi, aggregating D. Incorporated, said S. $68,000, and from said Grocery Company aggregating $18,000. Eossi S. D. August 10, from 1921, death,

“That to the date -of his said president Simon D. Eossi acted and as director and -treasurer of by Eossi, Incorporated; salary S. D. voted to him president board directors for his services as treasurer and part by paid in him out for by was drawn or his account directed by him, president cash or drawn him either-in checks corporation.” findings in of fact rendered accordance judgment The ‘- -

is as follows: in-person day again plaintiff -the .and Messrs. comes “Now at this Bussell, attorneys, come Frumberg, Blodgett & ‘her and Laughlin, n George by. Lubke; Jr., W. and person defendants also the attorneys, Habenicht, Foristel, Mudd, Blair & their ^ Messrs. -day June, 1927, the 9th heretofore on having been cause this having fully the- Court and the considered^ court, submitted 936 being therein,

same now fully advised doth find the issues joined herein defendants, favor of the doth further find day time his December, death on 6th Simon 1925, Rossi right, D. did own had not no title interest in 4,000 capital Rossi, Incorporated, shares of S. D. evi- 3,998 January 10, 1 denced its dated No. certificates of S. N:o. for one name the name D. share of 'Victor No. share in one the name of Mae Haseman, R. Simon D. at the death and that said Rossi 120 right, no title or in and not own of had interest .did shares Company by capital Grocery S. D. Rossi evidenced of the stock 1, 2, 3, 6, 8, 9 July 1, 1922, 4, 5, 7, Nos. and its certificates dated 10 20 10, each, shares 17 for and said shares, and No. that 4,000 Rossi, of and capital Incorporated, of the stock S. D. Grocery capital D. Rossi Com- 120 shares of S. of stock Simon D. Rossi the pany were at the time of the death said and by Rossi property of and the defendants Victor owned D. conveyance Haseman, trust executed under a in R. as trustees -Mae January, by day 10th Rossi on the and delivered said Simon D. were defendants, as such trustees 1922, and that as said owners shares, that said and declared on are entitled to all dividends and D'. Simon of said of the estate plaintiff as the administratrix part any or deceased, right, or claim thereto has no title Rossi, thereof. therefore, adjudged by is, defendants, the court that

“It Haseman, R. D. Rossi and Mae as under con- Victor trustees a veyance' by Rossi, executed and Simon D. delivered dated 1922, January 10, are the owners of said shares of stock and hold provisions pursuant conveyance same under and all such trustees are also entitled to dividends trust, and as shares, plaintiff and that not is entitled to declared on right, and has or the same from the defendants no title recover and be part thereof that the costs herein claim thereto judgment be plaintiff and that this certified to paid St. Louis.” Court of City Probate challenges validity of the deed of trust administratrix The not with the it was executed intention grounds, first, that on the trust, purpose evading the but for creating a bona-fide relating wills and tax the statutes inheritance state second, estates; that its terms and conditions administration do not meet parties in connection therewith acts of completely creation of law a exe- of the requirements testamentary and, fourth, character, it is trust; third, that cuted con- perpetuities. And she further against the rule violates that it assignment alleged proof of the a is failure there that tends Grocery Company. Rossi of S. D. the stock 120 shares

937 having I. This originated case law, as an aetion at having been tried as probate such in the court and court, in the circuit court, indicated, as a^ove will so considered this 1919; 62 66, R. S. Sexton, [Secs. Sexton v. 295 Mo. 134, 243 315; S. W. v. Clinton, Clinton Mo. S. W. 1.] question

II. The of whether or not the deed trust was executed with of creating the intention a bona-fide trust will be considered

™ connecti°n question "with the of whether or not completely executed trust was created instrument and the acts parties in relation thereto. n deed of The trust names D. Rossi party Simon part, of the first and Victor Rossi Haseman, D. and Mae two his children, R. parties part, second his wife, Madeline children, including ten Victor Rossi Haseman, D. and Mae R. his grandson, parties part. Harold G. Johnson, as the third It party hereby the first sell, assign, recites “does transfer parties part" set over unto said personal the second certain property, namely, capital “four thousand shares together Incorporated, Hold, S. To Have and To any thereof, any acquired together with the income property may property thereto, provided* hereinafter which be added Trust,” powers, In certain and purposes, for uses and with certain limitations, subject and to certain and which there- reservations are provides It that the trustees shall and collect prescribed. inafter power to property; and the income of the trust have invest the income; pay taxes acquired with and dispose any property of necessary ad- expenses against and property the trust assessed income hereby created;” pay ministering trusts the “net “the life;” during natural part first for and his party of over and, to religious, money pay certain to certain death, his sums upon payments institutions, certain and make charitable educational and property; widow, income of trust out of the net money to his sinking provide income of said net and, of the remainder out trust by a deed of secured pay off indebtedness which to fund with make Incorporated, and of S. estate against the real estate; distribute real pieces of said certain improvements on parties dividends, income, to net of said the balance after widow; and, death his than part other third property the trust income the net widow, pay his “un- alike, and share share part, the third remaining parties third parties last survivor death til die, part third parties of said any event and, in the part;” children widow, pay to the his death of after or before either 938. or- other descendants of party such the share of said income that party such would if living; receive and, any in the of said event parties of the part die, third either before or his leav- widow, after

ing a husband or wife with party whom such actually living was at no, the time of his or leaving her death and children or other descend- ants, pay to such surviving wife, husband or or during his life, her long so as he or she shall remain unmarried, one-half of.the share of said income that such party of part the third would if living, receive pay other one-half of party’s such share of said income to parties the other part, the third chil- their descendants, dren or any equal parts, the children or descendants party part “together” deceased of the third taking the share of their parent deceased part in such income; and, of said “after the- death of the last parties survivor part,’.’ of said of the third all of convey property the trust to the male children or descendants Harvey Victor D. Rossi and living, parts J. then equal per stirpes. It further provides that said shall income be due and - payable parties part of the third or their children at such shall times as determined trustees, parties be that part third and their children anticipate, shall not pledge, assign, they transfer, any dispose nor in of, any manner interest may have in the before is the same - assigned, conveyed provides or delivered It to them. further - the trustees shall not sell or stock, transfer said shares of nor corporation, the same to be transferred on the cause books of the party, during consent; the lifetime of the first without his written voting shall him permit to vote or to said shares direct meetings corporation of stock at all of the stockholders of the may corporation to hold such offices in as. he desire until said consent; and, his written of stock shall be transferred with n n stock shall death, said shares of be transferred on the - corporation except share, trustees one which books trustees, person a third hold shall -transferred to may corporation three stockholders. In this have order agrees party indorse and deliver to the first connection by corporation him from checks received all dividend trustees stock. covering shares of on said dividends party right, shall at that the first have the provides It further conveyed; property therein property to the other -time, add to by be held trustees property shall such additional and that conveyed; and property therein as the conditions same under conveyed shall have been property additional that fact that by noted an addition to shall trustees delivered and delivery. conveyance such and time at instrument” “this right party first .reserves provides further it And in- both payments and amounts manner, tíhangé the principal come and to be made tbe “hereunder” .trustees duly an writing instrument executed and delivered to trustees. Manifestly purpose it provide was the of Simon D. Eossi happiness future comfort and his wife and children grandson, protect against against and to them misfortune, perhaps their improvidence ability. own lack plan of business His - accomplishment upon the. purpose of that advice adopted was attorney thorough a his consideration of the matter on part. his "We must assume that he intended to do what thé deéd attempted instrument, together of trust he If shows to do. it, with a trust, what was created done connection valid be; And, it should carried beneficiaries. then out in favor of the opinion, clearly appears intended, our it that he the time trust, trust, to establish bona-fide he executed the deed of necessary that he and the trustees did that was to es everything legal trust completed trust, property tablish a with the title to the -trustees, equitable life in his children vested in the and with estates n grandson, Johnson, Harold G. in the net income of the trust children, and, any of property, upon the death of his his parties, their grandson, last survivor of such until the death of the wives, under husbands or descendants and their children or other income, parts being certain conditions, entitled to certain the net income right D. Eossi to receive subject of Simon to the. subject life, and, death, during after his his of the trust during her money his widow payment certain sums religious, money to certain -certain sums of life, payment of and to the cer institutions, payment of and to the and charitable educational Incorporated, Eossi, S: D. indebtedness'-against real estate of tain on certain improvements certain cost of payment of the and to the supported amply are opinion we In this pieces of said real estate. jurisdictions. other. facts, in this decisions, upon similar based Banking Harris 617; 642, 43 S. W. 141 Mo. Soulard, re Estate [In Brown, 629; Sims v. 89 W. Mo. S. Miller, 190 Co. v. e(Mo. 20 W. Sup.), S. 624; v. Pearc 58, 158 S. W. Mendenhall Mo. Hackett, 78 45; v. Y. Stone Prentice, 104 N. v. (2d) 670; Van Cott Kelly 72; Parker, v. 32 R. I. Talbot, (12 Gray) 227; v. Talbot Mass. Potter, 423; v. Iowa, Innes Curnutt, 130 49; v. 181 Ill. Lewis 109 Cal. Emery, 323.] 320; Nichols v. 130 Minn.

By delivery of covering the deed of trust and the certificates 4,000 Eossi, Incorporated, shares S. D1. -di the settlor legal himself of the title to said vested stock and vested trustees, purposes specified in it for the uses and in the deed of True, property, trust. he reserved a beneficial interest in the right income during to receive net derived therefrom purposes this of the declared trusty lifetime. But was one validity. not affect He could well in did its make the net 940 payable

come to himself during his person. lifetime other re Estate Soulard, [In Stone v. Backett, supra.] Moreover, his reservation of the net income of property the trust is life strong evidence his intention to prop transfer title to the subject erty, to that Latham, reservation. v. 113 Mo. [Williams 101; 174, l. c. 20 S. W. l. c. Sneathen, Sneathen v. 104 Mo. l. c. 16 209, S. W. l. c. It makes no difference that he received 499.] salary income form of Rossi, Incorporated, this in the from S. which president Talbot, supra, he was treasurer. v. [Talbot certainly l. privileged c. And pleased. he was to do with as he 93.] it paid against The fact that he indebtedness real estate corporation merely salary out his indicates purpose it was his property increase the value of the which put family had he trust for the benefit of his after his death. completely was it inconsistent with a executed for him Nor voting right to vote or direct the shares of to reserve corporation right and the such stock hold offices in he title, powers, of reasonable was not a reservation of but desired. That trust, protection equitable right of his coupled with for the during his lifetime. of the trust to the net income [In Prentice, supra.] Soulard, And, v. Van Cott Estate of re while one of the trustees testified that he and the other trustee voted said meetings shares stock all of the stockholders of corporation, may it be assumed that the settlor directed the voting of said shares of meetings stock at all of during such lifetime. provision Nor did the of trust the deed that said shares of stock should corporation not be transferred on books of the settlor, consent, until after except by the death of the his written prevent complete legal transfer of the to said title stock praesenti, by-law notwithstanding corporation, of the which says, company only “The stock this shall be transferred on the every subject company, books transfer shall be any debt,” the lien company thereon and Section 9743, 1919, R. says, every company S. which “The stock of formed personal estate, this shall shall under article be deemed and. be by-laws prescribed manner transferable in the of the com pany; previous until all calls but no shares shall transferred fully paid in.” Co. v. Good shall have been thereon [Insurance fellow, 150; Spring Harris, 383; 9 v. Mo. Mo. Chouteau Co. Richards, 74 377; 77, approving Bank Bank, v. 52 Mo. v. Mo. Moore case; 454) App. Wilson Appeals (6 Mo. same decision Court of 286; Savings & 588, Mo. 18 S. W. Trust Co. v. Ry. Co., v. is 447, 24 W. “It evident 118 Mo. S. Co., Lumber 129.] 15) XII, inhibition on transfer (Art. Sec. makes no Constitution than in other modes the formal one corporation stock of a 739, (Sec. R. S. same books, nor does the statute upon its

941 9743, 1919) prohibit as Sec. S. transfer, R. the usual method to-wit, by the by-laws, transfer the certificate. in The it seems instance, prohibition; general this make such but the current authority validity admits the of transfers books made outside of the corporation, adjudications holding transfer, such some that though books, passes legal title; not recorded on the and it is generally regulations by-laws held that such made in the are made for benefit, protection corporation itself, and convenience of the incapacitate parties, not for third and that do they not the stock interest, assignment, parting from his and that his holder with though passes not his to books, on the title the stock. This entire appears ruling generally in custom not to be accordance a if universally prevalent a world; in the commercial custom should which lightly by Ry. Co., supra, not courts.” v. be disturbed [Wilson 108 609, 18 Mo. l. c. S. W. l. c. it Nor was inconsistent with 296.] right change a valid trust for the settlor to reserve the “to manner, payments” by to made and amounts be trustees, provided Snow, v. 185 as the deed trust. [Kelley power Mass. Even the reservation of to revoke trust a 288.] change Brown, does not it invalid or its character. v. render [Sims Prentice, Hackett, Talbot, Kelly Van v. v. Talbot v. Cott Stone Curnutt, supra.] “Although Emery, v. v. Parker, Lewis v. Nichols good reserved, the trust is as and effectual power of revocation is irrevocable, power Perry if Trusts until exercised.” on is [1 (7 Ed.) & Trustees sec. 104.] by holding was completely

III. In executed created that a trust delivery covering 4,000 a trust certificates dehd of and the Rossi, Incorporated, we answered of stock S. D. have testamentary char o'f trust is argument the deed The settlor acter, masquerading as a “a will deed.” property trust having income of the the net reserved begin until did not during lifetime, his duties trustees active But, postponement of the active duties such his death. enjoyment bene trust estate trustees and of the change instrument, other this ficiaries the settlor does not other than testamentary its nature. trust, an instrument wise a deed of to 627, and S. l. c. 67, 158 W. Brown, supra, 252 Mo. l. c. v. [Sims a involves the idea very trust “From nature its cases cited.] legal When a title. from the beneficial interest separation of the delivery simple conveyance to' executed is present immediate pass an serve trustee, and instrument that act matter far in the future que trust, how no the cestui interest to may deferred.” provided thus enjoyment benefit [Lewis may “A man desire Iowa, 130 l. c. Curnutt, supra, 432.] v. administra avoid his lifetime disposition make Indeed, tion of his estate after death. fact, in view of the both patent painful, expensive the fiercest litigation, most engendering the feelings, springs up wills, bitterest over such a is given legal desire not unnatural.1 it And when is expression, gifts during life, by gifts absolute during in trust life, or (cid:127) voluntary settlements, is manifest, only there not an absence of ’' testamentary intent, an hostility but absolute such intent. Emery, v. 331; see, l. c. supra, also, Cal. Van Cott [Nichols Prentice, Kelly Parker, supra.] v. v. Innes Potter, v. argued grant equitable IV. is that attempts pass It “the the life, title Rossi’s for children one-half the remainder to their surviving spouses life, for over on death of remainder the the last children or survivor'to the male descendants of Victor ’’ living, against Iiarvey then and violates' the rule perpetuities might postponed because' the “remainder over” be be years yond (twenty-one being period the limitation life in grant) by surviving interest of a at the time of the the life” “for spouse (or of of grandson, one of children his Harold Gr. Rossi’s Johnson), surviving spouse such be if born after the time of the grant. support argument the In of administratrix makes two this first, over,” providing contentions: in “the remainder or that trust, last termination of “after the death of the survivor the parties part,” the of'said of settlor intended to include the third grandson spouses of surviving of his children and in the class bene and, designated second, parties part,” ficiaries “said of the third that, though words, parties part,” “said of the third are even construed, produced by provision is not so the same result shall, .conditions, pay a sum trustee under certain certain of surviving’ spouse during or money such “for and her any long life, so as he or she shall remain unmarried.” (a) In the first of the instrument the settlor’s paragraph respective grandson designated, their widow, ten children and are “parties part.” And, names, the third while words of provisions in of part” used various “parties of the are third instrument, nothing four which indicates there is within its corners designation persons any person or an intention to include in that grandson. Surviving children widow and than the settlor’s other in grandson mentioned one children are spouses of settlor’s reads, part: only, which in provision widow) (the Rossi settlor’s said the'death said Madeline “After of (trustees), successors, shall, or their part the second

parties of part, third parties of the death of last survivor until the of net parties part said income remaining third pay over of quarter alike, least once each equal parts, share in share and' parties of said other providing for children or descendants (thén part), third parties event the third die, part before or after the either death of said Madeline leaving surviving children, or him her no descendants, or shall but surviving leave party a husband or wife with whom said part actually living third so shall have been dying at the time of death, party upon his or her then part, death such the third part surviving parties pay said the second shall to such husband part party during wife of such deceased or third life, long shall unmarried, his or her and so as he or she remain one-half of the- share of income of party said net said deceased part party the third would have been entitled to had said of- (then part providing not other half third died such part paid parties be to the other third or share of the their children (Our equal parts):” italics.) or descendants in Immediately following provision this' is the provision which reads: parties “After the death of the last survivor third part 'successors, assign, or part, parties the second their shall convey money transfer and all then their hands parties part, male children descendants the third -equal parts per Harvey living, D. Rossi and J. then Victor n ., stirpes.” that, will noted It provision, above quoted, relating to the distribution of the net income the trust property after the death of widow, the settlor’s- the settlor’s grandson children and to are referred “the remaining parties as of the third part,” and parties as “said of part,” the third parties and as “the of third the part,” surviving and a spouse of of the settlor’s children or grandson of his is referred to as surviving “such husband wife or party of such deceased of the part;” third in words, other the grandson settlor’s children and spouses and their surviving pro- are separate for as vided two classes of beneficiaries. perfectly It is clear, that, therefore, providing in for the over,” “remainder or trust, the termination the “after the death of .of the last survivor parties intend, part,” of the third settlor the did not to of surviving spouses include grandson of his children and among the ‘‘ ’’ designated persons parties part, as the third and the words parties part” third interpreted. “said the cannot be so (b) It be noted also will that the distribution of the net income property trust the death of the widow the settlor’s is death, only “until the of the last parties authorized survivor of the part,” surviving spouses parties and that of the of the third of the only contingent part have interest the income third which is parties instance, the the given, part. in the first to third Thus provides instrument for trust it is seen termination of that for over,” payments such income or the “remainder time, trust, is, at same that at the termination death of express two part. These third parties last of the survivor think, show, that plainly we instrument provisions the trust deceased surviving spouses of for provide did intend not settlor last survivor of the death part after the third parties notwithstanding provision part, the third parties of spouse a deceased surviving to a payments of income certain long life, and so during or her part “for third party of the unmarried,” think that these and we remain shall or she he harmony inis This construction construed. so provisions should validity uphold objects and will trust general of the with the con- administratrix which the construction for The trust. of the instrument of the express provisions trust with two is conflict tends though conceded And, it be even trust. invalidate and will it constructions, both of these susceptible of fairly is the instrument against rule offend will not which duty adopt the one is our (3 Perpetuities Against The Rule on [Gray perpetuities. against Ed.) (7 sec. Trustees Perry Trusts on 499; 1 633, p. Ed.) see. p. 381, 638.] agree we not in either do the administratrix

It follows instrument, mentioned, and that trust the contentions above provides over,” it, “remainder termi- we construe trust, persons last survivor of upon the death nation of the interests, being the creation the remainder twenty-one years. an additional period limitation includes whereas the Ed.) 201, p. Perpetuities (3 Against sec. [Gray on The Rule 174.] brings V. This us to the final contention of the administratrix —that there is a proof failure of assignment shares of stock of S. D. Grocery Rossi Company. it That was within the scope of the original plan settlor’s property add other original is indicated provision instrument, therefor the trust which he executed and delivered the trustees January on 1922. According to testimony given Victor Rossi probate in the court, which put administratrix the court, evidence the circuit he sister, Haseman, jointly Mae R. have held these shares of stock as 5, 1925, trustees ever since about month prior November one death, the to settlor’s when the same were “received” from the possession and, settlor and came into their as trustees; at immediately prior thereto, these shares of stock were owned the settlor. As by shown above our statement of evidence, following appear indorsements on each of eleven certificates covering stock: these shares of

On the certificate: back of each

945 hereby “For Received, I sell, assign Value and transfer unto Trustees, Haseman, Victor D. Rossi and R. Mae all shares Certificate, Capital do represented by Stock the within hereby to irrevocably appoint Vice President constitute and Corpo- transfer the said Stock the books of within on named July power premises. ration full with substitution in the Dated 5, 1922. presence

“In S. D. By D. R. V. “Mae Haseman. Agent. “Ten Cents U. S. “Revenue Stamp Canceled.”

Op the face of certificate: each “Canceled and Certificate No. issued lieu January hereof 16th, 1925. “V. Rossi, Secretary.” D. From the on indorsement the back of each certificates, may reasonably it be inferred that the settlor wrote indorse- ments, or caused the to July same written, 5, on 1922, with signing intention of said indorsements assigning and of these shares of stock day, to trustees on that or sometime thereafter, as property. However, additional trust signing of said indorsements or similar indorsements the settlor was not essential to a valid assignment of these shares stock. If the settlor delivered said certificates to on 5, 1925, the trustees November thereby and intended assign these shares of stock to the trustees as additional trust property, legal title passed to these shares stock to the trustees time, subject at that to the terms and conditions of in- the trust strument. From the indorsement on the face of each cer- of said tificates, appears it shares stock these were transferred on Company of S. D. Rossi Grocery the books to the Jan- trustees on uary 16, days one month about and ten after death expressly The trust instrument settlor. authorized the trustees 4,000 Rossi, Incorporated, transfer stock S. on company settlor, pro- books of the after the death and it property the trustees shall vides that hold additional trust “under powers” are the same conditions and the same declared conveyed. thereby therein with to the If the reference Company assigned of D. Rossi Grocery shares of stock S. were 5, 1925, additional settlor on November to the trustees provisions then, by above-mentioned property, trust virtue instrument, power, were vested with the trust the trustees on shares of assignment, transfer these of such the time settlor. The company the death the books of the that “the fact that additional provides further instrument parties conveyed delivered property shall have been addition this part shall be noted an (trustees) the second 946

instrument made at tbe delivery conveyance;” and, so far shows, as the record such no addition to trust instru- ment was alleged delivery conveyance made at the' time of the of these stock opinion, shares of the trustees. in our But, a conveyance failure to a note ad- of additional trust property an conveyance. dition to the trust instrument would not invalidate such a finding evidence, it, as we view support is sufficient to And covering settlor delivered the eleven certificates Grocery trustees, stock of S. D. Rossi in- Company to the tending thereby assign shares of stock to the trustees as these assign property, thereby additional trust and that he did these property, as additional trust sub- shares of trustees ject terms and conditions trust instrument. voluntary completely will It well executed settled is Indeed, carry ever in- enforced. courts are anxious out the parties or declarations of as manifested their deeds tention of trust. findings fully warranted its of fact court was The circuit judgment accordingly right conclusions law. The is clearly its Cooley, CC., concur. Davis and affirmed. a- foregoing opinion HeNWOod, C., is CURIAM: ’The PER Blair, J., White, J., con- P. opinion the court.

dópted J., cur; Walker, absent. Ray (2d) 958. Appellant. S. W. Decker,

The State v. Two, 20, 1930. December

Division

Case Details

Case Name: Davis v. Rossi

Court Name: Supreme Court of Missouri

Date Published: Dec 20, 1930

Citation: 34 S.W.2d 8

Court Abbreviation: Mo.