276 Mo. 136 | Mo. | 1918
I. These are suits by one of the children of Roger E. Harding, against his executor, to recover certain street railway bonds, and also the amount collected by the executor upon certain coupons attached to said bonds.
The answer _was a general denial, coupled with a plea of the Statutes of Limitations of five and ten years. Issue was taken by reply. The defendant had judgment and the plaintiff duly appealed.
II. The preponderance of the competent evidence in the record shows the facts upon which plaintiff’s
This letter also inclosed a list of the bonds and their estimated value at-$17,005.
On December seventeenth, Roger E. Harding, still in St. Louis, wrote plaintiff, stating that he did not know what his address would be in Los Angeles, but to write him in care of his daughter, concluding: “The safe deposit box is the same. I have made no change. No. 1233, same as the number of your residence. Before I went to Europe I told you about the 14 bonds, and had you take down the numbers. There are now 16 bonds in the package (all I had) enclose copy of endorsement on package. These bonds are now worth $17,000 or more.”
The endorsement referred to in these two letters is, to-wit:
“St. Louis, December 1897. “This package, containing valuables, is the property of William H. Harding, of 1233 Dean St., Brooklyn, N. Y., and I hereby direct my administrator or executor to deliver it to him unopened.
Roger E. Harding.
Witnesses:
“George E. Harding
“ T. F. Turner
“R. D. Rash
“Heavy envelope sealed with five seals.”
After the daughter of Roger E. Harding, who lived in California, had been granted a divorce, she
The trust officer who opened the safe deposit box in order to make an inventory after the death of Roger E. Harding, states that it did not contain an envelope sealed and endorsed as described in the memorandum sent to plaintiff, and that he thought the sixteen bonds were lying loose in the box.
Roger E. Harding gave plaintiff a house in Brooklyn, $12,500, and $7,000 in bonds for the education of a son of plaintiff and grandson of the deceased, and also made plaintjff beneficiary of a five-thousand-dollar life policy, and by the terms of his will excluded plaintiff from his estate, stating that he had received all that he was entitled to.
Unless the foregoing fact established a completely executed trust in the sixteen bonds claimed by plaintiff, this suit must fail.
It is equally elementary that such a trust can be enforced only upon evidence so clear, full and demonstrative as to banish any reasonable doubt from the mind of the chancellor as to the existence of every element essential to the establishment of a complete express trust in personal property. [Northrip v.
The authorities are uniform (many of them cited in the briefs of the parties) that equity never enforces a mere executory agreement for a trust, which, like the present, is wholly voluntary. If the trust had been completely executed, as prescribed by law, then the question of consideration would be of no moment; but where, as here, no such trust was shown by the language relied upon to establish it, it necessarily follows' that, theuo could be no decree of enforcement. The obstacle Ho any relief in this case arose upon the infirmity of the written agreements relied upon to support the action.
No executed and completed trust having been shown by any evidence whatever, it becomes wholly unnecessary to speculate as to what use, or for whose contingent benefit, Roger E. Harding intended to devote the sixteen bonds in case his executory agreement had ripened into a fully consummated trust.
As bearing on his intention not to create an irrevocable trust, it is also significant that he did not by any language or act, convey any present equitable title to plaiotiff nor deprive himself of the full úse and control of the bonds in question, which the record shows hé exercised during his life and without question by the plaintiff for a period of seventeen years after the date of the letters and endorsement relied upon by him to support his claim. That these suits present matters of purely equitable cognizance, is manifest from what is shown in the record and, indeed, is frankly confessed in
Holding as we do that the plaintiff has misconceived the legal effect of the writings relied on to support his theory and hence has necessarily failed in adducing proof of any equitabie title in him to the property in dispute, it follows that the judgment in favor of the defendant is manifestly correct and will be affirmed. It is so ordered.