*1 Alice P. Merz Szombathy) Tower Bank & v. Grove (now Alice Adolph Merz, Executor Appellant; Company, Adolph Merz and Jean Estate of Julius J. Merz. Merz; M. (now Alice P. & Szombathy) Tower Bank Alice Grove Adolph Defendant; Executor Merz, Company, Ap Merz and Jean J. Estate of Julius M. Merz, ;Merz (2d) 611. pellants. S. W. One, July 7,

Division 1939. *2 n Frank Anderson, Gilbert, Wolfort, Allen & Bierman Coffman Merz and others!-\ *3 Dubail, Judge & Winter for Tower & Company. Grove Bank Trust Habenicht, Foristel, Mudd, *4 Salkey Oscar Blair '& Habenicht and & Jones for P. Merz. Alice cross-appeals There

DALTON, equity. is a suit in are C.- This here) as the widow of (respondent certain Plaintiff defendants. deceased) seeks to set aside con- (hereinafter M. Merz called Julius veyance to defendant Tower Grove in trust made the deceased Company) as be- Company (hereinafter called Bank & Trust being testamentary ing in fraud of her marital conveyed thereby. the assets one-half of and to.recover character defendant, here) both Company (appellant was made The Trust as one under the declaration and as'trustee .and *5 Appellant Adolph under the will of deceased. the executors of deceased, heir at of was made and sole and law de- Merz, brother of the capacity, and as one executors under in his individual fendant deceased, in the of de- the will of and also as trustee named will in re- separate these filed answers their ceased. Bach of defendants answers, Appellant Adolph Merz, in one of his spective capacities. convey- cross-bill, charging that the what is referred to as a

included in this later: in trust void toto. We shall consider cross-bill ance was parties persons interested in. the trust defendant included es- Other tate, among Merz, Adolph J. of them Jean son Merz and nephew of deceased. conveyance (l) trial court held that the in trust was while

The impending and a view deceased was conscious of death with defrauding plaintiff Her in marital conveyed conveyance (2) in half in- trust; that the was void as to a in same plaintiff ; terest and that was entitled to recover (3) plaintiff found the issues on the in favor certain cross-bill against Adolph Merz, defendants and of the other defendant as one deceased, cross-bill; (4) of the executors and dismissed conveyance' respects in as except valid all declared the answering (5) found the issues other de- plaintiff; fendants. Company,

From the above decree the Trust as trustee under the conveyance trust, appealed. Adolph in Defendant in his Merz indi- capacity together as deceased, vidual executor under the will of Merz, jointly separate with defendant J. appealed. Jean have The separately have appeals been but here. briefed have been consolidated appeals shall We consider in the above order. Company,- as trustee under declaration and

conveyance trust, assigns (1) in in error in record follows: dismissing plaintiff’s entering judgment appellant; bill and (2) holding in conveyance that the with a of de- executed view frauding plaintiff rights; her (3) holding marital in in trust void as to one-half property conveyed; (4) interest basing judgment testimony on improperly evidence; admitted (5) providing in not expenses compensation that the paid assignments require trustee out the trust estate. These consideration of the cause on its merits we shall consider the assignments together. three first petition alleges plaintiff’s husband, deceased, late con-

veyed personal property of $300,000 by a value an in- excess writing strument dated November to himself and the Company, trustees, power manage fund, with hold reinvestments, (1) make investments and pay, the entire income (who therefrom to the donor until his death one trustees), during lifetime,, and at his per $200 death the sum of month to his (respondent) during lifetime, (2) widow her per the sum of $200 Adolph during month to his lifetime. It was alleged provided respondent instrument predecease Merz, should *6 lifetime during Adolph Merz pay should then said .his

the trustee re- predecease Adolph Merz month, per the sum of but should $400 the sum pay to Jean J. then the trustee Merz should spondent, appel- and respondent of both per month, upon the death $200 during Merz his pay J. Merz, trustee should Jean Adolph lant directed the trustee was month, death per upon his lifetime $400. per- other to the trust estate certain convey, transfer, and deliver by donor alleged that said instrument further petition sons. The any time and the trust' at right to revoke (deceased) reserved compensation to and fixed the to the trust add other assets fund of the execution alleged It that on the date paid to the trustee. long prior time conveyance trust, and for declaration infirm; that he confined thereto, sick, was weak deceased was brother, Adolph Merz, a doctor his under the care of his home nurse; that in Novem- practical medicine; that he attended was his leave thereto, unable to 1934, prior he was ber, some time immediately prior conveyance unattended; was made that the home brother; only by and one death; his widow to his that he survived was attempted entitled to one-half of the and that the widow was effectively charged that petition in trust. The to be conveyed death, conveyance anticipation in executed immediate trust was express pur- testamentary for the character, in and was executed was defeating defrauding respondent her marital pose of conveyed prayer petition of the to the trust. The naught trust be for held as to one-half was that declaration of the. for other and further plaintiff of the fund to which was entitled and relief. Company’s petition, both as trustee

Appellant Trust answers to the executor, except for certain admissions as to the death of de- and as general In the execution of the were denials. ceased and the testimony, respondent her hearing the trial court first offered before testimony Adolph then offered defendant Merz and certain testimony defendants, offered on behalf of other and thereafter Company. defendant 12, 1934; that evidence tended to show deceased died December years age; immediately past prior that

that he was his death Louis, respondent, wife; Adolph in St. with lawful resided law; heir at his sole and that he testate Merz was died probate; November had been his will dated admitted to qualified that defendant and Trust as execu acting such; provided legacies tors and were certain totaling approximately bequeathed and then $8500 all of the remain estate, personal, both real and to his der of widow his brother shares; the total personal estate, inventoried equal exclusive estate, approximately $16,000; trust amounted that certain appraised $28,500; was worth about real estate widow had been allowed for provisions and other allowances a- -total of $7600; and that the widow "duly had provisions renounced the will- and filed her election to take one-half of the real personal estate, absolutely, subject to payment of debts. The evidence further tended to show that on November deceased had executed and declaration in (all alleged petition above), set out and that deceased had trans- *7 ferred assets to trustee, as listed in a schedule annexed to the petition, of the face value of $330,000, subject payment of a loan $20,000, for which certain of hypothecated; the securities were that for of defeating respondent’s marital deceased April had on prior a will, executed This revoked will. will,

the later bequeathed Adolph residue of estate to deeéased’s Merz, to hold in trust therefrom, equally income be divided be- plaintiff tween Adolph Merz, providing if re- plaintiff that will, nounced the that the trust should be void. suffering

There was that- evidence deceased had been from chronic myocarditis year nephritis prior death; and chronic for about a to his kidneys; that the first disease effects the heart and the second the they always that diseases progressive, curable; said are are not that death; high pressure cause that the heart blood disease resulted kidney poisons discharged blood; disease that caused to be into physically mentally; these diseases affected deceased that de- palsy ceased from a shake; suffered and would that deceased was very man, might sick he knew that death was imminent that die any time.; time; that he confined to bed from time to that he was spells; improve relapse; had heart that he and then that he would strong, was never but in the last six months before his. failed death rapidly got weaker; that he attended a weaker and was reg- nurse, go unattended, brother, physician could not and his a out ularly get him; well; attended that deceased knew he could not that remote; he going he knew he was to die and the time that was getting order; days he was his affairs in that in a few told witnesses executing will, after in trust and his last settled he Doerflinger Realty Company took up his with the business $20,000 covering him; and that note for a balance due he endorsed gift in blank and had it delivered to his brother this note Merz. during year further tended to that last

The evidence show continually seeking limiting his his life method deceased some month, per death; an event of his that $200 wife to income that his take half though repeatedly advised wife would -able to. satisfied; was not that property, his the deceased he wanted his up given part of his tied but remainder wife’s looking Him outright; that he was someone who could tell brother it; times; that discussed the matter dozens of that de- he how do per month as drew $200

ceased seemed to think that because his wife not be en- marriage, that she should deputy circuit clerk before her -that any greater estate; that deceased knew titled to income from by will, but deprive half of his he could not his wife of thought by creating deprive he her of her a trust fund could property. control of half of his by someone

There was evidence that deceased had been informed that she his wife so that a trust could be created would bind get estate; that de- per than month from his could not $200 more Hornsby, Company to Mr. ceased had been referred to the Trust Hornsby friends; could who was one of his that he was advised trust; anybody else about a that deceased later do what could do Hornsby Doerflinger Doerflinger that visited his friend and advised alright. it for him could handle visited the The evidence further tended to show that deceased November on November November there; that depositor that he was a stockholder and his brother any way; accompanied twice, him at but did not intei’fere least president first and then deceased conferred with Hornsby vice-president of the officer; that Mr. trust officer and *8 advising as to what he Company; that trust officer Trust after the safety brought in; that a memo- wanted, deposit boxes were certain contents; preliminary that a outline randum made of their and was conveyance. that proposed trust was evidence was of a There made typewritten a checked on the next occasion the securities were signed; agreement receipt that a of the trust list and form Hornsby presence advised deceased the broken; that later the agreement proof and could not be was bullet changes were witnessed; that thereafter certain prepared will was agreement trust exe- agreement in the trust and a new form of made original draft of cuted; the first nor the that neither memorandums officer; that on one agreement retained the trust trust were the Company he became so at the Trust occasion while deceased was whiskey given up; him that while to to him to brace weak that had be he was home, prior ill at execution deceased was the affairs; up fix his get get out be able to up most anxious to prepared the agreement executed and will but that after the trust was that witnesses signed eased; mind was that he advised deceased’s better; he ready the that seemed he the end and the sooner was for prop- entirely disposition he had satisfied with made to be Doerflinger that he erty. advised evidence that .deceased There was Company that after- to the Trust up ;(cid:127) it that he had been had all fixed up; that sorry noon; to tie the Doc’s end that he was thing; agreement that was up” “to sew whole he hated Hornsby broken; that told him' it could not be “iron-clad;” that per month. $200 was limited to his wife that There that was evidence deceased advised brother he. had up; tied had to do (Adolph Merz’s) share of the estate that he prop- he it; broken; put that had to all that trust couldn’t month; erty per in the it stick limit the wife to $200 trust to make Merz) (Adolph he to treat him the same as that make it stick had -(respondent). he did her Joseph Hornsby, attorney, L. Company Trust called its vice-president as its His testi-

trust officer and a witness behalf. mony tended to that deceased several visits to show few, days; in a that seemed to he deceased know what questions; pencil memoran- wanted no that witness' made asked agreement dum what deceased wanted in trust and made a safety boxes, to-wit, pencil deposit memorandum of the contents of the securities; receipt that on the certain second visit signed witnessed; prepared was that de- changes agreement ceased wanted certain which were signed prepared changed and deceased came back and draft. He anyone' that he proof denied advised the instrument was fool and in- that talking. sisted did the He deceased testified that Mr. Milten- berger, president Company, had told him that de- very ceased man and that “there was a rich will and trust that ought Trust department get.” Witness testified that he was impression probably left with the that a half deceased worth actually nothing million dollars but that he knew the value of about estate; nothing creditors; that he asked deceased about deceased’s he legally trained; that knew and his deceased brother were not legal he inferred that deceased knew the effect of the trust but that him; did not he advise witness knew deceased was childless and knew that widow of a childless-husband was entitled one- property subject half of his debts; that witness knew and under- provision stood the trust get should never over $200 wife per month; that knew one of objects was that the should wife per more; be limited to month $200 and no that he it was de- knew *9 by way ceased’s idea a property to make total of of distribution his go by and of declaration trust and that whatever did not by trust went will, instrument, The the. will.- trust a schedule of receipt prepared by Hornsby securities and a therefor and were by signed Company. him of Miltenberger, presi- on behalf the Trust appellant dent of Company, was not called as a witness.

On among things 'the above evidence the Court other made the following finding; Merz, “The Court doth further find that M. Julius plaintiff’s husband, conveyance trust, late executed and delivered a in date, 28, of property November of the described in A schedule thereof, attached part thereto and made a as hereinbefore found and Court, forth set actually and personal property delivered the his in lifetime to defendant-Tower' Bank Company, Grove and Trust day thirteen named, November;'

the trustee of therein on the 28th conveyance days while death; his that made said before the date of at- sick, physicians and while infirm, of weak and and under the care and while con- up tended to be and about a nurse and while unable depriving of death, purpose impending scious of with a view statutory or marital surviving her estate defrauding of his widow conveyance in described in the personal property interests in the ’’ trust. naught in for held conveyance trust be Court ordered that the The A, in described schedule personal property as to one-half of the per- of said one-half plaintiff recover from said or not decree must whether property. sonal We now determine to that extent should be affirmed. suit, ex- in was (1) that the trust instrument insists respondent not for the providing for the-purpose ecuted for of is defrauding her; instrument valid purpose the trust (2) trustee, accept- in regardless purpose; (3) that of its good ing conveyance, complete in faith. acted In de- are the intent of deceased. We concerned here with executing termining the trust purpose intent and of deceased may in evidence. weigh we and consider all facts and circumstances knowledge his health, The his condition condition of deceased’s death, expressions of his approach his of the near his realization desire, provisions terms of the purpose; intent and the detailed conveyed in agreement, percentage of his wife, his agreement in the trust the form limitations previous will, and content of his the execution of a new will con- conveyance, gift temporaneously with execution $20,000 brother, expressions of the note to his his of satisfaction with death, disposition property, expectation his efforts in it; and his and all other facts and circumstances readiness these determining evidence, for the In consideration of Court. were respond- the deceased intended to defeat and defraud whether rights, presume intent, of her a fraudulent ent marital we cannot legitimate it from all the but be inferred when it is deduction given in a case. facts circumstances evidence [Ulrich 401,W. The in this (Mo.), Pierce 233 S. evidence ease has 402.] unnecessary. length repetition further been reviewed at very respondent compared small as with the income reserved was ownership interest in the total fund. The complete full and of a half only. It for her continuance of income was uncertain. life the intent There is circumstantial and direct evidence of both respondent her purpose deprive lawful marital deceased conveyed. defeating There is evidence apparent It is trust. rights sole wife major portion to place he intended from the trust

1161 limit her to beyond and to respondent’s control an property of his life, It is time reserved per for and no more. income of month $200 joint control right trust; that he reserved over to revoke the right enjoy the entire income property as co-trustee may to look during life. circumstances be his own While these case, yet the deceased forward, all the circumstances this under making disposition property to be practical purposes for all from the evidence apparent think it is after death. We effective power not able to exercise this he would be deceased realized He revocation, control, enjoy this income. joint use the nor live arrangements. days completing after financial died within few these findings hold that the We defer to the of the trial court and deprive and purpose of the of this trust was to intent and execution statutory rights respondent defraud of her marital in lawful conveyance property conveyed in we hold that further testimentary in in of and contemplation character and was made expectation impending death. by 325, public policy

The of this State as evidenced Section (Mo. Ann., 325, p. 212), is that when Revised Statutes 1929 Stat. sec. dies, any being capable

a husband without in child other descendant inheriting, his widow shall entitled to one-half of the real and personal belonging death, estate at the time the husband absolutely, subject payment of the husband’s debts. Section 327, (Mo. Ann., 327, 215), Revised p. pro- Statutes 1929 sec. Stat.

vides an provided election to take the widow interest 333, the above (Mo. section. Section Bevised Statutes .1929 Stat. Ann., 333, p. 221), provides may sec. that the widow renounce

provisions of her husband’s and take under the statute. Be- spondent filed her election and has renounced the will. It is not nec- essary therefore to whether or an required determine election is case, for the in this to take personal one-half of the widow without an election. (Mo. App.), (2d) Nies v. Stone 117 W. S. [See 407, general rule of (long State) law effect this 411.] property by that a the husband without consideration and with the intent and to defeat his widow’s marital property, upon is a- fraud such widow and she sue in her right, and conveyance, own set aside such fraudulent and recover the fraudulently transferred, so to the extent of her interest Waddill, 99, therein. v. 605; 168 Mo. 67 S. W. Davis, Davis v. [Rice ; Bernays’ 5 Mo. 183 In re Estate, 344 Mo. (2d) 209, S. W.

215; Newton, v. Newton 162 Mo. 61 W. 881; S. O’Niel, Straat v. 68; Tucker, 84 Mo. v. 464; Tucker Tucker, Mo. Tucker v. 29 Mo. Stone, 389; Dyer Smith, v. 18 Mo. Stone 62 Mo. App. 606.] Waddill,

In the case of Rice v. 99, 117, Mo. 67 S. W. dealing the court with various of property transfers in fraud of “. . . a dower said: court of conscience will treat these formal- *11 and will her dower cunning

ities as a scheme to defeat mere covers of bring until- her dower require voluntary it into court donees to or- the apportioned of the instrument is to her. . . . The form wholly intent to defeat device is immaterial when the resorted to rights to the apparent marital is Chancellor.” widow’s made Tucker, a deed In v. 29 Mo. where the case of Tucker widow, the Court said: gift as to the of. slaves was held void in form is ... “Though in the case us the instrument before yet accompanied deed, technically will, a its execution was a and not intent, suffi- and are such as evince a fraudulent with circumstances it. invalidate they alleged petition, in the cient, proved if are bring it testamentary as to disposition It has such characteristics of if it all the effectually of the statute as had prohibition within the of the deed are requisites If intent and effect technical of will. the. same, accomplishing it is immaterial. the mere form or mode of they voluntary; that were petition deeds were shows death, the decedent expectation anticipation made in when declining in feeble and health.” executed, Appellant dealing an contends that are with we active, testamentary character, that title inter vivos in in is vested the trustee and that the trust is valid claims grantor’s following Appellant cases: Sims widow. cites the 911, Brown, 624; Rossi, 326 Mo. v. 252 Mo. 158 S. W. Davis v. (2d) 8; Stanley, App. 524, (2d) 34 S. W. v. 230 Mo. 94 S. W. Coon Miller, many from other (2d) West v. 78 Fed. cases jurisdictions. We that the cases do not rule the facts be- hold above fore us. contends that a wife has no in and to her hus- personalty except may possessed by him

band’s such as “at ’’ death; during life, dispose prop- time his he of his can erty by gift may choose, any or otherwise as free from claims wife; paralyze and that to hold otherwise would commerce and dealings notes, trade and stock and chattels of all kinds. We are unwilling repeal by implication the statutes of this State and to say may by that a husband means of a fraudulent evade express terms of the statute equity powerless and that a court of is premises. Appellant says if this is set aside that lungs then men bad hearts or with or white their hair must cease arrange must dispose trade and not undertake to their affairs or goods because, they die, their all men must since know way open every for a wife to follow transaction and it. The void century answer is that for than a rule has been that the more voluntary avoid transfers widow her hus- contemplation band in pur- immediate death with the intent pose statutory to defeat and rights. defraud widow of her marital litigation years Extensive has not equity resulted. Courts of have for set aside fraudulent. conveyances, by, fraud, and transfers obtained any without noticeable paralysis of resulting commerce therefrom.. A. Appellant insists good that it accepting acted faith in con this veyance in trust and that therefore powerless this court is act: .to fraud,of Voluntary conveyances fraudulent are set for the aside ! grantor. It is not necessary that positive there be on active fraud part the-grantee. Sugars Quinn (Mo.), 95 S. [Godchaux (2d)W. 82.] Appellant contends that unsatisfactory motive or intent is an test of the validity aof property; transfer of jurisdic and that-in most *12 tions this rejected. test-has been Appellant by weight insists that the authority of the test applied essentially is a test of -whether hus good band has in- faith ownership divested of of prop himself erty merely illusory has Appellant made 'an transfer. cites: Newman Dore, v. 275 N. 371, 966; Y. 9 N. (2d) E. Benkart v. Trust Co., 257, 269 62, 63; Pa. 112 Atl. Wright Holmes, 508, v. 101 Me.

62 Atl. 507. further insists that the law as declared logical- this foundation; supporting State without and that cases the rule by should be overruled this court. have Appellant would us hold Brown, 482, with Potter Title & Co. v. 294 Pa. Atl.

401, may that the voluntary disposition per husband make a his of sonalty during dower; deprive his life intent to even with wife of “good making and faith” of required donor a valid disposition property during of his lifetime not refer to does purpose totally to himself affect wife but to intent to divest ownership property. of of the by We hold that this court. applied

We adhere to rule as property voluntary of general rule to transfers with reference death, purpose intent and contemplation and with the of immediate defraud, rights, her marital defeat, therefore to the widow of to and by in this instrument applies property to transfer property so one-half of Respondent is to recover case. entitled assignments first three appellant rule on the transferred. We error. say error, assignment of we With reference the fourth motion,for judgment iii arrest of its a new trial and appellant in admitted on behalf any improperly complain not evidence does upon judgment was based anyone, complain it nor does not matter was called to testimony admitted. The improperly court, we it. trial need consider and attention [Greer 1046; Louis, (2d) W. Polski v. St. 19 S. Carpenter, 323 Mo. 197; (Mo. App.), v. Bank 462, Whitehead 458, S.

264 Mo. W. (Mo. Ann., Stat. sec. R. S. 1929 Sec. (2d) W. 56 S. testimony, how- question The admission 1061, p. 1346).] in- pleadings. pleadings The are ever, reference to the arises with case, have reason cross-appeal in this and we in the volved now other petition. heretofore outlined the We must consider plaintiff’s peti- Adolph Merz pleadings. of defendant The answer allegation general things, follows: contained, among tion other ‘‘ alleges . and answering, . asserts Further this defendant .. it was, time now, at the alleged and facts to that said trust deed is be void, nullity, and been, executed, has ever since said time M. Merz Julius effect, that it was executed of no for the reason import, legal actually as to its effect when he was mistaken certain it serve a misapprehension that would when was under a practical fraudulent, its purpose, illegal then and when which was entirely him, when legal effect was then misunderstood fact, his not, matter of legal then as a practical its effect were effect, were, will, legal practical intention, mind or and when its been, in direct have time,' executed, at the ever since said time said purpose for which equity principles, and violation of time, since attempted at and ever be created n impossible fraudulent, illegal, real time, and the has been fully appears in this defend- all of more which accomplishment, prayed that all The then petition, ant’s cross answer as executor.” declared transferred relief prayed for other to the executors and the estate and delivered premises. in the cross-bill, under the Merz as executor answer *13 alleged petition, facts detail deceased, plaintiff’s

will of to filed general allegations pleaded and conclusions tending support to the charged was and further that the above answer to was executed wholly voluntary, consideration and without and that it did not' create a gaining estate; prevent plaintiff from purpose intended was purpose intended; and trust for the alleged continues: accomplishment. The cross-bill impossible of purpose, his and sanguine accomplishing said “That with efforts.of molded, finally, plan, had been up on the his mind which with death, he rapid approach of accelerated which formulated and infirm, contemplat keenly of, sick, feeble and conscious and while was daily, expectation that it come and ing death, with full and distant, the end was not far and anticipation the fullest that Avith enjoy himself, longer his knowing that could not much carrying of into effect his intention and determination with the and object aforesaid, believing scheme, purpose for the and or plan circumventing statutory of and common- have the effect that it would rights surviving widows, their respecting of as to provisions law sole, estate, single, husbands’ with in their object carrying specific purpose of effect into express, aforesaid, purpose, and for no other but not act plan his and scheme legal effect instrument he about ually knowing of the true to was intended, deceased, said on haA'efor execute would death, to 1984, in with day November, a race or about the 28th end, earthly his when plan before consummate scheme necessary stimulants. were he was so and infirm feeble that'artificial occasion, Tower brace him at the office to for the defendant deed, alleged Bank and.Trust he executed trust Grove already simultaneously with the execu to.....That referred alleged last also executed his tion said trust deed deceased testament; . . . of said executed both were with documents at disposing estate, the intention of deceased of be effective effect, is apparent his death.” It said answers were confes allegations petition, al-' sions of the but some additional with legations. a Company, Trust was co-defendant of who the above

answering defendants, pleadings purporting said construed directly against (appellant), apparently action it state cause of convey- prayer requested answers because said be the pleadings ance set aside toto. There is no reference in out, than intention, answering an other as set de- indicate (appellant fendants to their Company) make co-defendant pleadings. Appellant defendant in said did not demur move alleged cross-bills, strike said but plead- answers and did file certain ings, purporting to appellant on behalf of answers Trust Company, alleged cross-bills of said defendants. These answers were .general denials.

During progress trial, Adolph when defendant sought plaintiff’s case, to offer evidence at close of Company objected any to the introduction evidence ground on said defendant that said answers and cross-bills failed to state facts sufficient (ap- to constitute a cause of action it pellant), jurisdiction contended that court was without on subject petitions alleged the cross for the reason that heirs grantors and administrators of fraudulent could maintain an conveyances. action to set such theory ap- aside It on their pellant now contends that the offered on evidence behalf of defendant Adolph Merz, executor, asMerz improperly admitted, evidence, that, wholly without such the decree unsupported *14 by evidence. pleadings, indicated, With the parties herein in a hearing, as as. cause, evidence, of offered one and in the to, order above referred their

to-wit, plaintiff, appellant Merz, then and last appellant Trust Com- court, decree, pany. according The to its findings made its . .

upon pleadings parties of all hereto, of upon and the evidence proof and adduced them in support of their pleadings. various . .” In state . this of the record still contends re- that spondent was not entitled to the benefit of by apr evidence offered Merz, that court pellant considering in erred said evidence rendering judgment. in

1166 valid- as to the

We hold to the issues the evidence offered relevant to the conveyance respondent was entitled ity and that of the trust in material evidence competent, relevant or benefit of all of the full offered the evidence. regard party to what the record without [23 1026, 104 W. Herrmann, S. 56, 340 Mo. 1798; Castorina v. C. J. sec. 719, 297; Storey Company, Bus Mo. (2d) People’s Motor Milling Co., (2d)W. Railroad Co. v. National S. New Orleans 1223, S. 58 L. U. Ed. 1226.] assignment is The overruled. are dis- assignment until other The fifth will be deferred matters Adolph appellants, cross-appeal The of posed cross-appeal. of on the Merz, by reason executor, arises Merz, as J. Adolph Merz and Jean “The Court decree, to-wit: following part the trial of Court’s of defend- joined to the cross-bill further find the issues herein doth Merz, M. of Julius Adolph Merz, one executors of will ant find, defendants, and doth further plaintiff favor of the other in as one the execu- adjudge Merz of decree that defendant authority Merz, capacity, or tors of the M. is without Julius conveyance right validity of the in challenge law hereby date, and is dis- November and that his cross-bill be 28, 1934, as missed; conveyance that in trust of November delivery . . . after of one- one-half described hereby conveyance plaintiff, adjudged half thereof to is to be valid Company, trustee thereof to defendant Grove Bank Tower thérein named.”

In Merz executor of the estate cross-appeal appellant Adolph assigned (1) on deceased, Adolph Merz, and error Jean J. They failure to the trust void in toto. contend the Court’s declare character; testamentary (b) that (a) the instrument was Company; (c) that Trust Com- imposed upon deceased law; guilty (d) that the trust instrument pany is of fraud misapprehension. Appellants’ sec- was executed under mistake assignment is, proposed even if trust is ond that valid part part, expressly invalid in the trial in not hold- that court erred any from ing respondent to no further claim to income entitled having instrument, fund, because, repudiated trust her, having nothing had trust as to she can claim declared void further thereunder.' Company (respondent appeal) as to this appellant Trust legal appellants heirs (1) representatives that these

contends validity grantor question- a fraudulent cannot testamentary was not in char conveyance; (2) any (3) inequitable fails to show fraud or acter; record officers; (4) part on of Trust its conduct law, fact, but mistake of no mistake which there was are the issues the cross-appeal. will not relieve. Such equity

1167 the pleadings We have heretofore reviewed evidence. the Wo court, findings (1) physical ont have set trial as transfer, of the as (2) at the time condition the deceased impending death, (3) pur- as to the consciousness deceased’s conveyance. findings, in pose of We have said concurred reading re-reading since in this have from record case we as to the true in arrived at same conclusion facts this case. We failing must or not the set now whether court erred determine conveyance ordering remaining aside the trust in toto half property over, plaintiff’s part, and above to be delivered to n under the will of deceased. the-executors The in this record cause would indicate that the decree was based alleged insufficiency alleged upon the ca- cross-bill and authority Adolph Merz, pacity executor, as to maintain an independent validity challenge conveyance. of the trust suit Here, however, validity conveyance by of the trust was assailed petition. jurisdiction equity The of a court of was invoked upon parties the facts therein All parties stated. interest were proceeding. appellants to the All of the in this cause co-defend- were actiqn trying ants. The court not one cause of as between re- spondent appellants another between Trust Com- pany appellants. and the other investigating court was the validi- ty sufficiency conveyance. of the trust In proceeding such all parties necessary parties. interest are There no is contention that all were represented. Appellant by not his answers in- was not “ jecting relating a new cause of action. pleadings statutes ‘The inject not do authorize one into plaintiff’s defendant suit an suit, independent at equity, against either law or in co-defendant, necessary germane to his defense plaintiff’s to the suit, and granted the relief that to one defendant another is ” as such is incidental to his defense.’ Telegraph Dist. [Mo. Co., 453, v. W. Telephone Co. S. Bell 336 Mo. 79 S. (2d) 257, W. 260, cases “Furthermore provision 1071, Section cited.] (Mo. Ann., 1929 Revised Statutes Stat. 1071, p. 1372), sec. judgment may determine the parties ultimate on each ’’ themselves, side between does not make co-defendants adversaries. Telegraph Dist. v. W. Telephone Co., Co. S. Bell supra.] This [Mo. by is limited the issues made pleadings. court v. [Munford Sheldon, 1077, (2d) 907, 320 Mo. S. W. And a decree outside 909.] and has the record invalid been held even void when attacked col- laterally. Bailey, 22, 329 Mo. 44 S. (2d)W. 9, 15; 21 [Friedel C. L. R. C. sec. sec. But here petition J. at- 338.] fraudulent, entire tacks the and as testamentary in character, parties brought and all interested are in. This court is specific prayer petition. not bound However in this general prayer relief was asked. The petition of a ease is no part *16 give relief on proper action, equity of and a court of will the cause 275, Moulder, 338 Mo. v. stated and established.

the facts [Rains 53, 63, 79 Dearing, 81, ex rel. 180 Mo. (2d) 85; State v. 90 S. W. W. 272, 279, 71 Crow, Mo. S. v. 171 454; ex rel. St. Louis W. State S. 132; 496, 483, 174 County Bank, App. 187 Mo. Musgrove v. Macon There all of the evidence. W. In trial the court heard S. one 171.] as herein evidence, except objection the introduction of was no to All the for the Court’s consideration. stated. evidence was evidence, we a on the facts trial reached conclusion Court limited conclusions, not but court was have arrived at the same the defendants, otherwise, the record by the under pleadings the case, only set to extent in this to aside the trust the have conveyed in trust. We plaintiff’s interest in the setting so much equity an court is not aside ruled that limited It plaintiff’s as cover interest. of a fraudulent transaction will 216 (Mo.), W. quo. v. Kirsch S. restore stafois [Vordick that Collier, S. W. There is the further rule Weller v. 974.] jurisdiction,- it, prayer retain having acquired once under equity justice, general relief, complete full and to administer within evidence, parties. v. pleadings and between the scope of [Rains McGonigle, (2d) 37 W. Moulder, Jones v. 327 Mo. S. supra; W. Is 892, 895; Phelps Scott, (2d) 71, 325 Mo. S. 75.] position Company appeal) as to this in a appellant (respondent Trust granted urge court, appellant Merz as upon this that no relief be under will of deceased? executor Company good faith; it

Appellant contends it acted that Trust deceased; for; not that its advice was asked that de- did not advise wanted; like he knew what he that at outset it did ceased acted conveyed; thought not the amount assets to be and that it know more than he was. On the other deceased was worth hand action eloquently deceased testified as to his and conduct confidence Company’s competency qualifications to appellant Trust hand- accomplishing him in his business and results desired. dle assist Company Trust to draw an instrument He trusted which trustee, it $300,000 in assets were delivered to over trustee the- proceeds to invest and re-invest trust es- was authorized Company receptive was in a most It tate. mood. proposed officers knew that the its trust would be wanted Appellant’s quoted president to it. witness own beneficial saying very deceased awas rich man and “that ought get.” a trust Appellant’s agent we there was will trained; they law was not knew that deceased learned amount They estate before the proposed trust instrument drawn. was purposes trust was to limit knew that one the wife They safety more. that per deposit month and no knew to $200 substantially emptied and their contents included in the boxes were fund; make total and that the intention of the deceased was to go by distribution the trust property; of his that did not what go by no They was and had will. knew deceased was married children, that under such widow well knew circumstances subject would be entitled estate to debts. Its to one-half of the officers to it that proposed knew to execute a trust would it; yet apparent primary purposes accomplish beneficial to say imposed intended deceased. the circumstances Can we obligation no duties or deceased or advise refuse when they knew, or.ought known, the real of the trust to have being upon Apparently certain to fail. the benefits conferred grantee grantee caused the to remain silent. There was evidence agreement represented “bullet-proof.” as “iron-clad” *17 equity suggestions the is a o'f to hear the of Under circumstances court appellant Company the Trust that this court should not avoid the trust in toto appellants Adolph Merz, because executor, legal grantor. representative is an heir and of a fraudulent prevent We decline to hold that circumstances this court from the granting full relief. may properly

This court vacate and set aside this trust toto, though legal even the results be beneficial to the heirs and representatives grantor. of a fraudulent Kirsch, v. supra.] [Vordick Again, greater wrong permit where it would be a to the to transferee recovery by permit hold than to the of heirs the de- they may ceased, recover, notwithstanding purpose the deceased’s executing the trust appellant was fraudulent. The deceased and footing. equal Trust did not stand on an is Company There no purpose that the deceased that the sole knew evidence fail, appellant Company, knew, would but or under the facts Trust here, ought it, to have permitted known but nevertheless transfer present nothing to made. The pre- circumstances of this case to granting legal representa- vent us from full relief to the heirs and Pokres, tives of deceased. v. 324 Mo. (2d) 23 S. W. [Snitzer 155, 161; Lindsley Caldwell, 234 983; v. Mo. 137 W. S.

Holliway Holliway, 392; Balch, 69 Poston v. v. 77 Mo. Mo. Hobbs Boatright, 93 W. In. Mo. S. the above' case 934.] Lindsley v. plaintiff had transferred shares of Caldwell stock to attorney, part defendant,' an as a of a fraudulent scheme and defend- Plaintiff sued in equity retained the .stock. have' defendant ant plaintiff. page At opinion, trustee'of the stock for of the declared defendant, recognizing “The doubt the court said: weakness no. áttempt security so far ás his to hold this stock as position of his for eoncérned, upon ground the further defends his fees is trans- by to him Stevenson was made for the this stock purpose fer of Stevenson; delaying the creditors and he hindering of. invokes tbé conveyances ptirpose, made for sueh an attempt that where rule ' tbe regain equity, because by grantor property, tbe tbe Made par- conveyance, leave prompted which corrupt' however, that this opinion, it finds them. We are ties where The rule which not to the defendant. unhappy defense is available n . . .” this, like does not a case he invokes apply the above Company contends reply In brief Trust its in this the evidence case applied to rule of law cannot be theory. Let us see. tried on the above that the cause was not reason Trust charged appellant transfer to Com a fraudulent The petition respondent of her marital plan to defraud pany under a and scheme to the rights; signatures parties had been attached appellant accepted the agreement; trust' and that had burden executing the trust. transfer Proof of fraudulent execution by by appellant directly acceptance thereof decedent involved drafting agreement. Company participation in Trust and its at the trial that evidence as to relation There was no contention ship parties, participation Company alleged agreement, representations, of the trust and its execution legality effectiveness, issues to its within the pleadings. Appellant support issues in vice-president and trust officer and its behalf called as a witness its as to the execution of the trust instrument its offered evidence ap said officer. The facts are all the record and this court must ply applicable pleadings appear rules of to the and evidence law. ing ,in the record. reached, unnecessary pass

In of the conclusions it is upon view *18 urged by appellants the other reasons in the cross-appeal for vacat- ing conveyance entirety. in its unnecessary It is also to con- assignment sider the second of error on cross-appeal. assignment There remains fifth appellant of error Company. Trust

The respondent required decree entered in favor appellant Trust Company turn plaintiff (respondent) to over to one-half of the assets of the trustee, together trust estate as to the income, delivered with interest, profits thereon; subject only payment to the of one-half of the estate taxes and paid. income taxes No mention was as compensation trustee, any for the attorney or as to expenses fees or incurred on behalf of Appellant the trust estate. Company Trust complained thereof in trial, its motion for assigned a new and now has error thereon. ,We do not find this matter to have pleadings been covered or evidence in the court pleadings below. All on behalf of Company general Trust were denials. No expenses evidence as to or compensation claims for was offered at the trial. Trust Company entering as trustee after decree, of the filed motion to modify the recovery by decree so as to allow respondent subject to compensation expenses motion to the trustee and incurred. mo- Company also filed a Defendant Trust as executor

overruled. delivery to it modify requesting payment tion of tbe This expenses. costs motion of claims estate and In view Only Company appealed. trustee as overruled. refus- did not err in case, in this hold the court record we attorneys’ from ing fees, fees, expenses other trustee’s deduct said fund. appeal to the

The decree is as issues involved affirmed 35,769 as to No. 35,770 and reversed remanded cause cause No. .and and direct to declare the trust void toto with directions delivery remaining property, one-half after the of one-half to be to the executors under the will of respondent, delivered any Merz, deceased, direct that in future settlement' Julius M. Tower Bank & respondent between and the Grove Merz, Merz, under of Julius M. executors the will by. charged amount deceased, she shall with the total recovered determining shall 35,770, No. have received her in cause she when deceased, personal subject real estate of said one-half of the opinion. proceedings further inconsistent with this debts; and for Bradley, GG., Hyde and concur. foregoing opinion by Dalton, C., adopted

PER CURIAM:—The concur, Says, judges except All the opinion court. J.,P. absent. Abernathy

Hugh Company. Appellant, Branson, Furniture (2d)W. 562. 130 S. July One,

Division 1939.