Harding v. St. Louis Union Trust Co.

BOND, C. J. 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 — 141 — claims are based to be that on December 10, 1897, Roger E. Harding, living in St. Lonis and about to make a trip to California to aid Ms daughter who had married uphappily and was in dire distress, wrote to his son in New York, informing him of these facts and that he would begin the journey on December eighteenth, adding: “If anything occurs to me, you will find sixteen instead of fourteen R. R. bonds in that package I told you about in the safe deposit box; the two additional are Suburban; in all four Suburban, Nos. 96, 176, 179, 181 — instead of two.” 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 — 142 — came to St. Louis with her father and he took her to the safe deposit box and opened it in her presence and took out the sealed envelopes containing the sixteen bonds and put them back loosely in the deposit box, tore up the envolope endorsed as above, and threw it in the waste basket, making certain explanations to his daughter why he did so, which we exclude as incompetent. 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. Trust III. That an executed trust may be validly created in personal property by express declaration and Present conveyance of such property to a definite beneficiary, and that when the trust has been thus completed, it is irrevocable, though voluntary, is the settled law of Missouri and elsewhere. [Northrip v. Burge, 255 Mo. l. c. 654, par. 2 et eases cited, Ibid 674, par. 5; Bank v. McKenna, 168 Mo. App. l. c. 257; In re Estate of Soulard, 141 Mo. l. c. 660.] 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. — 143 — Burge, 255 Mo. l. c. 655, et eases cited; Ibid, l. c. 668.] It is obvious that the plaintiff’s entire case rests upon the terms of three documents: two letters and the copy on an endorsment on the package under five seals. If these stood alone, aside from the negative and explanatory evidence for the defendant, no trust could be decreed, because they show by express terms that it was the purpose of Roger E. Harding to create a trust not in praesenti, but only upon the condition that some mishap, like death, might overtake him on a journey about to be undertaken to California to assist a married daughter. That nothing further was intended by the language of the writing of Roger E. Harding when read in pari materia, is not only apparent from the contingent terms of the declaration contained in them, but from the further fact that immediately after his daughter had secured a release from her unfortunate state, he brought her to St. Louis and in her presence destroyed the superscription which had been placed upon turn package of bonds to provide for their future delivery to plaintiff upon the happening of the contingency mentioned in his executory agreement. This contingency not occurring, Roger E. Harding opened the package, took the sixteen bonds and placed them loosely in his safe deposit box and destroyed the envelope, with its superscription, which had contained them. This manifestation of the construction given by Roger E. Harding to the terms of his letters of December seventh and seventeenth, is convincing, as, indeed, the language itself fairly imports that his agreement as to this personal property was purely temporary and intended only to take effect in case any future mishap, like death, should overtake him before he should return to St. Louis. No more enlightening view of the language used by Roger E. Harding in his letters to plaintiff could be afforded than his own actions in dealing with the property therein referred to. He construed his letters and declarations as their language justified; for by the terms of these writings and in the light of circumstances sur — 144 — rounding the parties, they only evidenced an executory agreement to create a future trust, for a wholly undisclosed purpose, which trust agreement should fail upon the non-happening of the contingency upon which its completion depended. It being obvious, therefore, that the evidence relied on by plaintiff did not afford any proof whatever of an executed and completed trust but only tended to show an executory agreement for a trust of some kind, to arise upon a future contingency, the conclusion is unavoidable that plaintiff was entitled to no recovery in the present case. 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 — 145 — the brief prepared for plaintiff (appellant) where it is stated that, failing the sufficiency of evidence to show “a declaration of trust in which the deceased Roger E. Harding was the trustee and donor” this suit must fail. [State ex rel. v. Evans, 176 Mo. l. c. 317, 318; Shelton v. Harrison, 182 Mo. App. l. c. 412-3; 10 R. C. L. p. 349, sec. 99; 1 Pomeroy, Equity (3 Ed.), sec. 151; 2 Story, Equity Jurisprudence (14 Ed.), secs. 1300 to 1303; Bispham’s Principles of Equity (9 Ed.), sec. 49.] 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. Walker, Faris and Williams, JJ., concur; Woodson, J., not sitting.