Opinion
No. 43274.
June 8, 1953.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, JAMES F. NANGLE, J.
Rene J. Lusser, St. Louis, for appellant.
Tyree C. Derrick and Karl E. Holderle, Jr., St. Louis, for respondents.
Harold B. Kline, for himself as guardian ad litem for minor respondents.
Plaintiff-appellant, Dr. Floyd W. Bennett, filed this suit in equity to determine whether a cash amount of $800 and certain securities purchased by him and issued in the name of plaintiff and Gertrude I. Bennett, Trustees for Jeanne Renee Bennett and Jacqueline K. Bennett, minors, were in fact subject to a trust in favor of the minors. The trial court entered a judgment pursuant to an alleged agreement in open court between the parties wherein the court by its decree created an irrevocable trust and named the Mississippi Valley Trust Company as trustee. The minors represented by a guardian ad litem filed an answer wherein they claimed that other and additional securities not mentioned in plaintiff's petition should be added to the trust. The trial court in its original judgment did not dispose of this counterclaim. Plaintiff's appeal from that judgment was dismissed by this court on the ground that all issues had not been disposed of by the trial court. The case was remanded for further action. See Bennett v. Wood, Mo. Sup., 239 S.W.2d 325. When the case was again before the trial court, the guardian ad litem introduced evidence in an effort to support the claim of the minors that additional securities should be added to the trust. The trial court, after hearing the evidence, dismissed the counterclaim. Plaintiff at this second hearing offered to introduce evidence tending to prove that the property which the court had decreed to be subject to a trust was not in fact intended to be subject to a trust unless Gertrude Bennett complied with certain conditions made by plaintiff at the time the securities were purchased and the cash deposited with a savings and loan association. Plaintiff further offered to introduce evidence tending to prove that he had not made any agreement authorizing the court to enter a decree creating a trust. The trial court refused plaintiff's offer of proof and entered a decree establishing an irrevocable trust in favor of the minors and dismissed the counterclaim of the minors. Plaintiff filed a motion for new trial which was overruled. The guardian ad litem did not file a motion for new trial nor did he take an appeal. Plaintiff appealed from the judgment.
For a detailed statement of the controversy and the interests of the various parties reference is made to the opinion on the first appeal. For the purpose of this opinion, it will suffice to state in so far as the interests of the various parties are concerned that plaintiff's son, Dr. Floyd W. Bennett, Jr., was married to defendant, Gertrude I. Bennett Wood. To this union two children were born who are the minor defendants here. The son, Dr. Floyd W. Bennett, Jr., died on December 26, 1943. The defendants, Gertrude I. Bennett and her two children, lived in the home of plaintiff. The securities which were placed in trust by the court's decree were issued and the cash deposits were made between the dates of June 13, 1945, and February 15, 1947. Gertrude married John S. Wood on July 5, 1947. On October 31, 1947, John S. Wood adopted the minor children.
Plaintiff has briefed a number of points wherein it is contended that to authorize a court to establish a trust the evidence must be clear and convincing.
The trial court's judgment was based upon evidence and an oral agreement alleged to have been made in open court after plaintiff had testified and introduced evidence in support of his petition. Plaintiff says in his brief that the trial court erred in finding that plaintiff agreed a trust instrument be drawn and that he agreed to the terms of the trust as contained in the court's decree; also, that the trial court erred in holding that plaintiff had closed his case when the original trial was had. After a consideration of the evidence introduced by plaintiff, the allegations of plaintiff's petition, the prayer thereof, and what was said by plaintiff's attorney in open court, we are satisfied that the trial court was justified in holding that plaintiff did agree to permit the court to establish a trust as reflected by the decree.
Plaintiff by his suit invoked the jurisdiction of the court to decide in what capacity he and Gertrude held the securities and cash in question. The securities were issued in the name of "Dr. Floyd W. Bennett and Gertrude I. Bennett, Trustees for Jeanne Renee Bennett and Jacqueline K. Bennett, either or the survivor." When the case was tried, Mr. Fred Armstrong was plaintiff's attorney. During the cross-examination of plaintiff, the following occurred:
"Mr. Derrick: Q. Didn't you tell Mr. Armstrong you wanted the property vested in you as sole trustee? A. Yes, sir.
"Q. You did? A. Yes, sir.
"Q. And do you recall now whether or not you told him you wanted to be the only trustee? A. Yes, sir.
"Q. You told him you wanted to be the only trustee? A. Yes, sir.
"Q. Then that would necessitate the removal of Gertrude as a trustee, wouldn't it? A. Yes, sir."
The substance of what was said by the attorneys in open court with reference to an agreement for the court by its decree to create a trust and the terms thereof may be found in the opinion on the first appeal. See 239 S.W.2d loc. cit. 327. There is no need to restate it here. The decree of the court conformed to the terms of the agreement. Plaintiff is bound thereby. Fair Mercantile Co. v. Union-May-Stern Co., 359 Mo. 385, 221 S.W.2d 751, loc. cit. 754, 755(8-10). The court did not err in refusing to reopen the case to permit plaintiff to reject his agreement.
The guardian ad litem filed a brief on behalf of the minors. He asks this court to modify the decree so as to include in the trust property certain securities mentioned in the counterclaim. As noted above, the guardian ad litem did not file a motion for new trial nor did he appeal. Out of deference to the minor children, we have examined the evidence in support of the counterclaim and find that it fails to support the claim made therein. The trial court rightly dismissed the counterclaim. The guardian ad litem also asked this court to allow him a reasonable fee for his services since November, 1949. Having discovered that he failed to preserve that question for our review, we are not authorized to grant his request.
Respondents filed a motion in this court to dismiss plaintiff's appeal stating as grounds therefor that the brief was not served on respondents in the time required by the rules of this court. We have decided the case on the merits and so the motion to dismiss is overruled without further comment.
The judgment is affirmed.
BOHLING and BARRETT, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court.
All concur.