source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    Melvin MERRITT, Appellant, v. J. J. MANTONY, doing business as A. A. A. Asphalt Company, Respondent.
    No. 48585.
    Supreme Court of Missouri, Division No. 2.
    Jan. 8, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied Feb. 12, 1962.
    Alfred B. Couch, Terrance W. Imes, Kansas City, for plaintiff-appellant.
    John R. Baty, Fred J. Freel, Kansas City, Pew, Taylor, Sheridan & Baty, Kansas City, of counsel, for defendant-respondent.
   STOCKARD, Commissioner.

In this rear end collision case, wherein plaintiff sought damages in the amount of $35,000, the jury returned a verdict for defendant and plaintiff has appealed from the ensuing judgment.

Plaintiff was a passenger in a Cadillac automobile which was being driven north on Troost Avenue in Kansas City, Missouri. A short distance north of 59th Street the operator of the Cadillac stopped because of traffic conditions, and while stopped his automobile was struck in the rear by a Ford station wagon being operated by the defendant. It may be assumed that the collision resulted from defendant’s negligence. Defendant practically admits this in his testimony. Certainly the jury could so find. At the trial defendant contended that plaintiff was not injured as the result of the collision. Although the burden was on plaintiff to prove he was injured, and not on the defendant to establish that he was not, it may be said that defendant presented evidence which, if believed, would authorize a finding by the jury that plaintiff was not injured, and this issue was directly submitted to the jury by defendant’s converse instruction about which there is no complaint on this appeal. On the other hand, plaintiff’s evidence, if believed, would authorize a finding of substantial injuries, and this issue was submitted in plaintiff’s verdict directing instruction.

Plaintiff was a member of the Kansas City police force but was not on duty at the time of the collision. Immediately after the collision he reported for his regular tour of duty, but later entered the hospital for a short time and was absent from work for seven months. At the time of the collision plaintiff had accumulated 338 days of sick leave at the rate of two and one half days per month. The trial court permitted the defendant to show that during that time which plaintiff did not work following the collision he was paid by the Kansas City police department an amount equal to his regular salary which was charged against his accumulated sick leave. However, at the close of the evidence, and at the request of the plaintiff, the trial court gave instruction 6 in which the jury was told “that all evidence as to any sums of money received by the plaintiff from the Police Department as sick benefits or pay * * * are withdrawn from your deliberations, and if your verdict is for the plaintiff, said sums paid are not to be considered in any way in diminution of the amount of damages to which plaintiff is entitled, if any, as may be determined by you under instruction No. 5,” the measure of damages instruction.

On this appeal from the judgment entered on the unanimous jury verdict for defendant, plaintiff contends that prejudicial error resulted when the trial court permitted the defendant to present in evidence “the amount of sick benefits received by plaintiff from the Kansas City Police Department,” and in permitting the defendant to argue that plaintiff had not lost a cent because his medical expense had been paid and he had been paid his wages as sick leave. For the purposes of this opinion we shall assume that the admission into evidence that plaintiff was paid sick leave benefits equal to his wages was error, and that the giving of instruction 6 at plaintiff’s request did not completely cure that error. We shall also assume that the argument complained of was erroneous, hut we should add that when that argument is considered in context we doubt that it was improper under the particular attending circumstances even though the evidence of sick leave pay had been properly stricken.

From the above it is evident that plaintiff’s only complaint on this appeal relates to the admission of evidence and of argument of counsel as to the amount of damages plaintiff should receive if the jury found for plaintiff. The jury, however, did not find for plaintiff. It returned a verdict for defendant. The evidence and the argument objected to had nothing whatever to do with the issue of liability, that is, how the collision happened or whether plaintiff sustained any injuries. This case, therefore, falls precisely within the well-established rule that “where evidence or argument is before the jury clearly bearing only upon the issue of the extent of plaintiff’s damages, and the jury’s verdict demonstrates that the jury has failed to reach that issue, plaintiff is not prejudiced thereby.” Boedeker v. Wright, Mo.Sup., 312 S.W.2d 829, 833; Harrington v. National Outdoor Advertising Co., 355 Mo. 524, 196 S.W.2d 786; Bowers v. Etherton, Mo.Sup., 216 S.W.2d 83; Conser v. Atchison, T. & S. F. Ry. Co., Mo.Sup., 266 S.W.2d 587, certiorari denied 348 U.S. 828, 75 S.Ct. 45, 99 L.Ed. 653; Miller v. Riss & Co., Mo.Sup., 259 S.W.2d 366.

Nothing in this record indicates that the evidence or the argument relating only to the extent of damages was so arousing or prejudicial that plaintiff did not have a fair trial. Particularly is this true in view of the giving of the withdrawal instruction. Plaintiff’s counsel availed himself of that instruction. He read it to the jury, commented on it, and closed his argument on this particular matter with the statement that “if he [plaintiff] is entitled to anything at all here, he is entitled to his pay and those things [items of medical expense] that I have mentioned.” We do not see how the jury possibly could have been misled on the issue of liability. To hold that the evidence or argument now complained of could have had any bearing on that issue would require a presumption on our part that the jury failed to follow the instructions of the court about which there is no complaint on this appeal, a presumption not justified under the record and which we are not willing to make.

Plaintiff cites five cases to the effect that error is presumed to be harmful unless clearly shown to be otherwise. None of these cases pertain to the situation in this case where the alleged error pertained solely to the issue of the amount of the damages to be awarded to the plaintiff in the event the jury found the defendant to be liable but where the jury returned a verdict of no liability. Therefore, we shall not set them out and discuss them separately.

We see no reason in the circumstances of this case to depart from the -well-established rule previously set out. The judgment is affirmed.

BOHLING and BARRETT, CG, concur.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    ST. LOUIS UNION TRUST COMPANY a Corporation, As Executor of the Last Will and Testament of Oreon E. Scott, Deceased; As trustee of a certain Insurance Trust; and As Co-Trustee of a certain Irrevocable Indenture of Trust and Wm. H. Armstrong, as Co-Trustee of said Irrevocable Indenture of Trust, Plaintiffs-Respondents, v. Margaret L. BLUE et al., Defendants-Respondents, Henry G. Harmon et al., Trustees of the Oreon E. Scott Foundation, Defendants-Appellants.
    No. 48790.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied Feb. 12, 1962.

      Chas. Claflin Allen, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for appellants.
    Christian B. Peper, Grand, Peper & Martin, Frank E. Morris, Jacob M. Lashly and Elihu M. Hyndman, Lashly, Lashly & Miller, St. Louis, Herbert B. Lowe, Denz, Lowe & Limerick, Decatur, Ill., Jesse E. Martin, for respondents.
   HOUSER, Commissioner.

This is an action brought by St. Louis Union Trust Company as Executor of the Last Will and Testament of Oreon E. Scott, Deceased, as Trustee of an Insurance Trust created by Oreon E. Scott on September 19, 1932, and as Co-Trustee of an Irrevocable Indenture of Trust created by Oreon E. Scott on May 31, 1950 (hereinafter “the family trust”), and by William H. Armstrong as Co-Trustee of the last-named trust, under the Declaratory Judgments Act, section 527.010 et seq., RSMo 1949, V.A. M.S., and particularly sections 527.020 and 527.040 thereof, to construe Scott’s will and trusts, declare the rights, status and i^gal relations of the parties, and for instructions as to certain of the duties of St. Louis Union Trust Company as executor. Defendants are the legatees named in Scott’s will and the several beneficiaries named in his trust, including all surviving members of his family and their descendants, the trustees of the Oreon E. Scott Foundation and of Drake University, certain churches, and numerous other persons. The petition was in two counts. We consider Count I only, since no issues relating to Count II are involved on this appeal. The Circuit Court of the City of St. Louis construed the will and trusts and determined the issues favorably to Scott’s family and descendants, in accordance with the contentions of the executor-trustee and co-trustee. The trustees of the Oreon E. Scott Foundation (hereinafter “the Foundation”) have appealed.

The petition alleged that Scott created a revocable insurance trust in 1932, a family trust in 1950, and executed a will in 1954; that Scott’s will provided for the transfer of assets to the family trust out of his residuary estate sufficient in amount to bring the value of the family trust estate up to $800,000; that the trustee is now holding the sum of $222,000 which it collected on the policies held in the insurance trust on the life of Scott; that on November 12, 1954 Scott amended the insurance trust by making provision for the payment of the proceeds of the insurance to the trustees of the family trust but that this amendment did not provide one way or the other whether the proceeds of the life insurance should become a part of the family trust estate; that at Scott’s death there was on hand in the family trust $262,500 of assets, not counting the proceeds of the life insurance policies; that plaintiffs were in doubt whether the proceeds of the life insurance policies should become part of the original family trust and be included in determining how much to pay into the family trust to raise it to $800,000, or whether the insurance proceeds should be held and administered as a separate trust and not be counted toward the $800,000. The trustees of the Foundation answered, claiming that the amendment to the insurance trust, and the terms of Scott’s will, make the proceeds of the life insurance policies a part of the original family trust and that the insurance proceeds should be counted in determining what amount should he taken from the residuary estate to bring up the value of the family trust to $800,000; and alleged that after making the amendment Scott did not change his will; that it was Scott’s intent that the execution of the amendment not change the provisions of the will for the distribution of the residue. Two churches and the trustees of Drake University took the same position. Scott’s family answered, alleging that the insurance proceeds should be kept as a separate trust and not counted towards the $800,000; that under his will Scott did not intend to count these insurance proceeds even though they went into the original family trust.

THE INSURANCE TRUST

On September 19, 1932 Scott created an insurance trust imposing upon St. Louis Union Trust Company, as trustee, the duty of collecting the proceeds of Scott’s life insurance policies upon his death, dividing the proceeds into three equal shares, one for each of Scott’s three daughters who were thereupon to become co-trustees, and paying the net income of each share to the three daughters for their lives, giving the daughters powers of testamentary appointment and providing for the payment of the income to the descendants of the daughters on failure to exercise the powers of appointment; giving the trustee power to encroach upon the principal; reserving to Scott all dividends, surrender values and benefits during his life; the right to sell, assign or pledge the policies, and the power to amend or revoke the insurance trust. When created the trust consisted of insurance policies with $158,000 in death benefits. Additions were later made to the extent of another $60,000. The actual amount of insurance collected at the death of Scott, plus interest on delayed payments, amounted to approximately $222,000. Between 1932 and 1950 Scott amended the insurance trust four times, changing the manner of distribution of the proceeds of certain insurance policies in the trust in favor of certain members of his family on account of cash loans made by them to Scott in the course of his business operations.

THE ORIGINAL FAMILY TRUST

On May 31, 1950 Scott executed an irrevocable trust for his family, naming St. Louis Union Trust Company and William H. Armstrong as trustees, reciting that he desired to create an irrevocable trust for the benefit of certain relatives named in the indenture, and that he had transferred and set over to the trustees a certain note and mortgage; that “said note and mortgage, and the securities and property into which the same may hereafter be converted together with any other securities or other property which may hereafter he transferred or conveyed to or deposited with the said Trustees by the Grantor, shall constitute the Trust Estate herein referred to.” The trustees were to hold the property in trust for the benefit of Scott’s two surviving daughters (the third daughter having died in 1946, leaving one son), his four sisters, his grandson by his deceased daughter, and a niece and a nephew, the son and daughter of his deceased brother Raymond. Provision was made for the pro rata payment of the income from this trust to the beneficiaries in certain specified proportions. Should any beneficiary die leaving children the share of income to which the deceased would have been entitled was to be paid to his children for life. Upon the death of a named beneficiary leaving no children or in the event of the death of the last survivor of a named beneficiary who died leaving children, his or her share of income was to be paid to the Foundation if in existence, otherwise in equal shares to certain favored charities of Scott’s (Union Avenue Christian Church of St. Louis, Missouri; the trustees of Drake University; a church pension fund; a board of church extension). Upon the death of the last survivor the trust was to terminate and the entire balance he distributed free from trust to the Foundation, hut if the Foundation should not then be in existence the entire balance should be continued to be held in trust by the same trustees with the same powers and duties for the benefit of the above-named charities. Upon the creation of the family trust Scott transferred $152,000 in assets to the trustees.

THE FOUNDATION

On December 21, 1950 Scott created the Oreon E. Scott Foundation, a religious, charitable, scientific, benevolent, literary and educational trust. The trust indenture named as trustees the president of Drake University, the president of the Pension Fund of the Disciples of Christ, the treasurer of The National Benevolent Association of the Christian Church and The Boatmen’s National Bank of St. Louis. Reciting that he had a high regard for the functions performed in society by foundations created for the above purposes and by means of the trust desired in his name to contribute to and encourage these purposes, he transferred and set over to the trustees certain property, and recited that the property into which it might thereafter he converted, “together with any other stocks, bonds, securities, cash, or other property, real or personal, which may be transferred or conveyed to or deposited with the Trustees by Grantor, or by any other person, firm, corporation or partnership under the terms hereof, shall constitute the Trust herein referred to.” The trustees were authorized in their discretion to make gifts of the income to organizations created for religious, charitable, benevolent, scientific, literary, or educational purposes, under the expressed wish of the grantor that the trustees give preference to certain named universities and colleges, churches, pension funds, etc., stressing the establishing and maintenance in these institutions of Oreon E. Scott awards, loan funds, prizes and scholarships. Scott originally put securities worth $250,-000 into this trust. Later he increased its assets to $300,000.

On October 29, 1951 Scott put an additional $50,000 in securities into the original family trust and on March 25, 1953 added $60,000 worth of assets thereto.

SCOTT’S WILL

On March 11, 1954 Scott made his will. After providing for the payment of his debts and taxes, and bequeathing his household furnishings and other articles of personal property to certain named individuals, he made five $10,000, three $2,500, and one $500 specific bequests to relatives, and then gave, devised and bequeathed the residue and remainder of his estate in two parts. The “First” part placed $100,000 in trust for his nephew, grandson and grandniece. Then this follows :

“SECOND

“After providing out of my residuary estate for the Trust set forth under ‘First,’ I give, devise and bequeath to the Trustees of a certain IRREVOCABLE INDENTURE OF TRUST made by me as Grantor on the 31st day of May, 1950 (the family trust), such properties out of my residuary estate as may be necessary to bring the fair market value of that Trust Estate up to the sum of Eight Hundred Thousand Dollars ($800,000.00). In determining the properties necessary for this purpose, I direct that the properties held under the IRREVOCABLE INDENTURE OF TRUST be appraised at their then fair value and the properties hereby devised and bequeathed to said IRREVOCABLE TRUST to attain a value of Eight Hundred Thousand Dollars ($800,000.00) be determined by the values assigned to such properties for Federal Estate Tax purposes.

“The property so devised and bequeathed to the Trustees of said IRREVOCABLE INDENTURE OF TRUST made as of the 31st day of May, 1950, shall be held by them in Trust under the terms and conditions and for the uses and purposes and with the powers and duties therein set forth.”

The third provision of the residuary article bequeathed the rest and remainder of the residue to the Foundation. St. Louis Union Trust Company was named executor of the will.

On October 6, 1954 Scott made a fifth amendment to the insurance trust.

THE SIXTH AMENDMENT

On November 12, 1954 Scott made a sixth amendment to the insurance trust. The sixth amendment was the same as the fifth amendment except that the sixth omitted the provision in the fifth that the payment of the insurance to the trustees under the family trust be reduced by the estate and inheritance taxes. Specifically, the sixth amendment struck out the first paragraph of the original trust indenture (which had provided for the collection of the proceeds of the policies, division into three equal shares, etc.) and substituted in lieu thereof a new paragraph “FIRST” by which the proceeds of the insurance policies were to be paid “to the St. Louis Union Trust Company, a corporation, of St. Louis, Missouri, and William H. Armstrong of the City of St. Louis, Missouri, as Trustees under the terms of a certain irrevocable trust. This said irrevocable trust herein referred to is the trust entered into upon the 31st day of May, 1950, by and between Oreon E. Scott of the City of St. Louis, State of Missouri, grantor, party of the first part, and the aforesaid St. Louis Union Trust Company, a corporation of St. Louis, Missouri, and William H. Armstrong, as parties of the second part and Trustees.” The second change wrought by the sixth amendment was to strike out the second paragraph of the original insurance trust (which had provided for the payment of the net income from the insurance trust to the daughters) and substitute in lieu thereof a new paragraph “SECOND” providing that after paying the proceeds of the insurance to the trustees of the original family trust and obtaining a proper release for such payment, the trustee of the insurance trust “shall be discharged in full of its said duties hereunder and shall be forever released from any obligation herein contained and from any claim or claims against it by any parties whatsoever.” The third change was to strike out the third paragraph of the original insurance trust which had provided for encroachment upon the principal of the shares of the daughters if necessary for their support or maintenance or to take care of emergencies, and substitute in lieu thereof a new paragraph “THIRD” providing that the trustee receive no compensation for services rendered in connection with the insurance trust but only reimbursement for the expense of litigation or negotiation attendant upon collecting the proceeds of the insurance policies. Other changes: Paragraph FOURTH, which had provided against anticipation by any beneficiary was stricken out, as was paragraph NINTH, which had provided that in the event any of the daughters should fail to act as co-trustee of her share the other daughters might so act, and paragraph TENTH, which had provided that the trustees should receive for their services 5% of the income and 5% of the principal when distributed free of trust, and that the trust company should receive one half the fee,

THE EDUCATIONAL AND CHARITABLE TRUST

On November 30, 1955 Scott created the Oreon E. Scott Educational and Charitable Trust, a second religious, charitable, scientific, benevolent, literary and educational trust. The trust indenture named as trustees the same individuals named as trustees of the Foundation, joining with them as corporate trustee St. Louis Union Trust Company. Reciting the same motives and purposes which animated him in the creation of the Foundation, Scott transferred and set over to the trustees assets of the value of $474,500 and gave them power and made it their duty to accept, receive and hold gifts, legacies, bequests, devises, funds, benefits of trusts and properties of any sort or nature as might come into their hands as trustees. The individual trustees were to make gifts of the income to organizations having the foregoing purposes. The trustees were to give preference to certain named colleges and universities and encourage and aid worthy students and faculty members of schools and colleges of the character described, and encourage and recognize outstanding contributions to health, welfare and advancements in learning, by establishing “Oreon E. Scott Awards or prizes.” Scott transmitted certain corporate stock to this trust subject to the condition that there be paid out of income, and principal if necessary, the following charges : $1,125 per month to St. Louis Union Trust Company as co-trustee of a new family trust to be created the next day, to continue for 25 years or until the termination of the new family trust, and two $200 per month charges to named persons, for 20 years or until their death.

THE SECOND FAMILY TRUST

On December 1, 1955 Scott created a second irrevocable family trust. The trust indenture named St. Louis Union Trust Company and William H. Armstrong as trustees. It was practically identical with the original family trust, including the percentage participation of Scott’s various relatives. The only substantial difference was that the children of Scott’s sister Ola (who had died in the interim between the two trusts) were named to receive Ola’s share of the income, and it was provided that as the named beneficiaries should die the income, and on final termination the capital, should go to the new educational and charitable trust created the day before, instead of going to the Foundation.

Scott died January 9, 1956. At his death the fair market value of the original family trust was approximately $262,500 (not counting the proceeds of the insurance trust). The proceeds of the policies of life insurance, with interest, amounted to approximately $222,000, and it appeared there would be enough funds in the hands of the executor to pay all liabilities of the estate and make any required payments into the family trust. After making these payments, the officers of the corporate executor hoped to be able to pay several hundred thousand dollars to the Foundation, the ultimate residual legatee.

The circuit court made findings of fact, including Finding of Fact No. 12 that it was the intent of Scott to create a separate trust from the proceeds of the insurance policies; decreed that the sixth amendment “does create a separate Trust to be handled and administered by St. Louis Union Trust Company and Wm. H. Armstrong, as Trustees, for the same beneficiaries and with the same powers, duties and under the same terms and conditions as those of the Irrevocable Trust Agreement executed by Oreon E. Scott on May 31, 1950, just as if such powers, duties, terms and conditions had been written into said Sixth Amendment to the Insurance Trust Agreement of September 19, 1932,” and ordered the executor of Scott’s estate to distribute to the trustees of the original family trust assets necessary to bring up the market value of that trust estate to the sum of $800,000, exclusive of, and without taking into account, any proceeds of the insurance policies.

Appellants, the trustees of the Foundation, contend that the decree is erroneous because contrary to the express provisions of the original family trust that any assets subsequently transferred or conveyed to the trustees shall constitute the trust estate; contrary to the sixth amendment, which terminates the insurance trust, and contrary to the will, which limits to $800,000 the amount up to which the original family trust estate is to be brought. Appellants take the position that Scott did not intend that the amount of $800,000 be increased; that Scott intended that the property in the original family trust and the proceeds of the insurance policies be treated together as a unit, in a single trust; that the original family trust had independent significance; that the original family trust instrument was not incorporated into the insurance trust by reference; and that a separate trust is to be avoided if it will result in duplication of the gift to the beneficiaries.

Respondents, the relatives of Scott, ask for an affirmance of the decree, urging that Scott’s intent to establish a separate trust is established by the sixth amendment, which they say incorporates the terms, conditions and provisions of the original family trust into the insurance trust by reference, thereby creating a new and separate express trust the same as if the indenture of May 31, 1950 had been restated word for word in the sixth amendment; that the decree is not contrary to the will; that an unintended duplication of gifts will not result; that the decree is not contrary to the provisions of the original family trust or of the sixth amendment. Respondents further contend that paragraph 2 of the decree on Count I, which directs the executor to transfer property from the residuary estate to bring up the original family trust to $800,000 without counting the insurance proceeds, should be affirmed because (a) Scott intended that his family benefit from the insurance in addition to the benefits received by them under the will, and (b) the assets of the insurance trust are not to be counted in arriving at the amount of the bequest under section “SECOND”, Article Eighth of the will, irrespective of the establishment of a separate trust.

In construing the sixth amendment to the insurance trust in the light of Section “SECOND”, Article Eighth of the will, and in relation to the granting clause of the original family trust, it is our duty to ascertain and give effect to Scott’s intention as far as possible. Scott was a man with a strong sense of family loyalty; a devoted churchman, active in the affairs of the Christian Church and its affiliated institutions, boards and organizations; and an •exponent of higher education. In 1932 he had three daughters, three brothers and five sisters. In 1932 he made provision for his three daughters by creating the insurance trust for their benefit. Through the years Scott prospered. He was a widower. One of his daughters died in 1946, and his three brothers died in 1936, 1942 and 1943, respectively. By 1950 Scott was thinking in terms of creating trusts for the benefit of all his blood relatives and the religious and educational institutions and causes in which he was interested. In 1950 Scott created the original family trust, with $152,000 in assets. In the same year he created the Foundation, into which he transferred $250,000 in assets. The beneficiaries of the original family trust were his two living daughters, his four sisters, a grandson, a niece and a nephew. It is significant that Scott reserved the right to make future additions to the assets of both the original family trust and the Foundation. Not only did Scott contemplate additions to these trust estates. He implemented his thoughts with action numerous times. He increased the assets of the Foundation by $50;000. To the original family trust he added $50,-000 in 1951 and $60,000 in 1953. In March, 1954 Scott executed his will in which he bequeathed to the trustees of the original family trust such properties out of his residuary estate “as may be necessary to bring the fair market value of that Trust Estate up to the sum of Eight Hundred Thousand Dollars ($800,000.00).” (There is no denial that this was an addition to the original family trust, and no contention that this created a separate testamentary trust.) In October and November, 1954 Scott signed the fifth and sixth amendments to the insurance trust by which he changed the beneficiaries and directed that the insurance proceeds, instead of going into the insurance trust (there to be administered for the benefit of his daughters, the beneficiaries originally named), be paid in their entirety to the trustees “under the terms of” the original family trust. Scott had made provision for the beneficiaries of the insurance trust in the original family trust, and later made additional provision for them by the creation of additional trusts. On November 30, 1955 Scott created a new charitable trust, The Educational and Charitable Trust, to which he conveyed assets worth approximately $474,500. Scott reserved funds out of that trust for his family by directing certain payments therefrom into the second family trust, (December 1, 1955), which was created for the benefit of the members of his family. In the over-all picture, Scott provided that the members of his family receive a part of the benefit of his estate, the other part to be devoted to his favored religious, charitable and educational institutions. At the death of the last surviving named relative, the favored institutions were to succeed to all of his then remaining estate. He carefully balanced the claims he considered the respective relatives had upon his bounty, discriminately apportioning the percentage distribution to each of them as he deemed appropriate. He knew what he wanted and how to utilize trust and testamentary devices to accomplish his purposes. There is nothing to indicate that on October 7, 1954 when he executed the fifth, or on November 12, 1954 when he executed the sixth amendment to the insurance trust Scott did not know, or that he overlooked, that in his will he had provided that the original family trust be augmented out of his residuary estate a sufficient amount to bring up the value of that trust estate to $800,000. In executing the sixth amendment Scott presumably was fully conscious of the provision of his will that the original family trust have a level of assets of $800,000, and of its effect. Neither his will nor the sixth amendment discloses any intention to set up another and separate trust by which the $222,000 insurance proceeds should be administered independently of the original family trust, and no such intention can be implied, consistent with all of the documents. Scott, a lawyer and a keen businessman, fully aware of the legal effect and implications of his acts, with competent counsel at his disposal, would have written out and specified by express provision any intent and purpose to set up a separate and independent trust, and by codicil to his will would have raised the $800,000 figure to accommodate the sum to be received from the insurance trust, if he had intended the result contended for by the relatives. That he did not do so indicates he did not intend such a consummation. Scott’s direction in the sixth amendment that the insurance proceeds be paid St. Louis Union Trust Company and .William H. Armstrong “as trustees under the terms of” the original family trust indicates an intention to the contrary, namely, to administer the funds through an existing, active trust. This language does not incorporate the terms of the original family trust into the insurance trust by reference. In order to incorporate the terms of a trust into another instrument by reference the intention to incorporate must clearly appear, either by direct reference by which the terms and provisions of the one instrument are incorporated, adopted and made a part of the “incorporating” document, or from unequivocal facts and circumstances surrounding the transaction which are indicative of such an intention. 1 Page on Wills, § 263; 94 C.J.S. Wills § 163. An example of clear expression of intention to incorporate is the explicit provision in Bemis v. Fletcher, 251 Mass. 178, 146 N.E. 277, 37 A.L.R. 1471, cited by respondents. Two examples of facts and circumstances pointing unerringly to an intention to incorporate the terms of a trust by reference are to be found in Tootle-Lacy National Bank v. Rollier, 341 Mo. 1029, 111 S.W.2d 12, and Prudential Insurance Co. of America v. Gatewood, Mo.Sup., 317 S.W.2d 382, also cited by respondents. In Rollier the insured designated his wife as the beneficiary in his life insurance policies. She became insane, so as to three policies the insured changed the beneficiary to a bank “as trustee” and in other policies to “the Trustees under the last will and testament” of insured. Thereafter insured made a will leaving $6,000 to his housekeeper as a specific bequest, and bequeathing the residue of his estate in trust for his insane wife, naming the bank as trustee of the testamentary trust and executor of his will. This Court read the provisions of the testamentary trust into the policies and found and declared the existence of an express trust on the basis that Rollier intended, such a trust to be created, a fact made plain from the immediate and surrounding circumstances. In Gatewood this Court similarly found and declared the existence of a separate trust for the benefit of the insured’s children, stressing throughout the opinion the facts and circumstances manifesting an intention on the part of insured “that the bank, as trustee, take the proceeds of the policies and hold them in trust for the use and benefit of the children, separate and apart from his estate.” 317 S.W.2d, l. c. 387. Without detracting from these decisions and in full concurrence with the principle that an express trust will be found and declared upon proper facts when necessary to effectuate the intention of the party disposing of property and to prevent the thwarting of his objectives and purposes, we find the doctrine of incorporation by reference inapplicable. The sixth amendment directs the payment of the proceeds of the insurance trust to St. Louis Union Trust Company and William H. Armstrong “as Trustees under the terms of a certain irrevocable trust” and then describes the trust with more particularity. This descriptive language serves to identify the trust and the trustees to whom the proceeds are ordered paid. It relinquishes and exports the proceeds of the insurance policies from the insurance trust to the original family trust. It does not reach out for and import the terms, conditions and provisions of the latter trust into the sixth amendment. Nor does this language unite, blend and assimilate the terms of the original family trust in a new, separate and independent trust. There is no direct or indirect reference in the sixth amendment which incorporates, adopts or makes the terms and provisions of the original family trust a part of the sixth amendment. Nor do the facts and circumstances indicate any intention on the part of Scott to create a trust in the insurance proceeds separate and apart from the original family trust. That Scott did not intend that the insurance proceeds be administered in the insurance trust is further evidenced by new paragraph “SECOND” of the insurance trust, brought into being by the sixth amendment, by which Scott provided that after payment of all proceeds of the insurance trust to the trustees of the original family trust, the trustee under the insurance trust “shall be discharged in full of its said duties hereunder and shall be forever released from any obligation herein contained and from any claim or claims against it by any parties whatsoever,” and by new paragraph “THIRD”, providing that said trustee under the insurance trust receive no compensation for its services in connection with the insurance trust. This is a clear indication that Scott intended to discharge the trustee and terminate the insurance trust upon the collection of the proceeds of the insurance policies, payment thereof to the trustees and receipt of an acquittance therefor, and intended to eliminate duplication of expenses of administration (trustee’s fees, counsel fees, auditors’ charges, bookkeeping charges, etc.).

In the related field of wills, where a settlor who has created an inter vivos trust dies and leaves additional property which by his will is to be held upon that trust “it should be treated simply as an inter vivos trust, the property of which has been augmented by the will.” Scott on Trusts, Vol. I, § 54.3, p. 383. And see Wells Fargo Bank & Union Trust Co. v. Superior Court, 32 Cal.2d 1, 193 P.2d 721, 724; In re York’s Estate, 95 N.H. 435, 65 A.2d 282, 8 A.L.R.2d 611; State ex rel. Citizens National Bank v. Superior Court, 236 Ind. 135, 138 N.E.2d 900. Paraphrasing In re Rausch’s Will, 258 N.Y. 327, 179 N.E. 755, 80 A.L.R. 98, “The direction of the sixth amendment that the insurance proceeds be paid to the trustees, as trustees under the original family trust, was not a declaration of a trust, but the enlargement of the subject-matter of a trust declared already.”

We conclude that the true and intended effect of the sixth amendment, the will and the trust indentures, construed together, was to pay over, transfer and pour the insurance proceeds into the original family trust as an addition to that trust estate, the whole thereafter to he administered as a single entity and not as held upon a separate trust; to terminate the insurance trust; to have the insurance proceeds count in determining the amount necessary to be paid out of the residuary estate into the original family trust, and not to increase the level of assets in the original family trust above the $800,000 figure.

Respondents say the $222,000 should not be counted as a part of the $800,-000 even though the separate trust theory is not sustained; that Scott intended his family to benefit from his insurance, and never thought of the insurance proceeds as property to be held by his residuary estate but as proceeds to be held by the insurance trust at his death; that Scott could amend or revoke the insurance trust, or sell, assign or hypothecate the policies without the trustee’s consent; that time and effort would have to be expended after his death before the insurance proceeds would be collected; that Scott actually had pledged some of the policies, and that it took time for his executor to redeem them; that there was no vesting of any interest in the insurance proceeds “at” Scott’s death and no such vesting until “after” his death; that a will speaks as of the death of testator, and Scott’s will did not operate upon or affect the $222,000 because this money was not in Scott’s estate at the moment of his death. This contention must be disallowed. The fact that time must elapse between the occurrence of death and the payment of insurance proceeds does not postpone the vesting of the rights of the beneficiary. The rights of the beneficiary to the proceeds of a life insurance policy become “fixed and vested at the very moment [of death].” John Hancock Mutual Life Insurance Co. v. Dawson, Mo.App., 278 S.W.2d 57, 61; Smith v. Smith, Mo.App., 313 S.W.2d 753, 756. There was no hiatus between the time the will spoke and the time of the vesting of the legal right of the beneficiary-trustee (and the beneficial right of the trustees of the original family trust) to the proceeds of the life insurance policies. In legal contemplation the insurance proceeds were properties in Scott’s residuary estate at the time of his death.

Accordingly, the judgment is reversed and the cause is remanded to the circuit court with directions to set aside its decree on Count I, and enter a new decree, as of January 13, 1959, consistent with this opinion.

COIL and HOLMAN, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.


author: BOHLING, Commissioner.

text:
    Edward A. WALSH, Respondent, v. COUNTY OF ST. LOUIS, Missouri, a body corporate and politic; and James H. J. McNary, as Supervisor of St. Louis County, Missouri, Appellants.
    No. 48886.
    Supreme Court of Missouri, Division No. 2.
    Jan. 8, 1962.
    Motion for Rehearing or for Transfer to Court en Banc Denied Feb. 12, 1962.

      William E. Gallagher, St. Louis County Counselor, Richard E. Crowe, Asst. County Counselor, Clayton, for appellants.
    Hanlon & Busch, John B. Busch, John F. Hanlon, Clayton, for respondent.
   BOHLING, Commissioner.

This is a declaratory judgment action by Edward A. Walsh, County Clerk of St. Louis County, Missouri, against the County of St. Louis, Missouri, a body corporate and politic, and James H. J. Mc-Nary, as Supervisor of St. Louis County, Missouri. The Missouri Conservation Commission (hereinafter referred to as the Commission) appoints agents for the sale and distribution of hunting, fishing and other licenses or permits in the State. A “distributing agent” is appointed for a county, city or given area, and sub-agents are also appointed. The distributing agents, but not the sub-agents, are placed under bond. A service fee of twenty-five cents, in addition to the license charge, is authorized for the issuance of each permit. Plaintiff was appointed such distributing agent for St. Louis County. The material issue for determination is whether, under constitutional, St. Louis County Home Rule Charter and ordinance provisions affecting the office of the County Clerk of St. Louis County, plaintiff may retain as his own the $15,762.70 received as service fees for issuing said licenses or permits by himself and sub-agents in 1959 or whether St. Louis County is vested with all the right, title and interest in and to said fees. The judgment was in favor of plaintiff on this issue and defendants have appealed.

Plaintiff, who was public administrator, was elected County Clerk of St. Louis County on November 4, 19S8. He received a form letter, dated November 20, 1958, from the Commission stating the Commission was advised he had been elected County Clerk and we “assume you wish to be appointed distributing agent for Hunting, Fishing and Trapping permits in your county”; and: “If you do not wish to handle the permits please advise at once so other arrangements may be made.” Plaintiff, under arrangements had with the Commission, was covered under a blanket bond, effective December 20, 1958, in favor of the Commission in the sum of $50,000.00, and on said date commenced selling said permits as the Distributing Agent of said Commission for St. Louis County.

On January 1, 1959, plaintiff qualified, entered upon and ever since has been performing his duties as County Clerk of St. Louis County.

Plaintiff had ninety-one sub-agents in St. Louis County. Said sub-agents sold approximately ninety-five per cent and plaintiff five per cent of the permits issued in the county. Plaintiff would deliver the permits to the sub-agents as they needed them, or the sub-agents would come to his office for the permit books. The sub-agents would pay for the permit books as they received them or, in some instances, pay on a monthly basis. Plaintiff collected and retained the twenty-five cent service fee for the permits issued by himself and deputy county clerks at the office of the County Clerk. The sub-agents retained ten cents and plaintiff received fifteen cents of the •service fee for each permit issued by the sub-agents. In 1959, the year involved, the ninety-one sub-agents received $10,137.-S0 and plaintiff received $15,762.70 in service fees. Conservation Commission auditors audited plaintiff’s records covering the sale of these permits every thirty to forty-five days and reported to the Commission. Plaintiff deposited the moneys received for the permits and service fees in his name as agent for the Commission in two banks in St. Louis County, and made monthly reports and remittances direct to the Commission. He made no report covering these transactions to any county officer, and deposited none of this money with the County Treasurer. The Commission looks to the official distributing agent of a county for remittances and not to the county treasurer.

St. Louis County is a constitutionally chartered county of the first class under Art. VI, § 18, Mo.Const.1945, V.A.M.S., and has more than 100,000 inhabitants. No question is presented with respect to any provision here involved of the St. Louis County Home Rule Charter (St.L. C.H.R.C.) not conforming to the constitutional provisions in said Art. VI, particularly §§ 18(b) and 18(e), or the validity of any ordinance of the St. Louis County Council, which was vested by said Charter with all the legislative power of said county. St.L.C.H.R.C., Art. Ill, §§ 6, 22. Said Charter provided for the election, et cetera, among other officers, of “seven Councilmen, County Clerk, heretofore known as Clerk of the County Court, * * * and Treasurer” (St.L.C.H.R.C., Art. II, § 3), and that each of the officers above named “shall have all the powers and perform all the duties provided by law, except as otherwise provided by this Charter” (Id., § 4).

Defendants rely on the following provisions of the Missouri Constitution, the St. Louis County Home Rule Charter, and the Revised Ordinances of St. Louis County (St.L.C.R.O.) to sustain the contention that plaintiff is not and St. Louis County is entitled to the service fees received by plaintiff for selling and issuing permits for the Commission while County Clerk of St. Louis County.

Article VI, § 12, Mo.Const.1945, provides: “All public officers in the City of St. Louis and all state and county officers in counties having 100,000 or more inhabitants, excepting public administrators and notaries public, shall be compensated for their services by salaries only.”

Article III, § 22(2), St.L.C.H.R.C., vested the County Council with power: “To provide for the compensation of elective County officers * * *. The compensation of elective officers * * * shall not be increased or diminished during their term of office.”

Section 104.150, St.L.C.R.O., provides: “The County Clerk shall receive as total compensation for all services performed by him, an annual salary of Ninety-Six Hundred Dollars ($9,600.00), to be paid out of the County Treasury, chargeable to the General Revenue Fund.”

Section 104.390, St.L.C.R.O., provides: “All of the salaries provided-in this chapter and those fixed by the Charter of St. Louis County * * * shall constitute the total compensation for all of the duties performed by the designated officers and there shall be no further payment made to or accepted by said officers for the performance of any duties required to be performed by them under the law and Ordinances of this County * * *. All fees, costs and any other monies received or collected by any elective official of St. Louis County shall be paid by him into the County Treasury at least once each month.”

And § 303.010, St.L.C.R.O., provides: “Any officer, employee or agent of St. Louis County who shall receive any moneys belonging to the County, or any moneys not belonging to the County, which may be obtained by him by virtue of, or under color of such office or employment, which are to be held, paid out, or transmitted by the County or any officer, employee, or agent thereof, shall promptly deposit all such, moneys in the County Treasury; except that any such officer, employee or agent who shall receive any moneys not belonging to the County, which are to be paid to the United States of America,, or to the State of Missouri or any political subdivision thereof, shall promptly pay all such moneys as provided by the laws, ordinances, rules, regulations, or agreements, pertaining to said moneys. * * *.”

The Conservation Commission of Missouri was created by Amendment No. 4-to the Constitution of Missouri of 1875, by-Initiative Petition on November 3, 1936-Laws 1937, pp. 614, 615; Mo.Const.1875,. Art. XIV, § 16. This amendment, withi additional powers conferred upon the Conservation Commission, is in Art. IV, §§ 40' through 46, Mo.Const.1945, and provides,, among other things:

§ 40(a). “The control, management, restoration, conservation and regulation of the-bird, fish, game, forestry and all wildlife-resources of the state, * * * and the-administration of all laws pertaining thereto, shall be vested in a conservation conn-mission * *

§ 44. “Sections 40-43, inclusive, of this; article shall be self-enforcing * * *. All existing laws inconsistent with this article-shall no longer remain in force or effect.”’

§ 45. “The rules and regulations of the-commission not relating to its organization! and internal management shall become effective not less than ten days after being-filed with the secretary of state as provided; in section 16 of this article * *

It is conceded that the Rules and Regulations of the Commission are controlling on> the constitutionally provided subjects. See observations with respect to the powers of' the Commission in Marsh v. Bartlett (Banc), 343 Mo. 526, 121 S.W.2d 737, l. c. 740, 742, 744 [13-16], upholding said1. Amendment No. 4 against attack; Laws-1945, p. 664, now RSMo 1959, Ch. 252,. V.A.M.S.; 81 C.J.S. States, § 66e.

The portion of the Rules and Regulations of the Commission, known as the “Wild’ Life Code of Missouri,” material here,, read:

“2.25A. The clerk of each county court and the license collector of the City of St. Louis are appointed as distributing agents for hunting, fishing, trapping and replacement permits in the county, city or area designated by the Commission. Each distributing agent shall appoint sub-agents as the Commission may require to aid in the distribution of such permits, and the Commission may designate additional distributing agents under the same conditions and requirements as apply to the county clerks.

“Each distributing agent, before engaging in the sale of permits, shall enter into a bond * * * payable to the State of Missouri in the sum to be fixed by the Commission. The bond * * * shall be conditioned that he * * * shall accept, receipt for and remit to the State Revenue Department at the close of each month, all moneys derived from the distribution of such permits, less and except the service fee of twenty-five (25) cents.

“B. The total service fee charged for the issuance of any one permit shall not exceed twenty-five (25) cents, which is in addition to the permit fee fixed herein.”

We are directed to no case construing Art. VI, § 12, Mo.Const.1945. However, Article V of the Constitution of 1875 related to the Executive Department of the State, and § 24 thereof provided: “The officers named in this article shall receive for their services a salary to be established by law, which shall not be increased or diminished during their official terms; and they shall not * * * receive to their own use any fees, costs, perquisites of office, or other compensation. All fees that may hereafter be payable by law for any service performed by any officer provided for in this article shall be paid in advance into the State Treasury.”

Said constitution also provided for “a State Board of Equalization, consisting of the Governor, State Auditor, State Treasurer, Secretary of State and Attorney-General” (Art. X, § 18), (five of the seven executive officers named in Art. V, § 1). A statute, enacted in 1872, fixed the compensation of the members of the State Board of Equalization at the same pay per diem as received by members of the General Assembly. RSMo 1879, § 6669; Laws 1872, p. 87, § 12. See RSMo 1939, § 11037.

In awarding a peremptory writ of mandamus to compel payment to the Secretary of State of said per diem compensation, this court said in State ex rel. McGrath v. Walker (1888), 97 Mo. 162, 164, 10 S.W. 473, 474:

“It is not thought, however, that section 24, in its subsequent provisions as to fees, costs, etc., was intended to treat of anything except fees, etc., that strictly pertained to the offices therein mentioned, at the time of the adoption of the present constitution. Thus the attorney general, state auditor, and secretary of state were entitled to certain fees, etc., which fees, etc., were abolished by the constitution of 1875, and are now paid directly into the state treasury. 2 Rev. St.1879, §§ 5597, 5598, 5643. The framers of the constitution must be presumed conversant with that fact, and to have had an intelligent purpose in so framing section 24. It is not thought that section was intended to be extended any further than above stated; it therefore should be limited to the mischiefs and evils it was specially designed to remedy, and should not be so applied as to prevent the payment of the proper compensation for services rendered in another and distinct department of public service.” Consult State ex rel. Zevely v. Hackmann, 300 Mo. 59, 254 S.W. 53, 55 [1-5]; Coleman v. Kansas City, 351 Mo. 254, 173 S.W.2d 572, 577.

Section 9675, RSMo 1919, required the Attorney-General to enforce the provisions of the law relating to pools, trusts, et cetera, and provided that the Attorney-General receive, in addition to his salary, a fee of one-fourth of any fine collected, the same to be taxed as costs. In State ex rel. Barrett v. Boeckler Lumber Co. (1924), 302 Mo. 187, 205, 257 S.W. 453, 455 [2, 3], the court held the prosecution of such actions incidental to the duties required of an Attorney-General, the provision of § 9675 for the allowance of said fee unconstitutional in contravention of Art. V, § 24, Mo.Const.1875; but in the course of such holding expressly approved State ex rel. v. Walker, supra.

Section 4575, RSMo 1919, V.A.M.S. § 246.040 note, authorized county courts, when it appeared because of excessive additional expense incurred in collecting drainage and levee district taxes that county and township collectors should receive more than the one per cent allowed by law for collecting such taxes, to “allow such increase as to the court shall seem just, not to exceed an additional one per cent, of the amount collected.” The right of a township collector to retain this additional one per cent under an order of the county court was upheld in Little River Drainage District v. Lassater, 325 Mo. 493, 29 S.W.2d 716, 719 [4-6]; the court holding such action did not contravene Art. IX, § 12, Mo.Const.1875, requiring a law regulating the fees of county officers to be uniform in its operation, or Art. XIV, § 8, Mo.Const.1875, providing that the compensation or fees of no state, county or municipal officer shall be increased during his term of office. The court considered the county and township collectors were agents of the drainage and levee district in collecting such taxes and were not performing the duties of state, county, or municipal officers, stating: “The constitutional inhibition only applies to compensation or fees of officers for performing duties incident to their offices, and has no application to additional duties imposed upon such officers not ordinarily incident to their offices. [Citing cases.]”

Under State v. Walker, supra, and cases approving the holding therein, state, county and municipal officials are not precluded from receiving compensation for services rendered in another and distinct public service.

From 1905 (Laws 1905, p. 168, § 57) until the repeal of § 8913, RSMo 1939 (see Laws 1945, p. 665) our statutes were to the effect that: “County clerks * * * shall issue resident and nonresident licenses” under the Game and Fish law (§ 8913, supra) and authorized them to retain fifteen cents for their services in issuing each license. Consult State v. Moody, 202 Mo. 120, 100 S.W. 619 [2], Thus, the public policy of the State, evidenced by legislative enactment, was that the added duties were such as to authorize additional compensation for the performance of this service. It also has been the policy of the State under the Game and Fish law and the Missouri Conservation Commission law to have all moneys collected by way of license fees and fines for violations of the law to be paid into the State Treasury. RSMo 1959, § 252.050, V.A.M. S.; RSMo 1939, §§ 8913, 8962, 8963; Laws 1905, p. 168, §§ 57, 66, 67.

That portion of Rule 2.25 of the Rules and Regulations of the Commission with reference to appointing county clerks as distributing agents of the Commission’s permits relates more to the “organization and internal management” of the Commission (Art. IV* § 45, Mo.Const. 1945) than to the “control, management, restoration, conservation and regulation of the bird, fish, game, forestry and all wild-life resources of the state” (Art. IV, § 40(a), Id.) We know of no authority vested in the Commission to compel any county clerk or municipal officer to act as distributing agent of its permits or of any authority vested in a county, a municipality or any county clerk to compel any such appointment by the Commission. Said Rule on its face and as construed by the Commission (see the paragraph of Rule 2.25 relating to the bond of the appointee and monthly remittances to the State Revenue Department, and the form letter mentioned in the statement of facts to prospective appointees) contemplates an agreement between the Commission and the appointee before he becomes qualified as its distributing agent. The rule identifies a person, an official, preferred for the appointment, and* no doubt in counties where the compensation to be received would be unattractive aids the Commission in securing a competent distributing agent. On the other hand, the allowed compensation makes the appointment attractive in densely populated areas. One accepting the appointment as such distributing agent in a given area acts in his individual capacity and not in his official capacity if he is also the county clerk. Plaintiff became the agent of the Commission for selling and issuing its licenses or permits and performed a service in another and distinct department of the public service than that of County Clerk of St. Louis County. The issues presented are not controlled by St. Louis County Revised Ordinances §§ 104.150, 104.390 or 303.010, the material provisions of which are quoted supra. The clause of § 303.010, St.L.C. R.O., reading: “ * * * except that any such officer * * * who shall receive any moneys not belonging to the County which are to be paid * * * to the State of Missouri * * *, shall promptly pay all such moneys as provided by the laws, ordinances, rules, regulations, or agreements pertaining to said moneys” excepts from St. Louis County Ordinance provisions the payment of the license fees collected by the distributing agent and sub-agents of the Commission in St. Louis County into the treasury of St. Louis County. They are to be remitted monthly by the distributing agent to the State Department of Revenue under § 252.050, RSMo 1959, V.A.M.S., and Commission Rule 2.25.

State v. Moody, 202 Mo. 120, 124, 100 S.W. 619 [1], states that under the Game and Fish law (see Laws 1905, p. 158, §§ 57, 66, 67) “ * * * all moneys collected by way of license fees and by way of fines for violations of the law are required to be paid into the state treasury and become part of the revenue of the state. The fact that the money so collected is for the use of the game protection fund does not prevent the state from controlling it * *

No point is made with respect to the Commission’s compensating its distributing agents and sub-agents in this case through the service fees authorized by Rule 2.25.

We approve the holding of the trial court that plaintiff has the right to the title of the $15,762.70 received by him as service fees in his capacity as distributing agent for the Missouri Conservation Commission.

The trial court awarded the County of St. Louis a judgment for $336.96 against plaintiff to reimburse the County for pay received from the County by deputy county clerks while their services were being used during working hours for plaintiff as distributing agent for the Missouri Conservation Commission. Defendants present the point in their brief that this was error, quoting, “for the reason that such an issue was not raised by the pleadings or upon the trial of the case.” Relief by “declaratory judgment” is sui generis and, while not either strictly legal or equitable, its historical affinity is equitable. Liberty Mut. Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945, 953 [4], 125 A.L.R. 1149; Pittman v. Faron, Mo.App., 315 S.W.2d 836, 839 [3]. Defendants’ counterclaim included a prayer: “and for such other and further relief as the court may deem meet and proper.” We have said that a court of equity, having obtained jurisdiction, will retain it to do complete justice between the parties. Johnson v. Blase, Mo., 322 S.W.2d 759 [6]; Pittman v. Faron, supra [4]. Consult § 527.120, RS Mo 1959, V.A.M.S.; Rowland v. City of St. Louis, Mo.App., 327 S.W.2d 505, 511 [5]. The law, as we read it, also provides, so far as here involved, that a pleading shall state as a counterclaim any claim, not the subject of any pending action, which the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim. See Civil Rule 55.45, V.A. M.R.; § 509.420, RSMo 1959, V.A.M.S.

The right of appeal is statutory and is granted to “any party to a suit aggrieved by any judgment of any trial court in any civil cause.” § 512.020 RSMo 1959, V.A. M.S.; State ex rel. St. Louis Union Trust Co. v. Sartorius, 350 Mo. 46, 164 S.W.2d 356, 358 [1, 2].

We are not prepared to say that under this record St. Louis County is a party aggrieved by and that the court erred in entering the judgment in its favor on the grounds stated in the point in appellants’ brief.

The judgment is affirmed.

BARRETT and STOCK ARD, CC., concur.

PER CURIAM.

The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.

All of the Judges concur.


author: WESTHUES, Presiding Judge.

text:
    W. A. O’MOHUNDRO, Respondent, Josephine Leonora O’Mohundro, Dulcie Berr, and Laura Porterfield, Substituted Respondents, v. Eva MATTINGLY, Wiley Leon Mattingly, Leahman Lavell Mattingly, Jeanetta Mattingly, Patty Lovenia Lee, Nancy Lee, Robbie Lee, and Clarence Lynn Mattingly, Appellants.
    No. 48588.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1962.
    Motion for Rehearing or to Modify Opinion Denied Feb. 12, 1962.
    Elvis A. Mooney, Bloomfield, and Hyde & Purcell, Poplar Bluff, for appellants.
    Powell & Jones, Dexter, for respondents.
   WESTHUES, Presiding Judge.

This suit was filed in Stoddard County, Missouri, to set aside two deeds. One deed conveying approximately 195 acres of land was dated July 16, 1940, and the other conveying approximately 37 acres was dated February 6, 1943. All of the land was situated in Stoddard County. Each deed was executed by W. A. O’Mohundro, a single person, and the grantees in each deed were Eva Mattingly and the heirs of her body. Eva was a niece of W. A. O’Mo-hundro. The ground upon which it was sought to set aside the deeds was nondelivery. The trial court granted the relief prayed for and the defendants appealed to this court.

The suit was filed by W. A. O’Mohundro and the defendants named in the petition were Eva Mattingly, her children, Wiley Leon Mattingly, Leahman Lavell Mattingly, Patty Lovenia Lee, and Clarence Lynn Mattingly, and Eva’s grandchildren, Jean-etta Mattingly, Nancy Lee, and Robbie Lee. While the case was pending in this court, plaintiff W. A. O’Mohundro died and on motion Josephine Leonora O’Mohundro, plaintiff’s widow and executrix of her husband’s estate, Dulcie Berr, and Laura Port-erfield, beneficiaries in a will of W. A. O’Mohundro, which was filed for probate in Butler County, Missouri, were substituted as parties plaintiff. Hereinafter we shall refer to the original plaintiff as W. A.

For a better understanding of the case, we shall relate some of the history of the relationship of the parties involved in this controversy. In 1911, the defendant Eva, then only a few months old, was taken into the home of W. A. and his wife Rachel. Eva was a daughter of W. A.’s brother Jim. Her mother died a short time after Eva’s birth. W. A. and Rachel reared Eva as though she were their own child. They had no children of their own. Eva married when she was about eighteen years of age. Rachel, W. 'A.’s first wife, died in 1939. W. A. married for a second time in 1945. This second wife was a widow with children. Prior to this second marriage, W. A. executed the two deeds in question by which two tracts of land were conveyed to Eva and the heirs of her body. The deeds were kept at the Bank of Fisk of which Marshal Shain was president. W. A.’s business at the bank with reference to the deeds seemed to have been transacted with Shain. In February, 1943, W. A. executed a will giving the land described in the deeds to Eva and the heirs of her body. This will was kept at the bank.

The disputed issue in the trial of the case was whether the deeds were ever delivered to Eva. W. A. contended that there was no delivery while Eva claimed there was delivery. W. A. admitted that he executed the deeds in question and further that he executed a will bequeathing all of his property to Eva. He stated, however, that he at no time delivered the deeds to Eva or authorized anyone else to do so. W. A. claimed that he kept his papers in a trunk at home until 1945 when he took the deeds to the Bank of Fisk and handed them to Shain or someone at the bank for safe keeping. He further stated that he did not rent a deposit box at the bank until 1950; that before that year, and after 1945, his papers had been kept in the vault at the bank; that in 1950, he rented a box and was given two keys which he kept hanging on a nail in a bedroom at home. He claimed he at no time gave a key to Eva and that Eva never saw the deeds until she removed them from the lock box while he was seriously ill on September 11, 1952, and on the same day had them recorded. It was admitted that Eva did remove the deeds from the safe deposit box on that day and that she had them recorded. Eva claimed that W. A. authorized her to take the deeds and have them recorded. W. A. testified that he did not do so. More of this later. Eva testified that in 1944, before W. A. (called “Pa Arno” by Eva) married a second time, he took her to the Bank of Fisk and in the presence of Marshal Shain the following occurred:

“A Pa Arno told me that he had made me deeds to his property, and that he wanted me to come and go with them and take the old deeds and look them over to see positively that they had the same quotations.
“Q You mean the description of the land was the same ?
“A Yes, sir.
“Q Was that done?
“A Yes, sir.
“Q And who did it?
A Me and Pa Arno and Marshal Shain went in his office and searched them out.
“Q Searched them out of what?
“A From the old deeds onto those.
“Q Did he have them in the bank or in the lock box?
“A In the lock box.
“Q Was there anything else in the lock box at that time?
“A Yes, sir, the abstracts, I had bonds in there, he had bonds in there, and my will he had made me before he made the deeds.
“Q Now, at that time did he ever hand these deeds to you?
“A Yes, sir.
“Q Tell the Court what he said to you.
“A After we had looked them over he said to Mr. Shain, ‘Marshal, I am giving Eva these deeds and whenever I’m dead she don’t need to administer or no lawyer to tend to her business.’
“Q What did you do with the deeds ?
“A I took them and put them in the locker box and locked them back up.
“Q Did you do anything with the other deeds and the abstracts and things ?
“A Just left them in the box.
“Q Did you put them in the lock box, too, where these were ?
“A Yes, sir.
“Q Now, how many keys were there to this lock box?
“A Two.
“Q Now, tell the Court who had the keys?
“A Pa Arno had the keys up until ’45.
“Q That is about the time you’re telling the Court about ?
“A He gave me my deeds in ’44. He gave me those deeds in ’44, and he went with me to the bank.
“Q You say in ’45 then he gave you—
“A A key.
“Q Is this the key ?
“A That is the key, yes, sir.” .

In some respects Eva’s evidence just quoted was corroborated by W. A.’s witness Marshal Shain. Note that W. A. claimed he did not rent a box at the bank before 1950 and that Eva did not see the deeds before 1952. Marshal Shain testified on cross-examination as follows:

“Q Mr. Shain, they had a lock box at the time when the first Mrs. O’Mo-hundro was alive, did they not ?
“A I think so, but I don’t remember the date they took out a box.
“Q In any event, they had had a lock box before 1952?
“A Yes.”

Shain was not positive as to what occurred with reference to the use of the deposit box. He stated that the records were lost as to any matters before 1952 when the bank was moved from one building to another. About Eva’s using the box, his evidence was as follows:

“Q (By Mr. Mooney) Do you know whether or not she ever used one of the keys to get in the lock box at any other time besides on September 11th?
“MR. POWELL: You mean before that date?
“MR. MOONEY: I mean before.
“THE WITNESS: I don’t — it seems to me as if she did, but I couldn’t be positive.
“Q (By Mr. Mooney) You would not tell the Court that she did not use the lock box?
“A No, I wouldn’t tell that she did not.”

With reference to W. A. and Eva’s being in the bank to examine the deeds, Shain testified as follows:

“Q Now, do you recall at any time after you wrote this deed, which is Defendants’ Exhibit 1, do you recall Mr. O’Mohundro and Mrs. Mattingly "being there when they checked the descriptions of the deeds with other deeds in your presence?
“A Yes, sir.
"Q And do you know what happened on that occasion?
“A No. I don’t remember. I know they came in and looked at some deeds in my office, and I don’t remember the conversation even.
“Q But at that time the deed which you had written and the deed which Mr. Arnold had written was laid on the desk and prior deeds to that land was checked with your help to see whether they actually conformed to the description ?
“A That’s right.
“Q And Mr. O’Mohundro and his ■daughter had conversation there at the hank, all of which you didn’t hear, too, didn’t they?
“A I don’t remember, I don’t remember the conversation.
“Q Do you remember whether Mrs. Mattingly had the old deeds and the new deeds and abstracts in her hands at ■that time ?
“A No, I don’t.
“Q You were all three there together and had these two deeds and ■other deeds there with you ?
“A Yes.
“Q Now, that was before 1952, September 11th, wasn’t it?
“A Before that?
"Q Yes.
“A Yes.”

W. A. testified that this occurred in 1957 after the deeds were recorded. Eva testified that W.'A. had given her a key to the lock box as far back as 1945 and that she had used the box to deposit war bonds in her name and others in W. A.’s name.

Note W. A.’s evidence as to the reason he had made the deeds:

“Q Mr. O’Mohundro, what would have been the purpose now at that time of making this second deed after the will was made ?
“A When I made the second deed?
“Q Yes.
“A Well, I had a couple of brothers that I knowed would try to break that will and get that land, that’s why I made the deed.
“Q You made the deed on the 6th day of February so that from that time on your brothers couldn’t take the land away from Eva?
“A Yeah, that’s right, or have any trouble.”

In September, 1952, W. A. went to a hospital in Poplar Bluff and underwent surgery on September 5. He was very ill and not expected to live. Before he went to the hospital, he went to see M. W. Henson, a lawyer at Poplar Bluff, to have some papers changed. W. A. was ill at the time. The purpose of this visit to Henson was left in doubt. Note W. A.’s evidence:

“Q When you talked to Mr. Matt Henson did you give any instructions as to what you wanted to do about your property ?
“A No, he didn’t have time to talk to me. I did tell him, I did tell him — he asked me where those papers was I wanted changed, and I told him in the Fisk Bank, and he said, Well, go over there and get your papers and bring them over and we’ll just fix it like you want it.’ He said, Tve got to go, I ain’t got time to talk to you.’ ”

W. A. never saw Henson again before he went to the hospital. While W. A. was at the hospital on September 11, a brother of W. A. or Eva called Henson and asked him to come to the hospital for the purpose of writing a contract. This contract signed and executed by Eva as party of the first part and W. A.’s wife, Leonora, as party of the second part was prepared by Henson at the hospital and signed by the contracting parties. Each party was given a copy thereof. In this contract, the two deeds here in question were referred to and were described with particularity. After such description, the contract continued as follows :

“ * * * which said deeds have been delivered to the said Party of the First Part and which said land described in said deeds has been until the date of this agreement held by the said W. A. O’Mohundro with the right to use, occupy and enjoy the proceeds therefrom, and by mutual agreement between the said W. A. O’Mohundro, the maker of said deeds, and Eva Mattingly, the Party of the First Part herein, the said W. A. O’Mohundro was to enjoy the use, occupancy and control of all of the land described in said deeds during the remainder of his natural life.
“It is agreed and understood by and between the Party of the First Part and the Party of the Second Part that the said W. A. O’Mohundro is now seriously ill and a patient in the Poplar Bluff Hospital at Poplar Bluff, Missouri, and this contract is made between the parties hereto to avoid any misunderstanding or disagreement in the event of the death of the said W. A. (Arno) O’Mohundro. It is agreed by and between the parties hereto that in the event of the death of the said Arno O’Mohundro during the year 1952, that the Party of the Second Part shall have all of the 1952 crop grown and harvested from the land described in the deeds hereinabove mentioned, and the Party of the First Part will pay to the Party of the Second Part the sum of Five Hundred Dollars ($500.00) per annum for five (5) years, totalling the sum of Two Thousand Five Hundred Dollars ($2500.00) in the event the Party of the Second Part does not depart this life prior to the expiration of the term of said payments; said payments to be made semi-annually $250.-00 on or before the 31st day of July, 1953, and Two Hundred and Fifty Dollars ($250.00) on or before the 31st day of December, 1953, and Two Hundred and Fifty Dollars ($250.00) on or before the 31st day of July and the 31st day of December of each year thereafter until the total sum of Two Thousand Five Hundred Dollars ($2500.00) has been paid, provided that in the event of the death of the Party of the Second Part before said sum of Two Thousand Five Hundred Dollars ($2500.00) is fully paid, that no further payments shall be required to be made by the Party of the First Part.
“In consideration of the payments to be made by the Party of the First Part to the Party of the Second Part as here-inabove specified, the Party of the Second Part covenants and agrees that she will not in any manner contest the right of the Party of the First Part to the possession, ownership, control and emoluments to be derived from the land described in the two deeds herein-above mentioned; * *

On the same day, September 11, after the-above contract was signed, Eva went to the-bank and obtained the deeds and had them, recorded. W. A. left the hospital on September 21. He was informed by Eva that she had had the deeds recorded. W. A. was., also told of the contract and discussed the-terms thereof with his wife and Eva. W. A. testified that he did not want the deeds-recorded; further, that it was his desire for • his wife to have $2500 in cash and also to-have the 37-acre tract of land. W. A. testified that about five or six weeks after he-left the hospital, he had a discussion with: his wife about the contract. Note his evidence :

“Q Now, I will ask you if at about that same time you and your wife didn’t read this contract right here together in your home?
“A My wife read that to me in about five or six weeks — ■
“Q After you came home?
“A. Yes, sir. She got it and come to me with it and said, ‘Arno, I didn’t get what I thought I was going to get, what you told me I was going to get.’ I said, ‘Well, read it.’ I took it and couldn’t read it, couldn’t see it.
“Q What had you told her she was going to get?
“A I told her, and we come to an agreement on it, that she would get the little place on the road and $2500.-00, that’s what I told her.”

He testified that at various times he attempted to have Eva “fix it up” and that she always promised to do so until about 1957. Eva denied that she agreed to transfer the 37-acre tract to W. A.’s wife. She stated that she went to see a lawyer; that this lawyer advised her, in substance, that since the deeds were recorded a retransfer by her would not clear the title; that the provision in the deed to “the heirs of her body” meant that Eva had only a life estate. Eva testified that thereafter she informed W. A. she would not sign any more contracts. This suit was filed on April 30, 1958. W. A. testified that Eva told him that he did not have a life interest in the land and that she was claiming the rents; that that was the reason he brought this suit.

Eva denied that she claimed the rents from the land and testified that while she and her husband were living on the property they paid rent to W. A. She further testified that it was understood between her and W. A. that he, W. A., was to have the use of the land as long as he lived. W. A. admitted that he had collected all of the rents up to the time this case was tried. It was in evidence that W. A. spoke to the assessor about having the property assessed in Eva’s name but that since he was to have all the rents he would pay the taxes. Insurance policies on the property were likewise changed showing Eva to be the owner. In 1956, the deposit box at the bank was placed under the name of Eva Mattingly and thereafter she retained both keys to the box.

On February 1,1958, only two months before W. A. filed this suit, he received a letter from an insurance agency in answer to an inquiry he, W. A., had made about the insurance on one of the houses. In this letter, W. A. was advised that the agency had no record of insurance in W. A.’s name. To this letter, W. A. dictated the following reply written in longhand:

“Mr. Trammel—

“You say you can’t find where I ever had any insurance with you — It’s strange that you can’t find it now — as I have had a policy on the house North of Fosters Store for over thirteen (13) years and it seems as tho when the payment of said policy came due those 13 years it could always be found and as far as that the title has been changed to Eva Mattingly and as for that I have a life time dowry on the place will (?) control as long as I live and I am very much alive yet — and I have the proof that I did have a policy there and have the cancelled checks that I sent you as payment on said policy and I also wrote you when I went to renew my policy and told you the title had been transferred to Eva Mattingly and I ask you if it would be legal to take the policy out in my name — Mrs. Mattingly tells me she consulted a lawyer and he told Her the policy was not legal and I could not collect on it if that is true — I had no protection — but you had taken my money any how — so now I'd like a refund of it.

“Arno Omohundro

“824 N. D St.

Poplar Bluff. Mo.”

W. A. testified that in 1957 his wife went to see lawyer Henson who had prepared the contract signed by her (his wife) and Eva and consulted the lawyer about her rights; that she was told the contract had run out. In other words, under the terms of the contract there was no obligation on Eva to pay any sum to W. A.’s wife. No payments were ever made on the contract. Eva testified the purpose of the contract was to make some provision for W. A.’s wife for five years in case W. A. died during 1952; that after five years, the wife would be entitled to social security. Mrs. W. A. was sixty-six years old at trial time which was July 8, 1960.

There was a sharp dispute with reference to a letter claimed to have been signed by W. A. on September 11, 1952, authorizing the bank to permit Eva to take papers from the lock box. Eva claimed the letter was typed by Mr. Henson. Mr. Henson denied that he typed the letter. It was written on Henson’s stationery. There was evidence that W. A. signed the Tetter and evidence that he did not. Furthermore, there was evidence that W. A. was not able to sign a letter on that day and, if he had, he would not have been conscious of having done so. The letter and the circumstances under which Eva obtained the deeds on September 11 make it difficult to determine just what occurred on that day. However, a consideration of the contract signed by Eva and Mrs. W. A. O’Mohundro, the terms of which were later discussed by all of the parties (including W. A.) and the actions and conduct of'W. A. with reference to the assessments of the property for tax purposes and to the insurance renders immaterial just what did occur on September 11 as to how Eva obtained the deeds. There was clearly a ratification of Eva’s action of recording the deeds. In fact, the only substantial objection voiced by W. A. was that he wanted his wife to have the 37-acre tract in addition to the $2500. Cleary v. Cleary, Mo.Sup., 273 S.W.2d 340, l. c. 347(15). ■

The burden was on W. A. to prove nondelivery. 26A C.J.S. 14 Deeds § 183; Galloway v. Galloway, Mo.Sup., 169 S.W.2d 883, l. c. 888(16, 17). See Cleary v. Cleary, supra, 273 S.W.2d l. c. 346(5-9), where this court stated that “The essence of delivery, and the controlling element, is the grantor’s intention, which may be manifested by words or acts or both; and where, as here, the case turns upon the question of whether there was a delivery, the burden of showing nondelivery rests upon the party who seeks to invalidate a deed upon such ground.”

Delivery of a deed may be made so as to pass title even though the grantor retains possession of the deed. It is the intention of the parties, especially that of the grantor, which controls. In the Galloway case, supra, 169 S.W.2d l. c. 888(10-15), this court said, “The delivery of a deed is not rendered ineffectual by the placing of it by grantee in a safety deposit box, or other place of safekeeping, to which both the grantor and grantee have access. Slagle v. Callaway, 333 Mo. 1055, 64 S.W.2d 923, 90 A.L.R. 1366; Phillips v. Phillips et al., 50 Mo. 603. Nor is the delivery of a deed rendered ineffectual if the deed is given into the custody of the grantor for safekeeping. Hale et al. v. Weinstein et al., Mo.Sup., 102 S.W.2d 650.” See also Baker v. Baker, 363 Mo. 318, 251 S.W.2d 31, l. c. 37(10, 11), 33 A.L.R.2d 1431.

In the case before us, the grantor named in the deeds testified that he had executed a will bequeathing the property in question to Eva and fearful that “a couple of brothers that I knowed would try to-break that will and get that land, that’s why I made the deed.” If there was no delivery of the deeds, the purpose in making the-deeds to protect the will and Eva would not have been effected. Eva’s testimony that-W. A. handed the deeds to her at the bank with the statement that “I am giving Eva these deeds and whenever I’m dead she don’t need to administer or no lawyer to-tend to her business” is entirely consistent with W. A.’s intention as he testified. The banker, by his evidence, supported Eva’s-version. The banker was W. A.’s witness..

It is our opinion that W. A. failed to prove his case by a preponderance of the evidence and that the evidence was insufficient to support a decree of cancellation.

The judgment of the trial court is hereby reversed and the cause remanded to the trial court with directions to set aside the judgment entered and to dismiss the petition. It is so ordered.

All concur.