Opinion
No. 42354.
December 10, 1951. Motion for Rehearing or to Transfer to Court en Banc Denied January 14, 1952. Opinion Modified on Court's own Motion January 14, 1952.
Eugene H. Buder, Martin, Peper Martin, Christian B. Peper and Malcolm W. Martin, all of St. Louis, for appellants.
Richard O. Roberts, St. Louis, for respondent.
Plaintiff-respondent's declaratory judgment action was one of interpleader involving ownership of stock of plaintiff corporation. Defendants-appellants are: Oscar E. Buder; his wife, Eugenia H. Buder, individually and as the registered owner of the stock as trustee; their son, Eugene H. Buder; and their daughters, Susan Buder Horan and Antonia L. Wiegand. Defendants-respondents are G. A. Buder, brother of Oscar E. Buder, and the Acreage Realty Co., a corporation. The appeal is properly here because of the amount involved. Sec. 3, Art. V, 1945 Const.
The primary question is: For whom was Eugenia H. Buder trustee? A rather lengthy statement of facts is necessary. The trial court's rulings can be better stated after a partial factual statement.
G. A. Buder and Oscar E. Buder were stockholders and directors of the American Press, a corporation, owner of the St. Louis Times. The American Press and the Star-Chronicle, a corporation, owner of the St. Louis Star, were negotiating the transfer of the Times to the Star-Chronicle. In anticipation of such transfer, the American Press, in March, 1932, placed as $1,250,000 deed of trust upon most of its assets. The notes secured thereby are hereinafter referred to as the "secured notes."
By contract dated June 21, 1932, the Star-Chronicle purchased the Times, the plant and certain other assets of the American Press. The American Press was to furnish evidence that the properties were free of liens and encumbrances, other than that of the $1,250,000 deed of trust. The secured notes were to be deposited with the Star-Chronicle with power to release the trust deed and cancel the notes. The consideration was 5000 shares of Star-Chronicle second preferred stock, par value $100, to be delivered to the American Press or its assigns on or before July 1, 1934, if the latter had fully performed its obligations. Meantime, assignable interim certificates were to be issued. The American Press' charter was forfeited in 1934, and its statutory trustees are not parties to this suit. It was conceded that the contract was fully performed by the two corporations.
The secured notes and deed of trust were deposited on June 22, 1932. The secured notes "were segregated and placed in separate envelopes each marked with the name of the intended holder, with the following names, and in the following amounts: G. A. Buder Jr., $270,000.00; G. A. Buder, $175,000.00; Pontiac Realty Company, $175,000.00; Arcadia Realty Company, $125,000.00; Arc Realty Company, $180,000.00; Arkmoreland Realty Company, $15,000.00; Susan R. Buder Estate, $25,000.00; Lydiade Investment Trust, $100,000.00; Eugenia H. Buder, Trustee, $110,000.00; Mercantile-Commerce Bank and Trust Company for Chase National Bank, $75,000.00."
G. A. Buder had full authority from the American Press in the distribution of the 5000 shares and the interim certificates were issued in accordance with his directions. On July 20, 1932, he wrote the Star-Times to issue same as follows: G. A. Buder, Jr., 945; G. A. Buder, 875; Pontiac Realty Co. 612 1/2; Arcadia Realty Co., 437 1/2; Arc Realty Co., 630; Arkmoreland Realty Co., 52 1/2; Susan R. Buder Estate, 87 1/2; Lydiade Investment Trust, 350; Eugenia H. Buder, Trustee, 385; Mercantile-Commerce B. T. Co., 150; G. A. Buder, Trustee, 475; total, 5000."
G. A. Buder made no request for the issuance of certificates to either the American Press or to the Acreage Realty Co., one of the defendants-respondents herein. Acreage is a real estate holding corporation in which each Oscar E. Buder and G. A. Buder own a one-half interest. The Pontiac, Arcadia and Arc companies were holding corporations owned and controlled either by G. A. Buder or members of his family. The Susan R. Buder estate was that of the deceased mother of Oscar E. Buder and G. A. Buder in which each had a one-fourth interest. The Lydiade Investment Trust was a corporation formed (shortly before her death in August, 1930) by G. A. Buder's wife, Lydia D. Buder, G. A. Buder and their son, G. A. Buder, Jr. Mrs. Lydia D. Buder left her estate to this trust which was thereafter operated by and for the benefit of G. A. Buder and G. A. Buder, Jr. Oscar E. Buder and G. A. Buder had been attorneys for the Arkmoreland company, but neither had a financial interest in that corporation. The Mercantile-Commerce interim certificate for 150 shares was in payment of a fee.
In 1934, stock certificates were issued to the interim certificate holders designated by G. A. Buder on July 20, 1932, except: (a) In addition to the 350 shares for which it held interim certificates, Lydiade received 850 shares upon interim certificates issued to G. A. Buder individually, 117 upon interim certificates issued to G. A. Buder, Trustee, and 150 upon interim certificates issued to the Mercantile-Commerce; (b) 368 shares were issued to 8 individuals or concerns (apparently all American Press creditors) upon interim certificates issued to G. A. Buder as trustee. (After 1936, 200 of these 368 shares were transferred to G. A. Buder, 19 to G. A. Buder, Jr. and 6 to Lydiade.) As in the case of the interim certificates, no stock certificates were issued either to Acreage or the American Press.
The 7 certificates for the 385 shares issued to, and since carried on the Star-Times books in the name of "Eugenia H. Buder, Trustee," are those involved in this case. Between 1936 and 1944, the Star-Times paid dividends on this stock to "Eugenia H. Buder, Trustee." (Thereafter, up to and including January, 1946, such dividends were paid into court.) She expended these funds in the care, maintenance and education of her children. She included these dividends in income tax returns which she made as trustee for the children during their minority.
On June 22, 1940, Oscar E. Buder wrote a letter to the collector of internal revenue. Referring to the 1938 returns "of Eugenia H. Buder, trustee for Eugene H. Buder, Susan R. Buder and Antonia Louise Buder," he stated that "they each own respectively the following property," including "233 1/3 shares of pfd. stock of the Star-Times." He stated: "The original stock was given to them by me many years ago and put in the name of Eugenia H. Buder, Trustee, because of the minority of the children. There is no written trust agreement, but neither Mrs. Buder nor I have any right of disposition of said property, it being the absolute property of said children respectively."
On April 9, 1943, Oscar E. Buder wrote the Star-Times, stating that the 7 certificates "were carried in the name of Eugenia H. Buder, trustee for Eugene H. Buder, Susan B. Horan (nee Buder) and Antonia Louise Buder because at the time of its issuance they were minors. * * *" He requested issuance of certificates in the names of Eugene H. Buder for 128 shares, Susan B. Horan for 128, and Antonia Louise Buder for 129.
In May, 1943, Oscar E. Buder filed with the Star-Times a certificate of exemption from federal taxes upon stock transfers. Exemption was claimed upon these grounds: (1) That the transfer was one from natural guardian to wards, then all of age; (2) that in fact no trustee-beneficiary relationship existed, there having been no trust agreement, written or otherwise; and (3) that the certificates were inadvertently issued in the name of Eugenia H. Buder, trustee, instead of Eugenia H. Buder, guardian of Eugene H. Buder, Susan R. Buder and Antonia Louise Buder, minors.
On April 17, 1943, G. A. Buder wrote Elzey Roberts, the Star-Times' president, stating that he had learned that the certificates issued in the name of Eugenia H. Buder, trustee, might be presented for transfer out of the name of the trustee. He requested that any such transfer be not made, stating that the stock "is held for the benefit of parties directly interested in the same," and that the trustee had no personal interest and, so far as he knew, did not claim to have any interest. He referred to the issuance of the interim certificate to Eugenia H. Buder, trustee, in 1932, the surrender of the interim certificate and the issuance of the stock to Eugenia H. Buder, Trustee, in 1934, and stated that the certificates "have remained in her name for the benefit of the real parties in interest." He said that the dividends had been paid to her "without protest on the part of the writer, as the matter of dividend collections would eventually be adjusted in keeping with the amount collected and paid, and the rights of the respective parties in interest." He referred to his letter of July 27, 1932, to Mr. Thomas Cobbs, as explaining "the issuance of the certificates to a nominee at that time." (The referred-to letter was not put in evidence.) "No change was made from such instructions for the reason that no cause for doing so has presented itself until the above information came to the writer's attention." He asked that the matter be kept "strictly personal and confidential."
On May 12, 1943, the Star-Times wrote G. A. Buder that it had no information as to who held the beneficial interest in this stock, asked him if he claimed any interest, beneficial or otherwise, therein, and, if so, to submit proof of such claim. To which, on May 17, 1943, G. A. Buder replied: "The stock was originally issued to Eugenia H. Buder, Trustee, by direction of the writer as a matter of convenience, and neither Eugenia H. Buder nor any of the 3 children named had any interest in the stock represented by such certificates." He asked the Star-Times to withhold payment of further dividends to Mrs. Buder, Trustee, or any one of her children until otherwise notified by him.
By letter dated July 19, 1932, G. A. Buder deposited with the Star-Chronicle unsecured notes of the American Press "which said notes are held and owned by the hereinafter named parties in the amounts set opposite their respective names, to-wit: G. A. Buder Jr., $285,000.00; G. A. Buder, $255,495.00; Pontiac Realty Company, $147,000.00; Arcadia Realty Company, $114,200.00; Arc Realty Company, $147,500.00; Arkmoreland Realty Company, $5,000.00; S. R. Buder Estate, $36,800.00; Lydiade Investment Trust, $99,000.00; Eugenia H. Buder, Trustee, $97,500.00; total unsecured notes, $1,187,495.00. The above notes are deposited as a matter of accommodation to the American Press, in order to enable it to comply with its contract of sale, above referred to, and are to be returned to the undersigned, for the benefit of the above named respective owners and holders, without prejudice of any kind or character by reason of such deposit."
According to Mr. Thomas Cobbs, the Star-Chronicle's attorney: the unsecured notes were required by him for examination to insure that none were liens upon the property; the interim certificates, and later the stock certificates, were issued only upon instructions received from the American Press, were prorated upon the basis of 35% of the par value of the secured notes and not upon the basis of the unsecured notes; the unsecured notes were returned to G. A. Buder on October 8, 1937.
Among the notes accompanying G. A. Buder's July 19, 1932, letter were $97,500 American Press notes. These were in various amounts, bore various dates, were payable to Acreage, and were endorsed by Acreage, by Oscar E. Buder, president. Four, totaling $30,000, were endorsed "to the order of Eugenia H. Buder, Trustee for Eugene H. Buder." Three, totaling $32,500, were endorsed to "Eugenia H. Buder, Trustee for Susan R. Buder"; and three, totaling $35,000, were endorsed to Eugenia H. Buder, Trustee for Antoinette Louise Buder." None of the notes show the date of endorsement.
(By these endorsements, Oscar E. Buder, by gift, set up a trust for his children, one which we shall call the Oscar E. Buder trust. But that trust is not the one here involved. We are concerned with the trust created by the American Press, acting through G. A. Buder.)
Also among the notes accompanying G. A. Buder's July 19, 1932, letter were $99,000 American Press notes. These were in various amounts, bore various dates, were payable to Acreage and were endorsed by Acreage, by Oscar E. Buder, president, "to the order of the Lydiade Inv. Trust." None of the notes show the date of endorsement.
As will appear, the evidence was conflicting as to whether there was any relationship between the $1,187,495.00 unsecured notes accompanying G. A. Buder's July 19, 1932, letter and the $1,250,000 secured notes deposited under the contract, and upon the basis of which the interim certificates were issued. The Star-Chronicle's only interest in the unsecured notes was to verify that they were not liens upon the property. It is apparent that G. A. Buder did not direct the issuance of the stock upon the basis of the unsecured notes and the evidence is not material on that issue. However, the evidence as to these unsecured notes may be of some significance upon the issue as to the identity of the beneficiary of the American Press trust.
G. A. Buder placed in evidence $110,000 American Press notes. These were in various amounts, bore various dates, were payable to Acreage and were endorsed by Acreage by Oscar E. Buder, president. None showed the date of endorsement. Three, totaling $37,500, were endorsed to "Eugenia H. Buder, Trustee for Eugene H. Buder." Five, totaling $37,500, were endorsed to "Eugenia H. Buder, Trustee for Susan R. Buder." Five, totaling $35,000, were endorsed to "Eugenia H. Buder, Trustee for Antoinette Louise Buder." Upon all such notes the printed "secured by deed of trust of even date herewith" was "inked out" by typewritten "xxxs." The notes in the $110,000 set were different from those in the $97,500 set described above. It is noted, however, that the $110,000 total of one set corresponds to the $110,000 figure listed for Eugenia H. Buder, Trustee, among the secured notes. It is also noted that the endorsements upon five of the $110,000 set name "Antoinette" Louise Buder as beneficiary.
The substance of the answer of G. A. Buder, defendant-respondent here, was that "the notes and stock were in fact intended for and owned by" Acreage; and that Acreage was entitled to all dividends. He asked that the stock and dividends be transferred to Acreage for the benefit of himself and other creditors of Acreage, "if such there be."
The Oscar E. Buder group, defendants-appellants here, pleaded an agreement between Oscar E. Buder and G. A. Buder whereby, at the same time the $97,500 unsecured American Press notes were endorsed to "Eugenia H. Buder, Trustee for" the three children, respectively, similar notes in the same amount were endorsed to Lydiade; that all such endorsements were made by Oscar E. Buder, president, at G. A. Buder's directions and by order of the Acreage board of directors, consisting of the two brothers, and were made in satisfaction of Acreage indebtedness to the two brothers, respectively. The Oscar E. Buder group also pleaded estoppel and laches in G. A. Buder having designated Eugenia H. Buder as trustee, in not having designated her as trustee for Acreage and in having acquiesced in her receipt, and disposition to persons other than Acreage, of the dividends between 1936 and 1943, and in not having asserted any adverse claim until 1943.
Oscar E. Buder, as president of and attorney for Acreage, filed an answer for Acreage in which it disclaimed all interest in the 385 shares. On motion of G. A. Buder, this answer was stricken. Acreage filed no other pleading. G. A. Buder's motion for an accounting was sustained. By agreement, a referee was appointed and the case was heard by him. Two comprehensive certified public accountant's reports were filed with the referee. The referee died before making his reports and recommendations. By agreement, the cause was submitted to the trial court upon the testimony at the hearings, the exhibits and the accountant's reports.
The respective answers of the Oscar E. Buder group and of G. A. Buder conceded the existence of an express trust of personalty and sought its establishment and enforcement. These are matters for a court of equity. Eldridge v. Logan, Mo.App. 217 S.W.2d 588, 590. The plaintiff Star-Times' declaratory judgment action became one actually in equity between the two brothers, with plaintiff in the position of a disinterested intervenor. Matters relating to a trust may be determined in a declaratory judgment action. State ex rel. Clay County State Bank v. Waltner, 346 Mo. 1138, 145 S.W.2d 152, 154.
The trial court found that the record failed to establish a trust for either the Oscar E. Buder children or for Acreage; and that a resulting trust existed for the benefit of American Press creditors. The decree was that new stock certificates be issued for the 385 shares in the names of and delivered to, and that the impounded dividends be paid to, the surviving members of the last board of directors of the defunct American Press in trust for the benefit of Acreage and such other American Press creditors "who shall establish a legally enforceable and valid claim against the American Press." The court declined to order repayment of the dividends received by Eugenia H. Buder, Trustee, prior to suit. Plaintiff was allowed $2500 attorneys' fees.
Returning to the evidence, Mrs. Eugenia H. Buder testified that: when her husband delivered the stock to her, he told her she was trustee for the three minor children; until 1943, no one else ever claimed the dividends, and she never had a conversation with G. A. Buder relative to any of these matters; her youngest daughter's name was Antonia, not "Antoinette"; G. A. Buder, on repeated occasions, called Antonia "Antoinette" as a term of endearment; G. A. Buder never told her (Eugenia H. Buder) that she was acting as trustee for either him or Acreage; she did not recall having seen the $110,000 secured notes which were in the envelope marked "Eugenia H. Buder, Trustee"; she left all business matters to her husband; her first information regarding the matter was when he brought her the stock certificate for the shares; she paid nothing for the stock; he told her she was to have charge of it for the children; she kept it in the box of the Roxy Realty Co., an Oscar E. Buder family corporation; she kept separate accounts for the children; she "felt I was trustee for the children; so I never considered it my property actually"; she never asked G. A. Buder for the stock; she never asked G. A. Buder for the stock; she relied entirely on her husband's statements; she had no personal claim against the American Press in 1932; she did not receive the interim certificates and remembered nothing about them; she knew nothing of any agreement between her husband and G. A. Buder about the endorsement of the notes to her as trustee; she had no discussion with anyone other than her husband, and never talked to G. A. Buder about it; so far as she knew, the children did not own those notes, had paid nothing for them and had no claims against the American Press.
Eugene H. Buder, one of defendants-appellants, testified that: the notes had never been delivered to him; he first saw them in 1945; he made no request for transfer of the stock to his name, gave no consideration and had no personal knowledge of how it was done; he had never talked to G. A. Buder about it.
Without objection upon direct examination, and upon cross-examination by counsel for G. A. Buder, Mr. Thomas Cobbs, Star-Times' attorney, testified that: in 1943, after G. A. Buder had challenged the right of the Oscar E. Buder children to have the stock transferred to them, he (Cobbs) had asked Oscar E. Buder who the beneficiaries were; Oscar E. Buder told him that he had "assigned it to his children and then afterwards, as I remember, told me it was a mistake to make a trust, it should have been to his wife as guardian for the children." Oscar E. Buder did not comply with Cobbs' request that he (Oscar E. Buder) furnish him (Cobbs) with evidence relating to this matter.
We turn next to the testimony of Oscar E. Buder and G. A. Buder. For many years, these two brothers practiced law together and jointly engaged in business and financial enterprises. Their personal relations were friendly and fraternal. Such was the situation during the Nineteen Thirties. But in 1940 or 1941, their friendship ceased. As the trial judge observed, the record shows that "unfortunately, both men manifested an extreme bitterness toward each other." At the referee's hearings, each, like Prospero, expressed amazement "that a brother should be so perfidious." Another suit between them (for an accounting) was pending and, at the hearings in the instant case, G. A. Buder stated that another (receivership of Acreage) would be brought. The trial court said of the testimony of both: that it was "vague in so many instances, that they shifted theories so many times, that their testimony was clearly shown to be in error in several instances, and that there were so many contradictions and purely self-serving statements," he was unable on the basis of the testimony of either to reach the conclusion each respectively sought.
Both G. A. Buder and Oscar E. Buder find support for their respective contentions in the conflicting and confusing evidence as to the Buder and Buder books. And the accountant's reports contain items tending to prove some features of each brother's case. The two handled their own financial affairs and those of their companies through the firm's books. There was a Buder and Buder bank account in which were deposited receipts by, and from which were withdrawn disbursements of, the various companies through which the two Buders, or members of their families, handled both their joint and their several or individual business activities. For example, Acreage had no separate bank account. Its receipts and disbursements were placed in and paid out of the Buder and Buder bank account and the items were handled as book entries in an Acreage account on the Buder and Buder books. An account for each of the companies, and for each of the Buders individually and for some of the members of their families individually, was carried on the Buder and Buder books. Apparently there were hundreds of these accounts. Countless "book transfers" were made among them. These books were so kept between 1909 and 1946.
A major portion of the testimony, the exhibits and the accountant's reports relate to the accounts on the Buder and Buder books, "book transfers" and which account was "in the red" and which "in the black" at various times. Much evidence was received, and much was rejected, relating to separate financial and business transactions of both Oscar E. Buder and G. A. Buder having no relation whatsoever to the instant controversy. Both sides sought to make of the hearings a partial accounting between the two brothers. The Buder and Buder bookkeeping methods were inadequate. Many of the minutes and books of the companies were lost or missing. Others apparently never existed. At the hearings, there were charges of alteration of book entries and removal of papers from the office and of documents from the vault. As the trial judge observed, "it appears impossible to reconcile all of the documentary evidence." However, as neither Acreage's present financial status nor an accounting between the two brothers is here involved, we have sifted such evidence and have considered only the portions thereof as tend to show who was the beneficiary or beneficiaries of this trust, the existence of which all of the parties concede.
Oscar E. Buder testified that the 350 shares to Lydiade and the 385 shares to Eugenia H. Buder, Trustee, were issued as the result of an agreement. He said that the $99,000 Lydiade unsecured notes listed in G. A. Buder's, July 19, 1932, letter represented the $100,000 secured notes in the envelope marked "Lydiade Inv. Trust"; and that the $97,500 Eugenia H. Buder, Trustee, unsecured notes (plus one-half of a $25,000 attorneys' fee due Buder and Buder from the American Press) represented the 110,000 secured notes in the envelope marked "Eugenia H. Buder, Trustee."
Oscar E. Buder testified thus as to an action taken at a June, 1932, meeting of the directors of Acreage (the corporate minute books were shown to have been missing): "G. A. Buder explained that inasmuch as the Acreage Realty Company owed him, in round figures, a hundred thousand dollars, and owed me, in round figures, a hundred thousand dollars, which money had been advanced to that company by both of us and was a debt owing to him and to me, that we transfer these notes to him and to me in payment of that debt to the extent that the Company owed us both money. * * * And he took it upon himself. * * * to ask the bookkeeper to ascertain what amount was owing him and what amount was owing me, because we had gotten some moneys, all of which up to that time, correctly, reflected in the books of Buder and Buder. * * * He brought these notes with these endorsements to me and asked me to sign them, following the action of the Acreage Realty Company, and I endorsed all of them, the notation having been — the endorsement in type having already been on the notes when he handed them to me.
"Q. Do you know of your own knowledge who prepared those endorsements? A. G. A. Buder did.
"Q. Do you mean he put them on the typewriter? A. No, he had it done; or, he is the one that assumed that duty and brought the notes in to me and had me sign them — endorse them.
"Q. Who designated the actual parties who were to be the endorsees of these notes? A. G. A. Buder.
"Q. At the time of the meeting? A. At the time following that meeting, I told him, `Now, I would like to have mine put in the name of Eugenia H. Buder, as trustee for one-third each of the three children,' inasmuch as I wanted to replace those for their property, and he said, `I think that is a good idea; I will do the same as to mine; I will put them in the name of Lydiade Investment Trust.'"
G. A. Buder denied such an agreement. He testified that the 350 shares were issued to Lydiade as a result of the purchase from Acreage, in 1929, of a $40,000 American Press note by him and a $60,000 American Press note by his wife. Neither paid cash to Acreage for these notes. The items were handled as book entries on the Buder and Buder books, whereby the accounts of G. A. Buder and his wife, respectively, were charged with these amounts and the Acreage account was credited with the $100,000. The accountant's report confirms these purchases.
As to Acreage's debts to the two brothers, G. A. Buder said that in 1929, the Acreage account on the Buder and Buder books was "in the red," and "it was definitely agreed that Oscar and I would each pay $100,000 to the Acreage Co." G. A. Buder made a $100,000 contribution by means of a check drawn upon an individual bank account, i. e., not by a debit charge upon the Buder and Buder books. This payment was entered upon the Buder and Buder books and credited to the Acreage account. Oscar E. Buder's $100,000 payment was by a transfer on the Buder and Buder books, his personal account being charged and the Acreage account being credited this amount. (We do not think it material either whether G. A. Buder immediately "drew out" his $100,000 on the Buder and Buder books, as Oscar E. Buder claimed, or whether Oscar E. Buder's account on the Buder and Buder books was "in the red," at that time, as claimed by G. A. Buder.) The accountant's report confirms these advancements to Acreage.
Apparently, all of the unsecured obligations of the American Press, other than its notes payable to Acreage, have been paid off, although the record is not clear as to this. The same may be said as to Acreage's liabilities, other than those, if any, owed to either or both of the two brothers. The only Acreage balance sheet discovered by the accountant was one for December 31, 1939. It showed no loans receivable from the American Press and no loans payable to either G. A. Buder or Oscar E. Buder.
Of his own testimony, G. A. Buder says in his brief: He made the designation to Eugenia H. Buder, Trustee, "as a matter of convenience and accommodation so that the 385 shares would be readily available for use in taking care of any outstanding obligations which the American Press was required to pay in connection with the sale, with any balance remaining to be for the benefit of Acreage Realty Co."
Oscar E. Buder testified as to two conversations with G. A. Buder, both since 1940. Of the first, said Oscar E. Buder: "In that conversation I said that Mr. Bruegeman (the Star-Times' secretary) advised me that you are claiming that stock, and he said, `Yes.' I says, `It is strange if you had a claim to that stock you didn't make some statement before this.' I says, `You have no interest in that stock whatsoever.' He says, `You know very well that was put in your wife's name as trustee for me.'" Of the second: "Then I subsequently found these notes and I showed him those. He says, `That doesn't mean anything'; and later on we were discussing the matter and he said, the stock belonged to his son, G. A. Buder Jr. and that he would see that he got it." G. A. Buder denied these conversations.
For whom, then, was Eugenia H. Buder trustee? This court must try this cause de novo and weigh the evidence. Ash Grove Lime Portland Cement Co. v. White, 361 Mo. 1111, 238 S.W.2d 368. We do not have the benefit of the trial court's findings based upon the credibility of the witnesses. But, as the trial court observed, he himself did not have "the opportunity, often so helpful in a case revolving around disputes of fact, of seeing the witnesses and observing their demeanor." Nevertheless, we must determine this beneficiary issue upon the instant record. It does not suffice to say that, because the evidence is conflicting, or because of the inconsistencies in the evidence of both of these adversary defendants, we must declare a failure of the express trust, and a resulting trust in favor of the American Press.
An express trust in personalty may be shown by express declarations and also all the surrounding circumstances. Gwin v. Gwin, 240 Mo.App. 782, 219 S.W.2d 282, 285. "Equity needs only to ascertain the intention of the creator of the trust." Ramsey v. City of Brookfield, 361 Mo. 857, 237 S.W.2d 143, 145. The same principle applies where (there being no dispute as to the existence of the trust itself or the identity of the trust res) the identity of the beneficiary can be ascertained with reasonable certainty. Compare Tootle-Lacy Nat. Bank v. Rollier, 341 Mo. 1029, 111 S.W.2d 12. In that case, insurance policies were endorsed to one as "trustee," no beneficiary being named. We determined the beneficiary from all the circumstances, and refused to declare a resulting trust. See also Hughes v. Charlton, 104 W.Va. 640, 141 S.E. 1. And compare Sanford v. Van Pelt, 314 Mo. 175, 282 S.W. 1022, wherein land was conveyed to one as trustee, no beneficiary being named. We found a resulting trust only because of lack of competent evidence (of the surrounding circumstances) to establish the identity of the intended beneficiary.
The record shows that, when Oscar E. Buder endorsed the American Press notes payable to Acreage to his wife as trustee for the three children, respectively, thereby setting up the Oscar E. Buder trust, he waived and abandoned his claim against Acreage, an American Press creditor. He never thereafter asserted this claim against either company. These facts show that the American Press trust was based upon a consideration, viz., liquidation of Oscar E. Buder's claim against Acreage.
The evidence relating to the Oscar E. Buder trust, and to G. A. Buder's knowledge thereof, are circumstances to be considered in determining the beneficiary of the American Press trust. Too, if the American Press trust resulted from and was based upon the Oscar E. Buder trust, as the Oscar E. Buder group contends, such evidence tends to explain the statements made in Oscar E. Buder's 1940 letter to the collector of revenue and in the exemption certificate which he filed with the Star-Times in 1943.
Our study of the entire record requires the finding that the beneficiaries were Oscar E. Buder's children. The conduct of Oscar E. Buder and his wife was consistent with that theory. Neither claimed the stock for themselves. However, we shall disregard the testimony of Oscar E. Buder except insofar as it is either uncontradicted, is strongly supported by other evidence or is sustained by the admissions of G. A. Buder.
There was no evidence contradictory of these facts: Oscar E. Buder handed his wife the stock certificates in 1934 and told her she was trustee for the 3 children; she retained possession of the certificates and received the dividends and spent them upon the children during their minority; and, during the 11 years following the issuance of the interim certificates, during the 9 years following the issuance of the stock certificates, and during the 7 years following the year she began receiving the dividends, no one, including G. A. Buder, ever represented to her, or to her husband or her children, that she was trustee for anyone other than the children. These clear, cogent, unchallenged facts alone strongly corroborate the Oscar E. Buder group theory.
On the other hand, the only evidence tending to support G. A. Buder's theory is his own statement to that effect. His other testimony tends to discredit his theory. A conclusion that he intended either the American Press or Acreage or their creditors to be beneficiary is not reasonably possible in view of the fact that he had 475 shares issued to himself, "trustee," being, he says, trustee for these companies and their creditors. The record suggests no reason why G. A. Buder should have named Eugenia H. Buder trustee unless he intended the beneficiaries to be his brother's children. She had never been "a convenience or accommodation" party in a any of G. A. Buder's transactions. (Denying that he had ever told Oscar E. Buder that Eugenia H. Buder was trustee for either G. A. Buder or G. A. Buder, Jr., G. A. Buder said: "I wouldn't want her to be my trustee. I had a son who could be my trustee if I wanted one.")
G. A. Buder was the agent designated by the American Press to liquidate its affairs. He was also its creditor. In designating how the interim certificates were to be issued he had 475 shares issued to himself as trustee. In the course of the liquidation he transferred some of these 475 shares to creditors in settlement of claims against the American Press. He testified that claims "which should have been paid" by transfer of 333 of the 385 Eugenia H. Buder, trustee, shares were paid by him out of his 475 trustee shares.
Yet, for 11 years, G. A. Buder said nothing to either Eugenia H. Buder or Oscar E. Buder about the 385 shares and never asserted to anyone else that he had intended either Acreage or the American Press to be the beneficiary. He admitted that he had never told Eugenia H. Buder that she was to act "in that capacity." At no time did he ever call upon her to pay claims out of the 385 shares. He admitted that "he had never spoken to Eugenia once about it, even up to this day, not one word. * * * I haven't spoken to her at any time of, or concerning this transaction." If, as G. A. Buder contends, he named Eugenia H. Buder trustee for either the American Press or Acreage, he certainly was under a duty to so notify her; also, thereafter to call upon her to contribute toward the liquidation of claims against both companies.
G. A. Buder admitted that "the 385 shares were turned over to Eugenia H. Buder as trustee, unbeknown to her and without consulting her; she never knew anything about it. * * * She never claimed that stock once to me. * * * She never once come to me to say, `I think I ought to have that stock,' Eugene didn't come, Susan didn't come and Tony didn't come. Why didn't anyone of them come? They have grown to be of age. * * *" He admitted that he "knew that the dividends were being paid to Eugenia" but said "there was no occasion for me to make any attempt to stop payment of dividends after they once started."
We think that the record shows that, at the time this trust was created, G. A. Buder intended the beneficiaries to be his brother's children, and not the American Press or Acreage. At the time he designated Eugenia H. Buder as trustee, he knew that Oscar E. Buder had set up a trust for his children. He undoubtedly knew about the Oscar E. Buder trust on July 19, 1932, when he transmitted the unsecured $97,500 American Press notes, payable to Acreage and endorsed by Oscar E. Buder, Acreage's president, to Eugenia H. Buder, Trustee, for the three children, respectively. Those notes were forwarded with the same letter with which he forwarded the $100,000 unsecured notes endorsed to Lydiade by Oscar E. Buder, president.
But, G. A. Buder says, he did not authorize or direct the making of those endorsements. The endorsement to "Antoinette" which he admitted was one of his "pet names" for Antonia, inclines us to believe that he did. But whether he did or not, he must have observed the endorsements upon the unsecured notes which he sent to the Star-Chronicle. And, as stated, he himself placed in evidence the $110,000 set of notes endorsed as were the $97,500 set.
G. A. Buder named Eugenia H. Buder trustee. He knew she was in possession of the stock certificates, was administering the trust for her three children, was receiving the dividends, and was not paying the income to either the American Press or Acreage. He was liquidating the affairs of the American Press and settling with its creditors. Yet, at no time did he notify the trustee he had named who the beneficiary was. Nor did he, either as the American Press' liquidating agent or as the owner of one-half of Acreage's stock or as an American Press or an Acreage creditor, ever call upon Eugenia H. Buder or Oscar E. Buder for information regarding this trust or claim the income therefrom for himself or in behalf of either company. Nor did he ever ask a court of equity to determine this beneficiary matter or seek to compel the trustee to account to him, to Acreage or to the American Press.
Our conclusions render unnecessary ruling the other questions briefed and argued here. We should, however, refer to two of G. A. Buder's assignments. We agree with his statement that a resulting trust arises in favor of the grantor "where there is no evidence of the terms of the express trust." However, we have found clear, satisfying and persuasive evidence of the terms of this express trust. See Ambruster v. Ambruster, 326 Mo. 51, 31 S.W.2d 28, 77 A.L.R. 782. G. A. Buder cites two cases. But in Sanford v. Van Pelt, 314 Mo. 175, 282 S.W. 1022, there was no competent evidence whatsoever as to the identity of the beneficiary of the express trust of property conveyed to one as "trustee." And in Platt v. Huegel, 326 Mo. 776, 32 S.W.2d 605, identity of beneficiary was not involved; the issue was whether an express trust had been created.
G. A. Buder also asserts that in an interpleader suit "each claimant is in effect a plaintiff who must recover upon the strength of his own title and not upon the weakness of his adversary's claim of title." He cites State ex rel. Bennett v. Becker, 335 Mo. 1177, 76 S.W.2d 363, and Denton Gin Co. v. Gathings, Mo.App., 216 S.W.2d 959. Our sustention of the claims of the Oscar E. Buder group is the result of the application of that principle.
As this case must be remanded, we should rule the $2500 allowance for plaintiff's attorneys' fee. The allowance is fair and reasonable, and should be taxed as costs.
The judgment and decree is reversed and the cause is remanded with directions to enter a judgment and decree in conformity herewith.
VAN OSDOL and COIL, CC., concur.
The foregoing opinion by LOZIER, C., is adopted as the opinion of the court.
All concur.