Goins v. Melton , 343 Mo. 413 ( 1938 )

ON MOTION TO TRANSFER TO BANC. Motion for rehearing was overruled September 17, 1938, and thereafter and in due time appellant filed motion to transfer to banc. It is alleged in the motion that the opinion is in conflict with Section 3112, Revised Statutes 1929, and in conflict with the holding in Sims v. Brown (Div. 2), 252 Mo. 58, 158 S.W. 624. Able counsel for appellant say in their suggestions in support of the motion that "from beginning to end of this appeal" Sims v. Brown has been relied upon. It is true that in Sims v. Brown the deed was held not to be testamentary, although the grantor reserved the power to sell. However, the basis of the decision in that case was (252 Mo. l.c. 68, 158 S.W. 624) that "the instrument when considered from its four corners shows a clear intent to create a voluntary express trust or settlement in favor of Catherine Brown and her bodily heirs, except the eighty acres conveyed in trust to the other daughter, with a power of revocation reserved to the settler." It is an elementary rule of law of trusts, as held in the Sims case, that the maker of a voluntary trust may reserve the power to revoke, and "such reservation of power is not inconsistent with the creation of a voluntary trust." And it is stated, in the Sims case (252 Mo. l.c. 68, 158 S.W. 624) that "courts of equity have always looked with suspicion upon voluntary trusts or settlements which do not reserve a power of revocation."

In the present case no trustee, with power to sell, was designated in the deeds, as in the Sims case, and the deeds here show no intent to create a trust estate. The trust feature of the Sims case, we think, clearly distinguishes it from the present case.

As to the opinion being in conflict with Section 3112, Revised Statutes 1929, the principal opinion and this opinion are answers sufficient.

November 1, 1938, suggestion of the death (September 4, 1938) of appellant was filed, and it is stated in the suggestion that petition would be filed asking revival of appellants' cause in the name of defendants, Marvin and Arthur Melton. Petition to revive was not filed. However, there is no occasion for revival, because, according to the suggestion of death, appellant diedafter the cause was submitted here. [Vitale v. Duerbeck,338 Mo. 556, 92 S.W.2d 691, l.c. 697.]

The motion to transfer to banc should be overruled, and it is so ordered. Ferguson, C., concurs; Hyde, C., not sitting.