Hoefer v. Musser

417 S.W.3d 330, 2013 WL 6800823, 2013 Mo. App. LEXIS 1539
CourtMissouri Court of Appeals
DecidedDecember 23, 2013
DocketNo. SD 32576
StatusPublished
Cited by2 cases

This text of 417 S.W.3d 330 (Hoefer v. Musser) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hoefer v. Musser, 417 S.W.3d 330, 2013 WL 6800823, 2013 Mo. App. LEXIS 1539 (Mo. Ct. App. 2013).

Opinion

WILLIAM W. FRANCIS, JR., J.

Kim Musser (“Musser”), as an individual, and as Personal Representative of the Estate of Vineyard Dwain Hoefer (“decedent”), appeals the “Judgment” of the trial court which quieted title to certain real estate in favor of Rodney C. Hoefer (“Hoe-fer”) 1 as an individual and as Successor Trustee of the Vineyard Dwain Hoefer Trust (the “Trust”). Musser asserts one point of trial court error. We affirm the Judgment of the trial court.

Factual and Procedural Background

This appeal involves an approximately 280-acre farm (“the farm”) located in Ripley County, which was owned by decedent in 2008. In the spring of 2008, decedent met with Derrick Kirby (“Kirby”), an attorney practicing in Doniphan. Both Hoe-fer and Musser were present for part, or all of the meetings Kirby had with decedent. Decedent advised Kirby that he wanted to “create a dynasty trust for a farm he had in Ripley County” where a family member would be able to use and live on the farm “forever.” Decedent wanted to create as many obstacles as possible so that the property would always be called the “Hoefer farm.” Kirby advised decedent that he could not set up a trust that would last “forever,” but that he could tie up the property for a couple of generations. Pursuant to decedent’s request, Kirby prepared an irrevocable trust — “The Vineyard Dwain Hoefer Trust” — with the only asset contained within it to be the farm.

On May 8, 2008, decedent executed the Trust in Kirby’s office and Kirby then notarized decedent’s signature. In addition, Kirby prepared a warranty deed, which was executed by decedent and also notarized by Kirby, transferring the farm in question to the Trust. Following the execution of the Trust and the warranty deed, Kirby delivered the original documents to decedent, along with a “number of copies.” The terms of the Trust provided that decedent would be the Trustee; Hoefer would be the Successor Trustee; and Hoefer’s son, Matthew, would be Successor Trustee upon the death of Hoefer. The Trust contained the following provision:

[333]*3331. Trust Property: The Grantor has transferred and delivered to the Trustee all of the property described in the attached [Schedule [A] which, together with all property hereafter transferred and delivered to the Trustee or Successor Trustee(s) shall constitute the trust estate and shall be held, administered and distributed as provided in this agreement.

(Bold in original).

The only asset listed on Schedule A was the legal description for the farm. In addition, the Trust also provided:

4. Irrevocability: The trust shall be irrevocable, and the Grantor hereby expressly acknowledges the he shall have no right or power, whether alone or in connection with others, and in whatever capacity, to alter, amend, revoke, or terminate the trust, or any of the terms of this agreement, in whole or in part.
5. Powers of the Trustee: The Trustee and Successor Trustee(s) of the trust ... shall have full power and authority to do any and all things necessary or proper to manage and control the property of said trust....
(A). The Trustee and Successor Trustee(s) of the trust ... shall have full power to manage the property, pay all the taxes and other lawful charges against it, and to make, execute and deliver any and all instruments to make effective the powers herein granted....
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(C). To sell, convey, exchange, assign, mortgage, pledge, transfer, make contracts with respect to, or any manner dispose of or encumber all or any part of the trust assets[,] ... EXCEPT Trustee shall not sell, convey or pledge any real property owned by the trust at any time for any reason.
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6.Distribution: [I]t is Grantor’s wish that the real property described in Schedule A hereto remain in this Trust for as long as the lineal descendant’s [sic] of Matthew Hoefer survive for the benefit of such descendants. Accordingly, Grantor wishes upon his death that the real property contained in this Trust be managed by [Hoefer] until his death or incapacitation; then by Matthew Hoefer until his death -or incapacitation; then by Matthew Hoefer’s living children, if any, in equal shares, until their death or incapacitation; then distributed to Matthew Hoefer’s children’s living children in equal shares or, if no living children, to Matthew Hoefer’s lawful heirs.

Approximately three months after the execution of the Trust, Musser called Hoe-fer and indicated to him she had the original Trust, it had not been recorded, and advised Hoefer that he needed to record the Trust. On August 21, 2008, Hoefer recorded the Trust.

Following recording of the Trust, decedent moved from the farm house to a residential care facility. While decedent was residing in the care facility, the farm house burned down resulting in a total loss. All of decedent’s personal effects in the house were destroyed. In October 2009, with decedent’s permission, Hoefer built a house of his own on the farm.

Following the death of decedent in the spring of 2010, it was discovered that the warranty deed, executed in Kirby’s office, had not been recorded. Musser, in her capacity as the personal representative of decedent’s estate, instituted a probate action and listed the farm land as an asset of the estate.

On March 18, 2011, Hoefer filed a “Petition to Quiet Title” and asked the trial court to “quiet[ ] title to the real estate ... to [Hoefer] as Successor Trustee of the [334]*334[Trust].” On April 11, 2012, Hoefer filed a “First Amended Petition” petitioning to quiet title in Count I, and in the alternative in Count II, alleging “Unjust Enrichment” and asking the court to award him $250,000 for the improvements he made to the farm; i.e. construction of the house. On August 29, 2012, a bench trial was held.

Hoefer testified that he currently lived on the farm and in addition to the house he built, there was also a “trailer house” and three “domed barn building[s].” He stated decedent had only lived on the farm three or four years prior to his setting up the Trust as he lived out of state up until that time. Hoefer testified that his “whole life” he had worked on the farm with his dad taking care of the cattle and farm while decedent lived out of state, and that he was “[p]retty much raised on it[.]” Hoefer testified that decedent told him he wanted Hoefer to have the farm and to pass it on “from generation to generation,” that he wanted it in a trust, and did not want it sold.

Hoefer stated that one day decedent called him and told him, “I want to give you my farm,” and asked Hoefer to meet him at Kirby’s office. Hoefer and Musser both sat in on the discussion between decedent and Kirby regarding setting up a trust. On May 8, 2008, the day decedent was to sign the Trust, he called Hoefer and asked him to be present and again stated he wanted Hoefer to have the farm. Before the Trust was signed, Kirby advised Hoefer and Musser that the Trust would tie up the land for generations to come, that Hoefer would have to pay the taxes on it, and money could not be borrowed against it. Kirby also advised that upon Hoefer’s death, use of the farm would be passed to Hoefer’s son Matthew.

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Bluebook (online)
417 S.W.3d 330, 2013 WL 6800823, 2013 Mo. App. LEXIS 1539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoefer-v-musser-moctapp-2013.