Bunel v. Nester

• Decision Date: 28 March 1907
• Citation: 101 S.W. 69,203 Mo. 429
• Parties: BUNEL et al. v. NESTER et al.
• Court: Missouri Supreme Court

101 S.W. 69

203 Mo. 429

BUNEL et al. v. NESTER et al.

Supreme Court of Missouri, Division No. 1.

March 28, 1907.

1. GUARDIAN AND WARD—SALE BY GUARDIAN —PURCHASE BY GUARDIAN.

Where a deed of trust taken by a guardian secures the debt of the guardian as well as that of the ward, the guardian may, at a sale under the deed, bid in the property in his own right to protect himself as well as his ward.

2. TRUSTS — IMPLIED TRUSTS — EVIDENCE TO ESTABLISH— WEIGHT AND SUFFICIENCY.

Where plaintiff relies for title on raising a resulting or a constructive trust, the proof must be so clear, unequivocal, cogent, and impelling as to exclude every reasonable doubt from the chancellor's mind.

3. SAME.

In a proceeding to establish a resulting or a constructive trust, evidence examined, and held insufficient to show the existence of a trust.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Bill by Henry Napoleon Bunel and another against J. J. Nester and others. From a decree sustaining a demurrer to the evidence and dismissing the bill, plaintiffs appeal. Affirmed.

Barclay, Shields & Fauntleroy and F. S. Heffernan, for appellants. Delaney & Delaney and E. W. Banister, for respondents.

LAMM, J.

Plaintiffs filed a bill in equity in the Greene circuit court to fasten a trust in their favor on certain real estate in the city of Springfield, Mo. (occupied by defendant Nester as tenant), devised by the will of John O'Day, Sr., to certain other defendants, viz., Sue I. Baldwin O'Day, his widow, and his minor children, Catherine, John Baldwin, and Thomas K. O'Day, alleging that the other defendants claim some interest; the real estate to be impressed with the trust being described as follows: "A part of lot ten, block two, original plat of Springfield, Missouri, commencing at the southeast corner of said lot ten; thence north on west side of Boonville street twenty-two feet, west 117½ feet; thence south 22 feet, to north line of Olive street, east along north line of said Olive street, to Boonville street, the place of beginning —known as the `Mint Saloon Building.'" At hearing nisi, plaintiffs' evidence being in, defendants demurred. Their demurrer was sustained, and plaintiffs appeal.

A student of the law (Mr. Moore) in Law Notes for March, 1907, p. 225, has written with felicity and judgment on Improbabilities; his data gathered by picking and choosing from the dicta of judges. He points out that Cadwalader, J., in Snyder v. Insurance Co., 22 Fed. Cas. 741 (No. 13,154), says: "The most improbable things are sometimes true, and the most probable things sometimes don't happen." And that Sawyer, J., in Shepard v. Railroad, 65 Atl. 20, 101 Me. 591, says: "It is true, in human experience, that almost all things are possible." It is Byron (was it not?) who philosophizes thus: "Truth is always strange, stranger than fiction"— which is but a paraphrase on the chimney-corner adage that "truth is stranger than fiction." The French have a saying running in this wise: `It is always the impossible that happens"—shaded off in everyday use by variation into: "The unexpected always happens." The miserable story of this case may bear such foreword, inasmuch as its dark incidents lie well within the borders of an evil wonderland. While the homespun names of some of the actors have a tang of cabin and native soil, other names carry the memory of the scholar back to the guillotine, the Reign of Terror, and to the spell of the traditions of the first Napoleon; the threads of that story stretching from France to the pine woods of northern Arkansas. The case is this:

Damas Napoleon Bunel, once (as we infer) a resident of the United States, died in France a citizen of that republic on December 31, 1887, intestate, leaving two children and an immense estate, partly in France and partly in the hands of the New York Life Insurance & Trust Company, as trustee, in the city of New York. It seems that 14 years prior to his death, and again in 1876, he executed to said trust company certain instruments placing in its hands a large amount of property in trust (said to be of a value of $500,000). The trustee had power to collect and receive the income and dividends of the trust estate, and, during the life of Damas Napoleon Bunel, apply the same to his use. On his dying, the trust estate was to be divided into two equal parts, and administered as follows: One part to be kept invested and the income and profits thereof paid over to the daughter of Damas Napoleon Bunel, Marie Antoinette Alker. She dying, her moiety was to be turned over to her children "per stirpes, share and share alike." The other moiety was to be kept invested, and the income and profits thereof applied to the use of the son of Damas Napoleon Bunel, to wit, Charles Emile Bunel. Upon the death of Charles Emile, said trustee was to pay over and transfer this moiety to the child or children of him, the said Charles Emile, "per stirpes, share and share alike."

Marie Antoinette Alker and her husband, Napoleon A. Alker, resided in France. What ill wind blew Charles Emile Bunel far from home and kindred into the hill country of northern Arkansas we know not. But in 1872 he was there, apparently living in penury and want, and there married one Nancy J. Petty on the 20th day of June of that year; the record showing that thereafter "the said Charles Emile Bunel and his wife, Nancy, lived in obscurity and indigence in different places in Arkansas and Missouri." In 1878 a son was born to Charles Emile Bunel and Nancy, his wife; the child being named Henry Napoleon Bunel, and he is one of the plaintiffs in this case. To poverty and obscurity was soon added the pinching shoe of marital infelicity, and Nancy tired of and left the bed and board of Charles Emile. Later this couple drifted into Ozark county, Mo., and there on April 28, 1884, Charles Emile brought suit against his spouse for divorce, alleging the following grounds: "That for more than six years last past, defendant has willfully and without just cause abandoned the bed of plaintiff, and refused to cohabit with plaintiff, as his wife; that defendant, unmindful of the duties of a faithful wife, and the affection of plaintiff for her, on or about the ____ day of January, 1884, committed adultery with a man to plaintiff unknown; that the defendant is now pregnant by said person; that plaintiff has not had knowledge of defendant's person for about six years; that defendant has at divers times and places committed adultery with other men whose names and which times and places of said acts of adultery are unknown to plaintiff." On personal service, on the 9th day of June, 1884, Nancy appeared and answered, admitting her marriage, but averring herself chaste. At a trial on the same day, the court heard the proofs, found the allegations of the petition true, and granted a divorce to Charles Emile Bunel. Four months thereafter a child was born to Nancy, a girl, who was named Mary, and who figures in this record as "Mollie Earles," "Mary Earles," "Marie Bunel," "Mary Earles Kee," "Mary Bunel Earles Kee," and as "Mary Earles McKee." It seems that one Alfred Earles resided with Charles Emile and Nancy Bunel before their separation, and continued to live at Nancy's habitation thereafter, and in 1887 this twain were married.

From data before us it would seem that, in spite of the untoward facts just laid bare, at least from January 1, 1888, to January 1, 1894, Nancy Earles was a pensioner on the Bunel estate in France to the amount of $500 per annum. Charles Emile Bunel died on the 28th day of December, 1886, and in one year thereafter Damas Napoleon Bunel died. It seems on the death of the latter that ancillary administration was taken out in the city of New York by Frederic R. Coudert, Charles Coudert, and Paul Fuller on his estate there situate; that in the spring of 1887 Marie Antoinette Alker and two of her sons came to southern Missouri, found Henry Napoleon Bunel, and took him, then a child of nine years, to France, where, barring subsequent visits to this country, he has ever since resided as a citizen. In the republic of France one Napoleon Alker, a son of Marie Antoinette, was appointed guardian and curator of Henry Napoleon Bunel, caring for and educated him until his majority, and, having had charge of that portion of his grandfather's estate belonging to him in France, turned over to him $140,000 of his inheritance. Presently Napoleon Alker, by virtue of his French curatorship, applied to the New York Life Insurance & Trust Company for the moiety of the estate held in trust for his ward's father, Charles Emile Bunel. Thereupon said trust company declined to pay over to such curator the whole of said moiety; but, holding a trust estate to be paid over to the "child or children" of Charles Emile Bunel, it demanded proof of Henry Napoleon Bunel's sole heirship. Thereupon a suit was instituted by the trustee in the Supreme Court of the city of New York, having for its object the determination of that matter. The defendants in this suit were the aforesaid ancillary administrators, Marie Antoinette Alker, Henry Napoleon Bunel, and Mary Earles; the latter being impleaded as "Mary Earles," but pleading as "Marie Bunel." As we understand it, due service was had in that case. Henry Napoleon Bunel was represented by a guardian ad litem, and we infer Mary Earles, or Marie Bunel, was also so represented; the question at issue being the legitimacy of Mary. Was she the daughter of Charles Emile Bunel, and therefore entitled to inherit with Henry Napoleon? Or was she born out of wedlock, the child of Nancy Bunel and the said Henry Earles, and therefore only the uterine sister of Henry Napoleon?

Proofs were taken, and, following them, a judgment entered in the Supreme Court of the city of New York finding the girl, Mary, a legitimate child and the full sister of Henry Napoleon, and she was decreed coheir with him in the estate of...