Abernathy v. Hampe

• Decision Date: 08 November 1932
• Docket Number: No. 21728.,21728.
• Citation: 53 S.W.2d 1090
• Parties: ABERNATHY v. HAMPE.
• Court: Missouri Court of Appeals

53 S.W.2d 1090

ABERNATHY v. HAMPE.

No. 21728.

St. Louis Court of Appeals. Missouri.

November 8, 1932.

Rehearing Denied November 23, 1932.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Action by Pearl Abernathy, doing business as the Abernathy Real Estate Company, against Otto Hampe, administrator of the estate of Gladys Lyle, deceased. Judgment in favor of plaintiff. From an order granting a new trial, plaintiff appeals.

Affirmed and remanded.

John A. Davis and George L. Vaughn, both of St. Louis, for appellant.

George P. Burleigh and W. W. Henderson, both of St. Louis, for respondent.

SUTTON, C.

This is an action to establish a resulting trust in funds in the hands of defendant, as administrator of Gladys Lyle, deceased, amounting to $1,469.

According to the evidence on behalf of plaintiff, he bought a piece of property in the city of St. Louis, known as 4323 Enright avenue, in the year 1923, and some months later bought another piece of property known as 3718 Enright avenue. The title to both these properties was conveyed by deeds to Gladys Lyle, an employee of the plaintiff, who was a dealer in real estate, plaintiff paying the cash consideration required to close the deals, and paying the notes given by Gladys Lyle for the balance of the consideration as they became due. Policies of tornado insurance were issued to Gladys Lyle and made payable to her and the trustees mentioned in the several deeds of trust given on the properties; the premiums on the policies being paid by the plaintiff.

On the 29th day of September, 1927, the properties were damaged by a tornado. Plaintiff notified the insurance companies and carried on negotiations which finally led up to an agreement on the amount to be paid in settlement for the damages suffered to each of the properties. The negotiations covered a period of several months before an agreement was reached. On November 10, 1927, while the negotiations were pending and before a settlement had been reached, Gladys Lyle, upon leaving the employ of the plaintiff, and at the plaintiff's direction, deeded the properties to Rosa Shaw, another employee of the plaintiff. When the adjustment with the insurance companies was finally concluded, the checks for the insurance were made payable to Gladys Lyle and the several trustees in the deeds of trust and forwarded to the trustees, but, before the checks reached the trustees, Gladys Lyle died. Her death occurred on February 20, 1928, and the defendant, acting in his capacity as public administrator, took charge of her estate on February 23, 1928. Two of the insurance checks, amounting to $857.18, were turned over to defendant by the trustees, copayees therein, and another for $611.82 was turned over to the plaintiff by the trustee, who was copayee therein, which check the plaintiff afterwards turned over to the defendant. Defendant received the proceeds of these three checks, amounting to $1,469, and inventoried and accounted for the same as assets of the estate of Gladys Lyle, deceased.

The funds thus derived from the insurance policies the plaintiff alleges are held by the defendant in trust for plaintiff, and he seeks to recover the same as trust funds in this suit.

Plaintiff's evidence tends to show that Gladys Lyle was a mere straw party taking and holding the title to the properties in question for and on behalf of the plaintiff.

Upon the trial the court gave judgment in favor of plaintiff, awarding to plaintiff the proceeds of the insurance policies, amounting to $1,469, together with interest and costs. Thereupon defendant filed his motion for a new trial. The court sustained the motion, and granted defendant a new trial. From the order granting a new trial, plaintiff appeals.

A number of demands of general creditors against the estate of Gladys Lyle were allowed by the probate court. The funds derived from the insurance policies constituted the only assets of the estate. The checks for the insurance appear to have been issued in the first part of February, 1928. However, the check which was delivered to plaintiff was not turned over to the defendant until February 23, 1929. The checks were indorsed by the trustees, but, of course, they could not be cashed without the indorsement of the defendant as administrator. The delay on the part of plaintiff in turning over the check to defendant seems to be accounted for by the fact that he claimed that the insurance money belonged to him. It appears that he told the defendant that the money was his and desired the defendant to pay over to him the insurance money which he had received and also to indorse the check which was delivered to plaintiff so that he could get the money on it. The defendant declined to do this, saying that he could not pay out the assets of the estate without an order of court.

The check held by plaintiff was finally turned over to defendant by plaintiff's attorney on February 23, 1929. On February 21, 1929, plaintiff, through his attorney, gave notice to defendant that he would present for allowance at the March term of the probate court next his claim for $1,469. The claim was filed in the probate court, and came on for hearing on March 14, 1929. At the hearing, defendant's counsel objected to the introduction of testimony on the ground that the court was without jurisdiction to hear and determine the claim. The court sustained the objection, and on April 18, 1929, dismissed the claim.

The claim filed, to which is attached the statutory affidavit, is for $1,469, for "tornado insurance damages on property owned by claimant and held in the name of the deceased as trustee for claimant."

The present action was commenced on May 15, 1929. In February, 1929, defendant gave notice of his intention to make a final settlement of the estate of Gladys Lyle, at the March term next of the probate court. The first publication was made February 1st, and the last on February 23d. Final settlement was duly filed, and was approved by the court on June 15th, at the June term, 1929. However, the defendant was not discharged as administrator presumably on account of the pendency of the present suit. The first settlement was filed in due time, and was approved by the court. After the plaintiff's claim, filed in the probate court, was dismissed, and the time had expired for perfecting an appeal from the judgment of the probate court dismissing his claim, and after the date had expired for the allowance of further claims, defendant paid the claims that had been allowed against the estate, leaving only a negligible balance in his hands. This was done before the plaintiff filed the present suit.

The order granting a new trial recites that a new trial is granted on the ground "that the probate court's dismissal of the claim was an adjudication, which unappealed from, is binding in this case." We do not think the order may be justified on this ground. Plaintiff had a right to elect to treat Gladys Lyle as a trustee or simply as a debtor. By electing to treat her as a debtor, the indebtedness, although growing out of a trust relationship, became a money demand against her estate over which the probate court had jurisdiction. Winn v. Riley, 151 Mo. 61, loc. cit. 67, 52 S. W. 27, 74 Am. St. Rep. 517. But plaintiff's case, though it was, as filed in the probate court, in the form of an ordinary demand of a general creditor, was evidently filed and prosecuted by plaintiff on the theory that he was entitled to have the probate court award him the entire insurance fund in the hands of the defendant, free from the claims of general creditors. In other words, plaintiff's theory was that he was entitled to follow the fund as a trust fund into the hands of the administrator and to have the probate court order the fund paid over to him. Of course, the probate court had no jurisdiction to do...