Anth v. Lehman
| Citation | 144 S.W.2d 190 |
| Decision Date | 08 November 1940 |
| Docket Number | No. 25658.,25658. |
| Parties | ANTH v. LEHMAN et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; John J. Wolfe, Judge.
"Not to be reported in State Reports."
Action by Arthur J. Anth against Walter Eugene Lehman, and John Henry Lehman and another, as trustees under the terms of the last will and testament of George Lehman, deceased, to recover from Walter Eugene Lehman the sum of $686.51, and to have a lien therefor declared upon the interest of Walter Eugene Lehman in certain realty in the hands of the trustees. From a judgment denying the lien, the plaintiff appeals.
Affirmed.
J. C. Hoester, Jr., of Clayton, for appellant.
Henry Higginbotham, of Clayton, for respondent.
This action was instituted by appellant, as plaintiff, to recover from defendant Walter Eugene Lehman the sum of $686.51, and to have a lien therefor declared upon the interest of said defendant in certain real estate in the hands of defendants John Henry Lehman and Annabelle Lehman as trustees under the terms of the will of George Lehman, deceased.
A trial before the court resulted in a judgment in favor of plaintiff and against defendant Walter Eugene Lehman in the sum of $686.51, the amount sued for, but the court found the issues against plaintiff and in favor of the defendant trustees denying the lien prayed for by plaintiff and dismissing plaintiff's petition as to said trustees. Plaintiff duly appealed to this court.
Plaintiff's petition alleged that he had sold to defendant Walter Eugene Lehman groceries, meats, canned goods and general merchandise, and that thereafter, about June 1, 1935, an account was duly stated between plaintiff and said defendant wherein it was agreed between them that said defendant owed plaintiff the sum of $686.51, which defendant agreed to pay; that no part thereof had been paid.
Plaintiff further alleged in his petition that John Henry Lehman and Annabelle Lehman were and are trustees under the last will and testament of George Lehman, deceased; that George Lehman had died testate in St. Louis County, Missouri, about December 14, 1933; that the estate of George Lehman had been fully administered in the Probate Court in St. Louis County, Missouri; that said trustees had taken over the management, control and handling of certain real estate fully described in said last will of George Lehman, deceased; that defendant Walter Eugene Lehman was and is wholly insolvent that his sole asset consisted of the interest created by said George Lehman, deceased, in said real estate held by said trustees; that said defendant trustees were then attempting to sell and dispose of said real estate; that, if the power to sell or dispose of said real estate described in the last will of said George Lehman, deceased, were to be exercised and the funds turned over to defendant Walter Eugene Lehman, plaintiff would lose the value of the goods, wares and merchandise advanced by him to said defendant.
The petition prayed judgment for plaintiff against defendant Walter Eugene Lehman for $686.51; that a lien be declared to exist upon the interest of said Walter Eugene Lehman in the real estate then in the hands of said defendant trustees under the terms of the last will of George Lehman, deceased; that defendant trustees be directed by the court to hold any funds realized or accruing from the sale of said real estate in their hands pending the disposition of this suit, or that said defendants be restrained and enjoined from disposing or attempting to dispose of, sell, encumber, mortgage or transfer any portion of said real estate until directed by the orders or judgment of the court.
Defendant Walter Eugene Lehman filed a separate demurrer to plaintiff's petition. Defendant trustees John Henry Lehman and Annabelle Lehman also filed a demurrer to the petition. The demurrers were all overruled by the court, whereupon defendant Walter Eugene Lehman filed a separate answer containing a general denial. The defendant trustees also filed an answer containing a general denial.
Inasmuch as defendant Walter Eugene Lehman took no appeal from the judgment against him in favor of plaintiff, it is sufficient to say that there was ample evidence to support the finding and judgment of the court in favor of plaintiff and against said defendant for the amount mentioned.
Plaintiff's appeal against the finding and judgment of the court denying him the relief which he sought against the defendant trustees under the last will of George Lehman, deceased, is based upon two points: First, that the court erred in refusing to allow him to amend his petition at the trial to set forth allegations of fraud against the defendant trustees and against defendant Walter Eugene Lehman; second, that, since plaintiff had pleaded the insolvency of defendant Walter Eugene Lehman, the court's action in refusing to impress a lien upon the real estate in the hands of the defendant trustees and in dismissing plaintiff's petition as to them was erroneous and against the weight of the evidence. We will take up these points in their order.
Plaintiff's petition joined two causes of action in one count, one an action at law on an account stated and the other an action in the nature of an equitable garnishment against the defendant trustees. The petition alleged the provisions of paragraphs 3 and 4 of Item III of the last will of George Lehman, deceased. Under said paragraph 3, the testator devised to his trustees John Henry Lehman and Annabelle Lehman a lot of land with a dwelling house thereon, numbered 319 West Jefferson Avenue in the City of Kirkwood (which was fully described), in trust, however, upon the uses and trust and for the purposes therein specified. Although the rents from said property were mentioned in the will and constitute a subject of the trust, no relief was prayed for in the petition as to the rents. They were not mentioned in the evidence, and it appears that the parties at the trial treated the matter of rents as not being in the case. Paragraph 3 of Item III of said will provided, among other things:
"As soon as a fair price can be obtained for said land hereinabove in the Paragraph 3 (three) described, my said trustees shall sell said land at private sale for cash and divide into ten equal shares and pay over the entire net purchase price thereof as follows: * * * one-tenth (1/10) part or share thereof to my son Walter Eugene Lehman, but if my said son Walter Eugene Lehman should die before me or before said sale, his said share shall go to and be held and expended by said trustees, for his, Walter Eugene Lehman's, three children, Ruth Ester Lehman, Walter Eugene Lehman, and Marian Emma Lehman, in equal shares for their education, and if any of said respective shares be not so expended for their education, the balance shall be paid and turned over to them, Ruth Ester Lehman, Walter Eugene Lehman, and Marion Emma Lehman, as and when they become of age respectively."
Paragraph 4 of Item III of said will, as pleaded in plaintiff's petition and shown in evidence, is as follows:
In Item IV of the will, being the residuary clause, the testator evidenced his recognition of the trust estate and the trusts created in favor of defendant Walter Eugene Lehman and the three children of said defendant. The evidence shows that George Lehman, the testator, died on December 14, 1933.
Toward the end of the trial, after defendant John Henry Lehman, trustee, had given some testimony, plaintiff asked leave to amend his petition "by interlineation" by dictating to the court stenographer the proposed amendment. The matters sought to be added to the petition by said amendment were in substance that the defendant trustees, knowing that plaintiff had his claim against Walter Eugene Lehman, their cestui que trust, and knowing that any action brought against them and against real estate held by them would bar a sale of the real estate, assured plaintiff, to his detriment, that if he would permit the property to be sold without bringing any action against them, they would see to it that he would be paid the amount due him from defendant Walter Eugene Lehman. The amendment further proposed to add to the petition allegations to the effect that defendant Walter Eugene Lehman knew of this agreement between defendant trustees and plaintiff and fully agreed thereto, but...
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