Aull v. St. Louis Trust Co.

• Decision Date: 07 March 1899
• Parties: AULL et al. v. ST. LOUIS TRUST CO. et al.
• Court: Missouri Supreme Court

50 S.W. 289

149 Mo. 1

AULL et al. v. ST. LOUIS TRUST CO. et al.

Supreme Court of Missouri, Division No. 2.

March 7, 1899.

PROBATE COURTS — ORDER OF DISTRIBUTION — MODIFICATION DURING TERM — PARTITION AND PERSONALTY — EQUITY.

1. A probate court may modify an order of distribution at any time during the term at which it was rendered.

2. A sitting of the probate court to which an adjournment is made, occurring during the same period fixed by Rev. St. 1889, § 3401, for the holding of a term, as the sitting adjourned from, is a continuance of the term, so that a judgment rendered at the latter sitting may be modified at the former.

3. An order of distribution rendered by a probate court may be modified during the term at which it was rendered, though property had been distributed in pursuance of the order, and the distributees had given receipts reciting that the property had been delivered in compliance with the order, and was received in satisfaction thereof.

4. The probate court may modify a report of commissioners appointed under Rev. St. 1889, §§ 241-243, to partition personalty among distributees.

5. The fact that funds of distributees were paid under an order of the probate court to their creditor, and that he loaned money on the strength of the order, does not preclude a modification thereof, during the same term at which it was rendered, requiring him to pay back a part of the money received, where the persons entitled thereto were guilty of no misconduct inducing the making of the loan.

6. Where a probate court has modified an order of distribution, and a distributee refuses to return property received under the original order, the aid of equity may be invoked to enforce the modified order.

Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Suit by James Aull and others against the St. Louis Trust Company and others to recover the amount of bonds which defendants had received, under an order of distribution in the probate court, in excess of what they ought to have received. Decree for plaintiffs, and the trust company appeals. Affirmed.

On the 18th day of August, 1892, Maria Pomeroy, a resident of Lafayette county, died intestate, leaving a large amount of real and personal property in that county, which descended to her heirs. A part of this property consisted of United States bonds of the value of $69,400, and a certain amount of money, which were in the hands of William Morrison and Robert Taubman, administrators of her estate. Maria Pomeroy left surviving her no father, mother, brother, or sister, but she left six nephews and nieces, and the children of four other nephews and nieces, who were dead, as her only heirs at law. The plaintiffs James, Robert, Wilson, and Mary F. Aull, Maria P. Collier, and Elizabeth McFadden are the nephews and nieces of Maria Pomeroy, and the other plaintiffs are her grandnephews and grandnieces. The defendants Harry H., Lawrence W., and Frank P. Day, and Anna C. Truesdale, who are represented by the St. Louis Trust Company, are the children of Maria Pomeroy's deceased niece Lavinia C. Day, and are, therefore, her grandnephews and grandniece. The defendants children of Lavinia Day at various times borrowed money from the St. Louis Trust Company, making various conveyances to secure the payment thereof, by the mortgage, pledge, or assignment of their interest in the estate, which up to that time was undivided. By these instruments the trust company was given power to collect and receive the respective interests of the borrowers. The interest of Harry H. Day was, subject to the lien of the trust company, placed in its control, as trustee for his wife and minor children, all of whom are parties to this suit. On November 24, 1893, the heirs filed a petition in the probate court of said county, stating that the United States 4 per cent. registered bonds belonging to the estate amounting to the face value of $69,400, and then worth $1.13, were not needed to pay debts, and asked that they be divided in kind. At the hearing of this petition all the heirs were present or represented by attorney, and the St. Louis Trust Company, by its attorney, and joined in the petition; whereupon partition was ordered by the court, and commissioners appointed to divide the bonds in kind, equalizing the shares of the distributees by the application of money in the hands of the administrators. By consent of all parties interested, the commissioners divided the bonds among the heirs, giving to each his or her distributive share, together with such sum in cash as was necessary to accomplish that end. All of the distributees received their respective shares upon this basis of calculation and partition, and receipted for the same to Robert Taubman, he then being the only surviving administrator. The trust company, having authority so to do, took part in these proceedings, and, in behalf of the Day heirs or distributees, whose interests were pledged to it, received from the administrator United States bonds to the face value of $24,000. The receipts, upon their face, express to be in satisfaction of the order. By this order the descendants of each one of the three deceased brothers of Maria Pomeroy took, together, the share which such deceased brother would have taken, if alive, and added $2,938 in cash, to make the shares equal upon that basis. By this order of distribution, the grandnephews and grandniece represented by the trust company were given $16,800 in bonds (of the value of $18,984) more than they were entitled to. On the following day, December 7, 1893, to which day the probate court was adjourned, the commissioners made their report, dividing the property according to the interests of the parties as fixed by the order of the court, which was approved on the same day, and a division of the property ordered in accordance with the report. The court was thereafter adjourned to the 2d day of January, 1894, when all the heirs, except those represented by the trust company, filed a motion to modify and amend the record, and the order by which the interests of each of the several parties in and to the personal property of the estate had been ascertained by the court, upon the ground that the order of distribution was made upon the wrong theory, and was erroneous, and should be made to conform to the rights of the parties; for the reason that, by the statute of descent and distribution, the nephews and nieces of said Maria Pomeroy inherit per capita, and the descendants of the nephews and nieces inherit per stirpes, and not as ordered by the court. The court was then adjourned to January 19, 1894, for the consideration of said motion. Due notice of the motion to modify and amend the record, and the order ascertaining and adjudging the interests of the parties and the order of distribution, having been given to the administrator and to the trust company, both of them appeared, and filed objections to said motion, on the 19th day of January, 1894, the day to which the court was adjourned. The probate court, after a full hearing, did, on the 24th day of January, 1894, during the same term of court at which the order of distribution was made, enter a decree vacating and setting aside so much of its former order made at the same term, and on the 6th day of December, 1893, as declares and adjudges the interests of the heirs of said Maria Pomeroy, deceased, in her said estate, and proceeded to find the interests of the heirs and distributees of the estate in accordance with law; and by its amended decree found that the St. Louis Trust Company, as trustee and attorney in fact for Lawrence W. Day, Frank P. Day, Harry H. Day, and Anna C. Truesdale, received 1/3 of the personal estate of deceased ordered to be distributed, being 1/12 for each of said named distributees, amounting in the aggregate to $24,000 in United States bonds at their par value (cash value, $27,120), when, in fact and under the law, the distributees represented by the St. Louis Trust Company were entitled to 1/40 each of said amount ordered to be distributed, or, in the aggregate, 1/10, amounting to $7,200 of said bonds at their par value (cash value of $8,136), and that the St. Louis Trust Company received, as such trustee and attorney in fact, in said United States bonds, $16,800 (cash value of $18,984) more than it ought to have received, or was entitled to receive, under the law, as the shares of Lawrence W. Day, Frank P. Day, Harry H. Day, and Anna C. Truesdale, and that the St. Louis Trust Company was still in the possession of said bonds; and said court ordered that the said St. Louis Trust Company should refund the amount of $16,800 in bonds (being of the value of $18,984) to these plaintiffs, in the amounts and proportion to which each was entitled, as set forth in the amended decree, or, in lieu thereof, should pay the money value thereof, therein stated, as owelty. From this judgment of the probate court no appeal was taken by the St. Louis Trust Company or by the administrator. Demand was made by the plaintiffs upon the St. Louis Trust Company, on the 16th day of March, 1894, and on the 7th day of April, 1894, for their interest in the bonds received by the St. Louis Trust Company in excess of what it was lawfully entitled to receive, which was refused. Thereupon the present suit was instituted for the purpose of recovering the amount received by the St. Louis Trust Company in excess of what it was entitled to receive, and also to prevent said company from seizing upon a tenth of the $33,000 still remaining in the hands of the administrator, as shown by his report, which, it is alleged in the petition, and admitted by their answer, they are endeavoring to get, in addition to the $18,984 which they have already received in excess of what was due them. The petition sets forth in full all of the orders, motions, adjournments, and judgments referred to in the foregoing statement and all of the facts...