Austin v. Ennis

• Decision Date: 05 July 1916
• Docket Number: No. 14254.,14254.
• Citation: 187 S.W. 599
• Parties: AUSTIN v. ENNIS, Public Administrator.
• Court: Missouri Court of Appeals

187 S.W. 599

AUSTIN v. ENNIS, Public Administrator.

No. 14254.

St. Louis Court of Appeals. Missouri.

July 5, 1916.

Appeal from Circuit Court, Knox County; Charles D. Stewart, Judge.

"Not to be officially published."

Suit by Charles H. Austin, guardian, against John W. Ennis, public administrator. From a judgment for complainant, respondent appeals. Affirmed.

F. H. McCullough, of Edina, for appellant. O. D. Jones, of Edina, for respondent.

NORTONI, J.

This is an appeal from an order of the court, directing a trustee theretofore appointed to pay over certain funds to the plaintiff's cestuis que trustent.

It appears that as a result of a partition suit in the circuit court of Knox county a fund of $1,500 arose under sale of the land partitioned, and that this fund belonged in equal parts to the three plaintiffs, who were minors, that is, Dewey Austin, Noble Austin, and Frank Austin, and their brother Harry Austin and a half-brother, Matt Lingenfelter. In the final decree entered in the partition suit, the court ordered defendant, John W. Ennis, to hold this fund of $1,500 as trustee for the several parties mentioned until the minors should become 21 years of age, but, by its decree, adjudicated the rights of each of the parties mentioned; that is, it decreed each to be the owner of a one-fifth part of the fund. Subsequently Harry Austin, one of the minors, departed this life. At a subsequent term of the court the three minors, acting through Charles H. Austin, their guardian and curator, filed the petition involved here, praying the court to order the trustee to pay their several portions of the fund over to the curator for their benefit. The trustee, John W. Ennis, was duly served and appeared, but no notice whatever of the proceeding was given to Matt Lingenfelter who owned the title to one-fifth of the fund. On a hearing the court ordered the appellant, the trustee, to pay the several portions of the fund as theretofore adjudicated in the partition suit to the plaintiff as curator of each of the minors, Dewey, Noble, and Frank Austin. At the same time, the court ordered defendant to hold the share of the fund belonging to Harry Austin, deceased, and likewise the share of the fund belonging to Matt Lingenfelter until further order of the court respecting each. Defendant urges on appeal that there was no evidence introduced in aid of the petition, but obviously there is no merit in this. No answer or other pleading to the petition was filed, and though the appellant trustee appeared, he made no effort to contradict any of the averments therein. Under all of the authorities, the petition is clearly...