Barr v. Cubbage

• Decision Date: 31 March 1873
• Citation: 52 Mo. 404
• Parties: WM. BARR, et al., Appellants, v. ELIZA R. CUBBAGE, et al. Respondents.
• Court: Missouri Supreme Court

52 Mo. 404

WM. BARR, et al., Appellants,

v.ELIZA R. CUBBAGE, et al. Respondents.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Hendershott & Chandler, for Appellants.

The plaintiffs standing in the shoes of the residuary legatee as to the partnership estate, are entitled to enforce due performance of all trusts under the will, necessary for the preservation of their legacy. (Story's Eq. Jur. (Redf. Ed.) § 424 citing numerous cases.)

“Courts of Equity have an original, inherent and independent jurisdiction to relieve against every species of fraud, not being fraud of a penal nature.” (Kerr on Fraud and Mistake, 43.)

The plaintiffs having been deceived and defrauded by the wife, are in equity entitled to have the legal powers of the administrator so employed, as to restore them as nearly as possible to the same position they occupied before the fraud was practiced upon them. (Kerr on F. & M., 47-8.)

Dryden & Dryden and M. Kinealy, for Respondents.

Where by statute the executor is required to file a bond in order to qualify, if the person named as executor fails to give bond he will have no rights whatever as such. (Carter's Exrs vs. Carter, 10 B. Monroe, 327; Mitchell vs. Rice, 6 J. J. Marshall, 627; Robertson vs. Gaines, 2 Humphreys, 381; Uldrick vs. Simpson, 1 S. C., 283; Munroe vs. James, IV. Muhnferd, 201; Perry on Trusts, 244.)

The plaintiff cannot compel either the minors or the administrator to resort to a suit against Mrs. Cubbage, or to the property in her possession. If Mrs. Cubbage has any property, let them resort to their plain legal remedy and recover back their ten thousand dollars.

Mrs. Cubbage cannot be deemed to have received the money as a trustee, for the purpose of making the investment directed by the sixth clause of the will, because that was an investment to be made by the executors as such. (Hall vs. Mackay, 9 Pick., 395; Perkins vs. Moore, 16 Ala., 9.)

VORIES, Judge, delivered the opinion of the court.

The plaintiffs in their petition charge the following facts as ground of relief in equity:

That on the 19th day of March, 1866, plaintiffs and said Edward J. Cubbage, deceased, entered into a co-partnership as dry goods merchants, to commence on the 1st day of January, 1866, to continue for two years; that amongst other things it was provided by their articles or agreement of partnership, that in case of the death of one or more of the partners before the expiration of the term of said partnership, that said partnership should not thereby be dissolved, but should continue and be carried on by the surviving partners during the said term, and that in such case the representatives in interest of such deceased partner, should not have or possess any power or authority over or interfere with the business, but the successors should be entitled to receive from the firm at the rate of not exceeding eight thousand dollars per annum.

That after said partnership business had been carried on for some time, to-wit: On the 3rd day of April, 1866, the said Edward J. Cubbage died; that before his death he made his last will and testament, by which he disposed of his property and estate as follows:

“ First. I do hereby order and direct my executors hereinafter named and appointed, to pay all my just debts and funeral expenses, so soon as the same can be conveniently done after my death.”

“ Second. I give unto my wife Eliza R. during her lifetime, the sole and exclusive use, benefit and behoof of all and singular, the real estate, of which I shall die the owner, wheresoever the same may be situated.”

“ Third. I give, devise and bequeath unto my said wife Eliza R., absolutely for her sole, exclusive use, benefit, and advantage, all and singular, my personal estate, of whatever kind and nature the same may be, or wheresoever the same may be situated, except as hereinafter mentioned and directed.”

“ Fourth. Upon the death of my said wife Eliza R., and as soon thereafter as the same can be conveniently done, it is my will, and I do hereby order and direct the surviving executor of this, my last will and testament, to sell and dispose of all the real estate of which I shall die the owner, wheresoever the same may be situated, to the best advantage for cash, and the proceeds arising from such sale or sales of my said real estate, after deducting therefrom all just and proper costs and expenses, it is my will, and I do hereby order and direct my said executor immediately thereafter to pay my two children, Catherine and James R., the same, to be divided between them, share and share alike.”

“ Fifth. It is my will, and I do hereby order and direct my executors, in last clause named, upon the sale and sales (if any) of my real estate being completed, to make, execute and deliver, or cause to be made, executed and delivered, good and sufficient conveyance and conveyances (if required) in the law to the purchaser or purchasers, at said sale or sales.”

“ Sixth. It is my will, and I do hereby order and direct my executors hereinafter named, immediately after my death to safely and securely invest the sum of ten thousand dollars to and for the following uses and purposes exclusively: They shall appropriate and expend the entire income arising therefrom for the purpose of educating, clothing and maintaining my said two children, Catherine and James R., until they shall have respectively arrived at the age of twenty-one years, and when they shall have respectively arrived at the age of twenty-one years, then it is my will, and I do hereby order and direct my said executors to pay to each of them, upon his or her arrival at said age, the sum of five thousand dollars, being a part or portion of said sum of ten thousand dollars, hereinbefore ordered to be safely and securely invested.”

“ Seventh. I do hereby nominate and appoint my wife Eliza R., executrix, and my friend James Meeghan, executor of this, my last will and testament.”

That the said will was probated, but that neither the executor or executrix therein named, ever gave bond or qualified as such. That the said Eliza R., contriving and fraudulently intending to defraud the plaintiffs, assumed to act as such executrix, took upon herself the administration of said estate under the will, taking possession of the assets and paying the debts and liabilities of the same, and falsely represented to plaintiffs, that she had duly qualified under said will, and that she was as executrix entitled to receive and receipt for the interest of deceased in said firm, and that the plaintiffs believing said false representations, from time to time between the 3rd day of April 1866, and December, 1867, paid her sums of money on account of the interest of said deceased in said partnership, amounting in the aggregate to more than thirty-six thousand dollars.

That plaintiffs continued to carry on the business of said firm during the term of said partnership. That during the month of December, 1867, the plaintiffs accounted with said Eliza R. for the interest of deceased in said firm, and purchased of her said interest remaining after the payment of the sum before stated, and the said agreement of purchase was in writing, by which she attempted to convey to plaintiffs all of the right, title and interest, which the said Edward J. Cubbage at the time of his death had in said firm, and all the interest which she had or was entitled to by virtue of said will, in and to the property or effects of said firm of every description whatever; that plaintiffs paid said Eliza, forty thousand dollars for said interest in said firm, and bound themselves to, and did pay all of the debts and liabilities of said firm; that plaintiffs never had learned until long after they had purchased the interests of said deceased, and of said Eliza in said firm, and paid therefor, that said Eliza R. had not duly qualified as executrix under the will of said deceased, she having fraudulently concealed that fact from plaintiffs, and having taken possession of all the property of said estate, and paid all of the individual debts of said estate, and she having assumed to act and really acted in all respects, as if she had so qualified, and was the legal acting executrix of said estate.

That the said Edward J. Cubbage at the time of his death, was the owner in fee of the following real estate in the County of St. Louis, and State of Missouri, viz.: Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12, in Block (D) of the town of Kirk wood, having an aggregate front of six hundred feet on the north line of Madison Avenue, and running back to an alley dividing said block (D) from the Pacific railroad depot grounds. He was also the owner of a leasehold interest in a house and lot of ground on or near Sixteenth street in the City of St. Louis, which plaintiffs are informed and believe that said Eliza R. has caused to be renewed to herself since his death, by virtue of some provision in said lease. The property of which said deceased died the owner, other than his interest in said firm and said real estate, was inconsiderable, consisting of household furniture, horses and carriages, &c., much of which remains in possession of said defendant, Eliza.

That since the death of said Edward, the said Eliza has, with the money paid her by the plaintiffs, erected large and valuable improvements upon said twelve lots in the town of Kirkwood, including a building erected on said lots nine, ten, eleven and twelve, known as the Kirkwood Hotel, and has purchased and erected valuable...