Benz v. Powell

• Citation: 93 S.W.2d 877,338 Mo. 1032
• Decision Date: 23 April 1936
• Docket Number: 33667
• Parties: Susie M. Benz and George S. Benz, Appellants, v. David H. Powell, Executor of the Estate of William H. Powell, Jane Coleman and Fred A. Benz, Trustee for Susie M. Benz and George S. Benz
• Court: United States State Supreme Court of Missouri

93 S.W.2d 877

338 Mo. 1032

Susie M. Benz and George S. Benz, Appellants, v. David H. Powell, Executor of the Estate of William H. Powell, Jane Coleman and Fred A. Benz, Trustee for Susie M. Benz and George S. Benz

No. 33667

Supreme Court of Missouri

April 23, 1936

Rehearing Denied April 23, 1936.

Appeal from Pettis Circuit Court; Hon. A. W. Walker Special Judge.

Affirmed.

H K. Bente, Palmer & Palmer and Fred A. Benz for appellants.

(1) Respondent's answer consists of a general denial in each count, followed by a special plea of confession and avoidance, or of affirmative defense which under Sections 776 and 800, Revised Statutes 1929, is inconsistent and tenders no issue herein, at all, which thus entitles appellants to judgment as prayed. Cowell v. Ind. Co., 326 Mo. 1112; James v. Chand. Co., 30 S.W.2d 118; Ambruster v. Ambruster, 31 S.W.2d 28; McKee v. Cottle, 6 Mo.App. 417. Because the truth of one defense necessarily disproves the other: Finley v. Williams, 29 S.W.2d 103; Bell v. Campbell, 123 Mo. 1: Coble v. McDaniel, 33 Mo. 365. (2) Respondent may not invoke the Statute of Limitations, because William H. Powell not finally being discharged as executor, his settlements do not become final judgments, and may be corrected at any time. State ex rel. Noll v. Noll, 189 S.W. 582; 24 C. J. 1027. (a) Nor will it avail him as trustee, because the cestui que trust had no knowledge of his malfeasance, until after trustee's death in 1931, Clay v. Walker, 6 S. S. (2d) 961, and trustee did not repudiate said trust. Smith v. Ricords, 52 Mo. 581; Murry v. King, 153 Mo.App. 718; Mann v. Bank, 20 S.W.2d 502; Koppel v. Rowland, 319 Mo. 607. (b) Nor is there any competent evidence herein showing that there is another cause between the same parties, for the same subject matter, now pending in another court. State ex rel. v. Brown, 31 S.W.2d 215. (3) The court further erred in refusing plaintiff's claims against defendants, as a preference in each count, and in holding this to be an action to trace these specific trust funds, and not an action to compel respondent to account therefor, because: (a) Under Section 801, Revised Statutes 1929, in construing a plea, stating the facts is all that is required, and the law then gives it the proper name and effect for the most liberal and favorable intendment, in substance rather than form. Poplin v. Brown, 200 Mo.App. 267; Sessinghaus M. Co. v. Hanebrink, 247 Mo. 212; Rosen v. G. & B. Co., 5 S.W.2d 649. (b) Respondent having filed his answer, introduced his accounting evidence, after his demurrer was overruled, and cause tried on merits, no objection having been interposed by respondent, he thus waived all defects (if there be any), and this cause should now be reviewed de novo. Wood v. Ins. Co., 75 S.W.2d 412; Bank v. Graham, 76 S.W.2d 376.

Lamm & Barnett for respondents.

(1) There was no error in permitting accountant Donnelly to testify concerning the general balance or result of his examination. (a) Where the evidence is the result of voluminous facts, or of the inspection of many books and papers, the examination of which cannot conveniently take place in court, or where a witness (particularly an accountant) has inspected the accounts, though not allowed to give evidence of their particular contents, he may testify concerning the general balance or result of such examination, and such testimony is not hearsay. Masonic Mut. Soc. v. Lackland, 97 Mo. 137; State v. Findley, 101 Mo. 217; Citizens Trust Co. v. Ward, 190 S.W. 364; State v. Matkins, 34 S.W.2d 1; State ex rel. v. Md. Cas. Co., 66 S.W.2d 537. (2) "The right to follow trust property in equity being based on the theory that a right of property still exists in the cestui que trust, the equitable right of recovery or reclamation generally does not exist, or no trust or lien can be enforced, if the trust property cannot be identified, or traced into some fund or thing, which is sought to be charged, and into which the original trust property has gone in some form or other." 65 C. J., p. 965, and Mo. cases cited under Notes 27, 28; 65 C. J., pp. 969-970; 39 Cyc. pp. 529, 541, 547; L. R. A. 1916C, pp. 21-88; Apple v. Hert, 55 A. L. R. 1271. (a) There is not only no evidence whatever that W. H. Powell diverted or misappropriated any part of the Shively estate assets, but also there is no evidence that (assuming W. H. Powell had misappropriated) any part of said trust estate ever came into or swelled the assets of the estate coming into the hands of David H. Powell, executor. In the absence of some showing that some part of the trust estate in some form came into and swelled the assets of the estate now in the hands of David H. Powell, executor, plaintiffs' case must fail. Bircher v. Walther, 163 Mo. 461; Pearson v. Haydel, 90 Mo.App. 253; Beck v. Krembs & Monti, 201 Mo.App. 697, 213 S.W. 487; Deere Plow Co. v. McDavid, 137 F. 802; Meystedt v. Grace, 86 Mo.App. 178; Horigan Realty Co. v. Flynn, 213 Mo.App. 591, 273 S.W. 772; Paul v. Draper, 158 Mo. 197; Raymuth Real Est. Co. v. Robinson, 199 Mo.App. 515, 204 S.W. 376; Apple v. Hert, 122 Okla. 153, 252 P. 823, 55 A. L. R. 1271. (b) On any theory advanced by appellants, they cannot procure preferred claims against the William H. Powell estate or charge the assets of said estate in the hands of its executor (on the ground that assets diverted by William H. Powell went to increase his own assets during Powell's lifetime) without showing that the diverted assets passed into the possession of William H. Powell's executor, David H. Powell, in some form. Raymuth Real Est. Co. v. Robinson, 199 Mo.App. 515, 204 S.W. 376; Beck v. Krembs, 201 Mo.App. 697, 213 S.W. 487; Horigan Realty Co. v. Flynn, 213 Mo.App. 591, 273 S.W. 772; Apple v. Hert, 122 Okla. 153, 252 P. 823, 55 A. L. R. 1271.

OPINION

Tipton, P. J.

This is an appeal from the Circuit Court of Pettis County, Missouri. The regular judge was disqualified, and the cause was tried before the Honorable A. W. Walker, judge of the Ninth Judicial Circuit of this State, who found the issues in favor of the respondents.

Appellants contend that this is an action for an accounting, while respondents contend it is an action to follow trust funds. From an examination of the pleadings and the trial theory, we have concluded that the contention of the respondents is correct. The petition is in five counts and each count is the same, with the exception that a different fund or property is sought to be recovered.

Count one of the petition alleges that Maggie Shively died February 5, 1920, and by her will she devised one-half of her property to her daughter, Jane Coleman, and the other one-half of her property to William H. Powell, as trustee for her other daughter, Susie M. Benz, with directions to pay the income therefrom to this daughter during her life, and the remainder of this fund or estate to her child or children; that George S. Benz is her only child; that William H. Powell was also the executor of the estate of Maggie Shively; that William H. Powell died November 4, 1931, and that the respondent, David H. Powell, is the executor of the estate of William H. Powell; that the defendant, Fred A. Benz is now the duly qualified successor of William H. Powell, as trustee of the trust estate for the benefit of Susie M. Benz; that Jane Coleman has received all of her share of the estate of Maggie Shively; that in the inventory of the estate of Maggie Shively, there was listed real estate being Lots 9 and 10 of Block 21, of Smith and Martin's Second Addition of the City of Sedalia, Missouri; that this real estate was partitioned; that William H. Powell as trustee received one-half of the net proceeds of partition sale which was $ 6986.86, "and took possession of same and wrongfully and fraudulently converted same to his own use and wrongfully and fraudulently added same to the assets of his (Powell's) own private estate, and that the said Trustee, William H. Powell, with intent to cheat and defraud these said Plaintiffs, did then wrongfully, fraudulently, willfully and designedly mix, intermingle, invest and reinvest the said trust fund of $ 6,986.86 and the interest and income thereon, with his own private estate so that said moneys or trust estate or assets of $ 6,986.86, and the interest or income thereon became and are now indistinguishable and inseparable one from the other, in the assets of the private estate of said William H. Powell, deceased, for all of which said amounts the assets of his (William H. Powell's) said private estate became and are unduly and wrongfully enriched, increased or swelled, to the injury, loss or damage to these Plaintiffs."

The petition further alleged that, "these Plaintiffs are now entitled to have said sum of $ 6,986.86, together with said income thereof since July 5, 1920, regarded, treated, allowed and impressed upon and against all of the property, assets or estate of the said William H. Powell, deceased, as a preferred claim or demand, ahead of all other claims, demands, allowances, and costs, of every and all kinds or classes whatsoever of all general or special creditors thereof."

Count two is predicated upon the theory that $ 347.31, found its way into Powell's private estate.

Count three is predicated upon the theory that $ 13,600, found its way into the private estate of Powell. This sum represents the appraised value of thirty-four shares of Citizens National Bank stock at $ 400 per share. (In Mrs. Shively's estate were seventy-three shares of stock in the Citizens National Bank which was appraised at $ 400 per share.)

Count four is predicated upon the theory "that said settlements were false and untrue in that no account therein was made or given for five of said shares of said bank stock of the...