Bond v. Unsell

• Decision Date: 22 June 1934
• Docket Number: No. 23067.,23067.
• Citation: 72 S.W.2d 871
• Parties: BOND et al. v. UNSELL et al.
• Court: Missouri Court of Appeals

72 S.W.2d 871

BOND et al. v. UNSELL et al.

No. 23067.

St. Louis Court of Appeals. Missouri.

June 22, 1934.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be published in State Reports."

Suit by Edith Crider Bond and Mildred Eileen Crider, an infant, by Warren H. May, her next friend, against Mattie Unsell, executrix of the last will and testament of James F. Unsell, deceased, and Mattie Unsell individually. From a judgment in favor of plaintiffs, defendants appeal.

Affirmed.

Hostetter & Haley, of Bowling Green, for appellants.

May & May, of Louisiana, Mo., for respondents.

BENNICK, Commissioner.

This is a suit in equity by which plaintiffs, as legatees under a will, seek to impress a trust upon a fund of $500 alleged to be held among the assets of an estate now under process of administration and distribution, said estate being that of the executor of the estate of the original testatrix by whose will they claim their right to the present payment of the legacy in question. The identity of the parties, and the bases for their respective contentions, will hereinafter appear as we state the facts leading up to this controversy in somewhat of a chronological order.

The estate now sought to be held is that of James F. Unsell, deceased, who, some thirty years ago, was living in the town of Frankford, in Pike county, Mo., with his wife, Sarah J. Unsell, the daughter of one Eliza A. Moss. Mrs. Moss died testate; and by her will, which was filed for probate in the probate court of Pike county on January 21, 1908, she left her daughter, Sarah J. Unsell, the sum of $1,000, absolutely, together with a life estate in 80 acres of land on Salt river, title to the land to revert to the children of a deceased brother of Sarah J. Unsell upon her death.

Mrs. Moss named her son-in-law, James F. Unsell, as her executor, and, as such, he took over the estate upon her death and proceeded with the administration, final settlement being made on February 15, 1910. In the course of his settlements, James F. Unsell took credit for two payments to his wife, Sarah J. Unsell, pursuant to the directions of the will, the sum of $250 having been paid her on March 17, 1908, and the balance of $750 having been paid her estate on March 1, 1909. We say the balance was paid to her estate, for it happens that Sarah J. Unsell had herself died on February 26, 1909.

James F. Unsell and Sarah J. Unsell were childless, but had taken into their home three children, John Crider, Lutie Geery, and Grace Penrod. The first two children were orphans; Grace Penrod was not.

On January 20, 1908, which, incidentally, was the day before her mother's will was filed for probate, Sarah J. Unsell executed her own will, devising and bequeathing to her husband, James F. Unsell, all of her property, whether real, personal, or mixed, to have and to hold the same absolutely except as modified by three special bequests which, however, were not to become operative or to take effect until the death of her husband, James F Unsell. Such three prospective bequests were to the three children theretofore taken into the home, and by which, if such bequests ever became operative, Grace Penrod, or her bodily heirs, was to receive $1,000; Lutie Geery, or her bodily heirs, $500; and John Crider, or his bodily heirs, $500.

Though not identical in language, the three bequests were identical in effect; and inasmuch as it is the bequest to John Crider which is solely involved in this controversy, we set it out in its entirety:

"I will and bequeath to John D. Crider the sum of Five hundred dollars ($500), to be paid to him at the time of the death of my said husband, James F. Unsell; in case the said John D. Crider shall die before the death of my said husband, James F. Unsell, and shall leave bodily heirs, then it is my will and desire that this bequest of Five hundred dollars be paid to said bodily heirs; but in case the said John D. Crider shall die before the death of my said husband, James F. Unsell, without leaving any bodily heirs surviving him, then this bequest shall become null and void."

Thus it appears that Crider's bequest was in no event to be paid until the death of James F. Unsell, and then only if either he or his bodily heirs survived James F. Unsell; otherwise, the bequest was specifically made to become null and void. Incidentally, Crider himself did predecease James F. Unsell, having died on April 4, 1928; but he left surviving him as bodily heirs the two plaintiffs herein, Edith Crider Bond and Mildred Eileen Crider, who now claim to be entitled to the payment of the above sum of $500 out of funds of Sarah J. Unsell's estate which have been commingled with the assets of James F. Unsell's estate.

In her will, Sarah J. Unsell appointed her husband, James F. Unsell, as her executor; and upon her death he offered her will for probate on March 9, 1909. According to the records of the probate court, no further steps were taken with respect to the administration of her estate. What the extent of her estate may have been is a matter of dispute; but it is admitted that whatever property she had at the time of her death passed to her husband, and it does at least appear that the sum of $870 was taken over by him, such sum being the balance to her account in the Frankford Exchange Bank, where she had carried an account from and after September 8, 1908. Incidentally, the account of Sarah J. Unsell was closed out and the balance of $870 credited to James F. Unsell's account on the day that the final payment of $750 was made her estate in satisfaction of the legacy provided for her in the will of her mother, Mrs. Moss.

Now following the death of his first wife, Sarah J. Unsell, James F. Unsell married again, his second wife being Mattie Unsell, the defendant herein.

On November 25, 1929, James F. Unsell executed his will, nominating and appointing his then wife, Mattie Unsell, as his executrix, and making her the residuary legatee of his estate. Among the terms of his will was one ordering and directing his executrix to carry out the exact terms of the will of his former wife, Sarah J. Unsell, thus recognizing his obligation to see to it that the bequests of Sarah J. Unsell to John Crider, Grace Penrod, and Lutie Geery, or to their bodily heirs, should be paid over to the proper parties if, as, and when the said bequests should become effective.

Incorporated in his will was the further direction to his executrix that along with the will of Sarah J. Unsell would be found two promissory notes, one signed by John Crider and dated February 12, 1910, and the other signed by Lutie Geery and dated November 18, 1912; and that in settlement with such beneficiaries under the terms of Sarah J. Unsell's will, the amount of each note, with accrued interest, should in each instance be deducted from the amount of the legacy to be paid.

It developed in the course of the trial that the principal of Crider's note, which was made payable to James F. Unsell, was the sum of $200, which, with accrued interest, amounted to the sum of $412.50 by the time settlement with Crider's bodily heirs was attempted.

On April 22, 1930, James F. Unsell died, whereupon his widow, Mattie Unsell, qualified as his executrix, and entered upon the administration of his estate. Letters testamentary were taken out by her on May 6, 1930, notice of letters being thereafter duly published according to law. We mention this fact because of the contention made, and presently to be discussed, that plaintiffs' recovery is barred in this suit because their claim was not presented as a claim against James F. Unsell's estate within one year after the granting of the letters.

Mattie Unsell's final settlement was made to and approved by the probate court on May 12, 1931, though she has never been discharged as executrix.

By her final settlement it appears that Mattie Unsell had settled with Grace Penrod in full, having given her $350 in cash and land of the value of $600, and having held back $50 (so we are informed in counsel's brief), to meet the state inheritance tax if found to be legally due. It will be recalled that the amount of Grace Penrod's legacy was the sum of $1,000.

It also appears that she settled with one Myrtle Geery Smith, the bodily heir of Lutie Geery who had likewise predeceased James F. Unsell, by the payment of $173, the same being the balance due after the amount of Lutie Geery's note to James F. Unsell, with interest, was deducted from the sum of $500 bequeathed by Sarah J. Unsell to Lutie Geery or her bodily heirs. Apparently there had been no disposition on the part of Myrtle Geery Smith to dispute or contest the propriety of charging the amount of her legacy from Sarah J. Unsell with the indebtedness of Lutie Geery to James F. Unsell.

She likewise took credit for the sum of $62.50 paid Mrs. John Crider, the widow of the John Crider who was the beneficiary of the bequest for $500 in Sarah J. Unsell's will, said payment being the balance alleged to be due after deducting the amount of the note of John Crider to James F. Unsell, with accrued interest, together with the sum of $25 retained to take care of any state inheritance tax. As a matter of fact, however, no such settlement and distribution was accepted.

On April 14, 1931, approximately one month before the making of her final settlement, Mattie Unsell had written to John Crider at Cordell, Okl., checking up on his whereabouts...