Campbell v. Spotts

• Citation: 55 S.W.2d 986,331 Mo. 974
• Parties: Frank W. Campbell and Baylor M. Spotts, Trustees, Under the Will of Robert Campbell, v. Edith C. Spotts, Baylor M. Spotts, Jean Laird Stewart, Ellsworth Stewart, Katherine Edith Stewart, Dorris Jean Stewart, Margaret E. Stephens (Sutton), Alexander F. Stephens, Katherine Ann Spotts (Thompson), S. E. Thompson, James B. Campbell, Ella Campbell, Elizabeth Hammer (Alexander), Joseph Hammer, Edith Connell, John H. Connell, John D. Connell, Sarah Ruth Campbell, Frank W. Campbell, Sabra E. Campbell, Lillian C. Dennis, Charles F. Dennis, Jr., Everett H. Dennis, Frances G. Campbell, Robert L. Campbell, Evelyn S. Campbell, James W. Campbell, Robert Eakin Campbell, Letetia Campbell, Jean Campbell, Robert F. Campbell, Helen C. McGinnis, Karl McGinnis, Robert C. McGinnis, Rubina McKay, Annie Anderson, Mary B. Shier (Defendants), Frances G. Campbell and Lillian C. Dennis, Guardian, Appellants
• Decision Date: 20 December 1932
• Court: United States State Supreme Court of Missouri

55 S.W.2d 986

331 Mo. 974

Frank W. Campbell and Baylor M. Spotts, Trustees, Under the Will of Robert Campbell, v. Edith C. Spotts, Baylor M. Spotts, Jean Laird Stewart, Ellsworth Stewart, Katherine Edith Stewart, Dorris Jean Stewart, Margaret E. Stephens (Sutton), Alexander F. Stephens, Katherine Ann Spotts (Thompson), S. E. Thompson, James B. Campbell, Ella Campbell, Elizabeth Hammer (Alexander), Joseph Hammer, Edith Connell, John H. Connell, John D. Connell, Sarah Ruth Campbell, Frank W. Campbell, Sabra E. Campbell, Lillian C. Dennis, Charles F. Dennis, Jr., Everett H. Dennis, Frances G. Campbell, Robert L. Campbell, Evelyn S. Campbell, James W. Campbell, Robert Eakin Campbell, Letetia Campbell, Jean Campbell, Robert F. Campbell, Helen C. McGinnis, Karl McGinnis, Robert C. McGinnis, Rubina McKay, Annie Anderson, Mary B. Shier (Defendants), Frances G. Campbell and Lillian C. Dennis, Guardian, Appellants

Supreme Court of Missouri

December 20, 1932

Appeal from Saline Circuit Court; Hon. Ralph Hughes, Judge.

Affirmed.

Wm D. Bush, Wilbur F. Hall and Ernest D. Martin for appellants.

(1) The trial court failed to observe or follow the law. (a) Cause was pending and plaintiffs could not dismiss after case had been submitted to the court. Sec. 960, R. S. 1929; State ex rel. v. McQuillen, 246 Mo. 517; Barron v. Store Co., 292 Mo. 195; Rutledge v. Dent, 308 Mo 558; Adams v. Cary, 226 S.W. 833; Graves v Chapman, 248 Mo. 83. (b) There had once been a judgment for minors, but clerk failed to record it. Landau v. Ohio Leather Co., 221 S.W. 405. (c) Rights of minors were disregarded. Revely v. Skinner, 33 Mo. 98; Carson v. Hecke, 282 Mo. 580; Newport v. Hatton, 231 P. 987; Tanner v. Schultz, 223 P. 174. (d) Courts should follow directions of testator. Sec. 567, R. S. 1929; Schee v. Boone, 295 Mo. 212; Lane v. Garrison, 293 Mo. 530; Bond v. Riley, 296 S.W. 401; Wooley v. Hayes, 285 Mo. 566; Wiggins v. Perry, 271 S.W. 815; Hays v. St. L. Union Trust, 298 S.W. 91. (2) The trial court committed error in refusing to give judgment to movants and minor defendants and on the answer of guardian ad litem or cross-bill. Sec. 849, R. S. 1929; 33 C. J. 1135; Barron v. Store Co., 292 Mo. 195; Graves v. Chapman, 248 Mo. 83; Keltner v. Threkel, 316 Mo. 609; Rutlege v. Dent, 308 Mo. 558; Adams v. Cary, 226 S.W. 833. The whole record should have been considered and judgment rendered for said minors. Burton v. Burton, 288 Mo. 531; Landau v. Ohio Leather Co., 221 S.W. 405; State ex rel. v. Killoren, 229 S.W. 1097; Dittmeier v. Laughlin, 253 S.W. 777. (3) The trial court committed error in rejecting competent evidence offered by movants, depositions of A. B. Hoy and Frank W. Campbell showing the actual facts which took place at the trial on November 22, 1922, and December 18, 1922, and which were likewise admissions against interest. Rettlia v. Solomon, 308 Mo. 673; Span v. Jackson, 16 S.W.2d 182. (4) The court erred in overruling the motion of movants and minor defendants to correct the record entries, and in not giving judgment for said minors. Sec. 822, R. S. 1929; Burton v. Burton, 288 Mo. 531; Gibson v. Choteau, 45 Mo. 171; Coffee v. Higbee, 298 S.W. 766; Suess v. Motz, 285 S.W. 775. (5) The court erred in disregarding the will of Robert Campbell, and refused to find and decree that said will created a "spendthrift trust," in favor of his children and their families, including movants and minor defendants in the real estate devised to trustees, in trust. Hays v. St. L. Union Trust Co., 317 Mo. 1028; Plummer v. Brown, 315 Mo. 627; Schee v. Boone, 295 Mo. 212; Lane v. Garrison, 293 Mo. 530; Mathews v. Van Cleve, 282 Mo. 19; Wiggins v. Perry, 271 S.W. 815; Dyer v. St. L. Trust Co., 286 Mo. 481; Huntington v. Megaree, 280 Mo. 41; Secs. 562, 3108, R. S. 1929.

Duggins & Johnson and Perry S. Rader for respondents Edith C. Spotts et al.

(1) It is apparent on the face of the petition in the 1922 suit why the cause was dismissed by the plaintiffs therein. (2) All the authorities agree that a judgment cannot be corrected after the term has expired by mere oral evidence. It can be amended only by some memorandum of the judge or clerk filed in the case before the judgment was rendered, or by some other paper of equal dignity with a memorandum of the judge or clerk. Saxton v. Smith, 50 Mo. 490; State ex rel. v. Primm, 61 Mo. 166; Jackson v. Railroad Co., 89 Mo. 104; Atkinson v. Railroad Co., 81 Mo. 50; Pickel v. Pickel, 251 Mo. 209; Burton v. Burton, 288 Mo. 531. The record must show the facts which authorize an amendment of the judgment nunc pro tunc. Dunn v. Raley, 58 Mo. 134; Ross v. Railroad Co., 141 Mo. 390; M. K. & T. Ry. Co. v. Holschlag, 144 Mo. 253; Young v. Young, 165 Mo. 624; Becher v. Deuser, 169 Mo. 159. (3) The plaintiffs were entitled to dismiss the cause of action on December 18, 1922. There was no cross-petition. By Section 929, R. S. 1929, plaintiff is authorized to dismiss his suit "at any time before the same is finally submitted . . . to the court, and not afterwards."

John C. Grover for respondents Robert Eakin Campbell, Letitia Campbell, Helen C. McGinnis and Karl McGinnis.

(1) The record shows that plaintiffs as trustees holding under a will were attacking their authority to act under the will. (2) A nunc pro tunc entry must be based upon some entry, such as the judge's minutes or the clerk's entries, and not upon outside evidence. (3) The answer of the guardian ad litem was not a cross-petition but an answer, and a dismissal of the case terminated the suit.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an appeal from an order of the Circuit Court of Saline County overruling appellants' motions for nunc pro tunc entries and for judgment on an alleged cross-petition of infant defendants by their guardian ad litem. The original suit was an action in equity commenced in 1922 by the trustees under the will of Robert Campbell against the beneficiaries named in the will and the children and grandchildren of those beneficiaries. The petition alleged the completion of the administration of the estate of Robert Campbell and the appointment of plaintiffs by the circuit court as trustees thereunder and the relationship of the defendants and "that conflicting claims have been made and set up, and are now being made and set up by those claiming as devisees or beneficiaries under the will, as to the true construction of said will, and their respective rights, titles and interests in the property devised thereby, the nature, character and duration of any trust or trusts, if any, arising or existing under its provisions, in the property referred to therein, and the rights and duties of plaintiffs as trustees, or otherwise, with respect to certain properties, mentioned in said will, and the income arising therefrom, and as to the use, application and disposition to be made by the trustees of the income to said property." The petition then alleged the nature of the conflicting claims, pointed out the provisions of the will which were claimed to be "conflicting, ambiguous, indefinite and uncertain in meaning," set out the property devised to each of the beneficiaries, and the contentions made about the meaning of and the several possible constructions of provisions concerning the lands devised to each beneficiary and the interest of such beneficiary therein.

The prayer of the petition was that the will be construed; that the duties of the trustees be defined, and that the court "ascertain, determine, and define the identity of the various beneficiaries under said will, in and to the properties mentioned and described in this petition above, and to the income therefrom; and that it ascertain, determine and define the respective rights, title and interest of said beneficiaries in and to said property and to the income thereof; and that if any trust was created by the terms of said provisions of said will, or sufficient language used for such purpose, that the court declare and ascertain, determine and define the nature, character and extent thereof, the beneficiaries thereof, the properties to which it applied and the respective right and interest of such beneficiaries, the duration as to time of such trust and the use, application, disposition and distribution to be made by the plaintiffs, as trustees, of said property and the income therefrom."

A guardian ad litem was appointed for the minor defendants who filed an answer which set up the following contention for the minor defendants:

"These minor defendants further state through their guardian ad litem, that the dominant purpose and intention of the said Robert Campbell, deceased, in the disposition of his property, as ascertained from said last will and testament was to leave his said properties, devised by the first five paragraphs of said will, so that it would remain intact and inure to the benefit of the children of the said Edith C. Spotts, James Bremner Campbell, Frank W. Campbell, Helen Campbell McGinnis and Robert Eakin Campbell, and to that end, by the terms of said will, he gave a life estate in such respective properties to his said above named children and grandchildren, with remainder in fee to their children or descendants, and in furtherance of said purpose and in aid thereof, and for the purpose of insuring support of the wives and children of his said children and grandchildren, the said testator, by the terms of said will, created a trust, whereby the properties devised under the first five paragraphs of the will should be held, managed and controlled by competent trustees, the trustees to rent the property, collect the proceeds, pay the taxes thereon, keep up the improvements, insurance, etc., and use the balance for the support of such devisees and their...