Cunningham v. Kinnerk

• Decision Date: 02 October 1934
• Citation: 74 S.W.2d 1107,230 Mo.App. 749
• Parties: KATE CUNNINGHAM, AND GEORGE STEPHEN, ADMINISTRATOR OF THE ESTATE OF J. W. SIMONS, DECEASED (PLAINTIFFS), RESPONDENTS, v. WM. A. KINNERK, EXECUTOR OF THE ESTATE OF KATE HARRIS, DECEASED (DEFENDANT), APPELLANT
• Court: Missouri Court of Appeals

74 S.W.2d 1107

230 Mo.App. 749

KATE CUNNINGHAM, AND GEORGE STEPHEN, ADMINISTRATOR OF THE ESTATE OF J. W. SIMONS, DECEASED (PLAINTIFFS), RESPONDENTS, v. WM. A. KINNERK, EXECUTOR OF THE ESTATE OF KATE HARRIS, DECEASED (DEFENDANT), APPELLANT

Court of Appeals of Missouri, St. Louis

October 2, 1934

Appeal from the Circuit Court of City of St. Louis.--Hon. Claude O Pearcy, Judge.

Judgment affirmed.

H. A Loevy for appellant.

(1) The will of Campbell although admitted to probate in Kentucky was not filed here in recorder's office or admitted to probate in Missouri, therefore no title passed by it to devisee, Mrs. Martin (deceased in 1925), through whom respondents claim as her heirs at law. R. S. Mo. 1929, sec. 549; Keith v. Keith, 97 Mo. 200; Hines v. Hines, 243 Mo. 494. That statute is mandatory. Ray v. Walker, 293 Mo. 447, l. c. 46, 240 S.W. 187, 191; Church v. Keith, 39 S.W.2d 1000. (2) The alleged claim was barred by our five year Statute of Limitations, and therefore respondents have no rights as her heirs. R. S. 1929, sec. 862, in force in 1909. That statute applies to equitable as well as legal actions. Loomis v. Ry., 165 Mo. 469; Marshall v. Hill, 248 Mo. 1. (3) The claims are barred by the failure to sue for same within one year after publication by appellant of his notice of his letters testamentary in 1926. R. S. Mo. 1929, sec. 75. (4) As the real estate in question was sold by appellant, as executor, during administration, to pay debts, the proceeds of the sale remained "real estate" by fiction of law and therefore vested in the heirs of Simons (originally a plaintiff since deceased) and not in his administrator (Stephen, a respondent herein), if it vested at all or in any one. Rickey v. Withers, 72 Mo. 556; Drur v. Barker, 68 Mo. 155; Jewell v. Nettle, 39 Mo.App. 264; Estate of Lloyd, 44 Mo.App. 672; Hopkins v. Thompson, 73 Mo.App. 407; Elsroth v. Dickmeyer, 88 Mo.App. 422; Kreyling v. O'Reilly, 97 Mo.App. 389; State ex rel. v. Doud, 269 S.W. 264; Lampkin v. Kaiser, 256 S.W. 64. (5) If there was a "mingling" of money, which is not proven herein by Mrs. Harris, the right to recover ceases when the ability to identify the money sought in specie ceases. McClanahan v. Smith, 76 Mo. 428; Phillips v. Overfield, 100 Mo. 460. (6) The cause of action sued on herein is barred by the rule of res adjudicata. State ex rel. v. Trimble, 62 S.W.2d 785. (7) This suit is on basis of a "joint" demand of ownership. By our Statute of Descents the share of each was separate, distinct and divisible, and not "joint." Sec. 306, R. S. 1929, lines 11 and 12; Edwards v. Welton, 25 Mo. 364, 368. Having sued as on a "joint" right the pro bata must correspond to the allegata and failing to do so, they cannot recover. Welch v. Mullins, 3 S.W.2d 91; Johnson v. Chapman, 296 S.W. 837; 47 Corpus Juris, 54, 56, 58, 63--"Parties;" Donahue v. Bragg, 49 Mo.App. 274; Wintergrast v. Court of Honor, 185 Mo.App. 391-2; Yore v. Yore, 240 Mo. 451, 462, a strong case; Welsh v. Union, 252 S.W. 193; Meyers v. Ry., 120 Mo.App. 288; Scott v. Trust Co. (Sup. Ct.), 175 S.W. 925. (8) The claim of respondents is stale in equity. In such cases equity refuses relief. Bennett v. Terry, 299 S.W. l. c. 149; Lenox v. Harrison, 88 Mo. 497; Wells v. Perry, 62 Mo. 573; Jacks v. Links, 291 Mo. 282; Offenstein v. Gehner, 122 S.W. 715, 223 Mo. 318. (9) The proof by parol of a trust in lands must be so clear, cogent and persuasive as to leave no doubt in the mind of the Chancellor. Rogers v. Rogers, 87 Mo. 257; Farland v. LaForce, 119 Mo. 585; Martin v. Martin, 250 Mo. 539; Watson v. Payne, 143 Mo.App. 721; Childs v. Ass'n, 4 Mo.App. 74; Crowler v. Crowler, 131 Mo.App. 178; Easter v. Easter, 246 Mo. 409. (10) "Proof of a constructive trust must be so clear, unequivocal, cogent and impelling as to exclude every reasonable doubt from the Chancellor's mind. " Bunel v. Nester, 101 S.W. 69, 203 Mo. 492; Bunel v. Bank, 101 S.W. 78. (11) "In action to establish a constructive trust in land, where both parties to transaction are dead, and action relates to matters occurring thirty years before trial, proof necessary to establish a verbal contract upon which alleged trust is based must be shown by clear, cogent and convincing evidence." Johnson v. Jameson, 209 S.W. 919. (12) There must be notice to the person sought to be charged as a trustee of the intent of the parties to create a trust. Taylor v. Thompson, 88 Mo. 86; Mann v. Bank (Sup. Ct.), 20 S.W.2d, l. c. 502; Bank v. Bank, 102 Mo.App. 365; Paul v. Fulton, 25 Mo. 162. (13) "Determination of all issues. A judgment without a trial and determination of all the issues properly raised is erroneous." Car Mfg. Co. v. Hirsch Co., 227 S.W. 67; Agan v. Quick, 226 S.W. 601; Maloy v. St. Louis R. Co., 178 S.W. 224; Thresher Co. v. Speak, 167 Mo.App. 470, 151 S.W. 235; Rhodes v. Guhman, 156 Mo.App. 344, 137 S.W. 88; Nichols v. Dodson Co., 85 Mo.App. 584; Boothe v. Loy, 83 Mo.App. 601. (14) It is error to enter judgment against defendant without disposing of all his pleas. Newcomb v. Payne, 250 S.W. 553; Petrie v Reynolds, 219 S.W. 934; Elliot v. DeLaney, 217 Mo. 14, 116 S.W. 515, 106 S.W. 1028; Algeo v. Algeo, 207 S.W. 842; Thresher Co. v. Speak, 167 Mo.App. 470, 151 S.W. 235; Mfg. Co. v. Montgomery, 144 Mo.App. 494, 129 S.W. 460; Rogers v. Ins. Co., 132 Mo.App. 275, 111 S.W. 592; Orchard v. Bank, 121 Mo.App. 338, 98 S.W. 824; Nichols v. Dodson, 85 Mo.App. 584; Paul v. Fulton, 25 Mo. 182. (15) The court erred in overruling appellant's motion to dismiss at close of respondent's case. Haas v. Service Ass'n, 297 S.W. 129, et seq.

Arthur L. Wackwitz and H. Brammer for respondents.

(1) The evidence in this record amply sustains the finding. Cunningham v. Kinnerk, 1 S.W.2d 241. (2) This defendant is now estopped to deny Kate Harris' ratification and imputed, if not actual knowledge, of her attorney's acts in recognizing the rights of Campbell's legatees in the Harris property through the solicitation of and the reservation and exception written into the quitclaim deed drawn by the defendant. Ruggles v. Washington County, 3 Mo. 496; Wilson v Bigelow, 47 Mo. 413; Walker v. Hessler, 240 S.W. 257; St. Louis Mutual Life Ins. Co. v. Walter, 46 S.W.2d 166; Madison v. Williams, 16 S.W.2d 626; Ricketts v. Finkelstein, 211 S.W. l. c. 401; Barrett v. Baker, 37 S.W. l. c. 131; Jennings v. Todd, 118 Mo. l. c. 303; Lafferty v. Casualty Co., 287 Mo. l. c. 564-65; See v. See, 237 S.W. l. c. 799. (3) The rights of James E. Campbell, and those of his legatees at his death, were at all times an equitable charge "on" and not a right or title "in" the Harris realty. State ex rel. Anderson v. Roehrig, 8 S.W.2d 998; Young v. Levine, 31 S.W.2d l. c. 980; Fillmire v. Wells, 10 Colo. 228. (4) Neither Kate Cunningham nor J. W. Simons have the status of "heirs" of Kate Harris, therefore, the fiction of law that realty converted into cash retains the character of realty has no application to them, and title to realty is not involved, even by fiction of law, since the fund sought to be recovered belonged to Campbell and not to Kate Harris. Cunningham v. Kinnerk, 1 S.W.2d 241; Clay v. Walker, 6 S.W.2d l. c. 967; Farrell v. Farrell, 91 Mo.App. l. c. 672-673; Heman v. Wade, 141 Mo. l. c. 601; Price v. Blankenship, 144 Mo. 203; Brown v. Turner, 20 S.W. l. c. 661. (5) The "trustee's statement" (Abs., p. 97, Pl. Ex. "K") does not and need not create or express a trust, in and by itself, and yet, as an evidentiary fact it carries probative force to establish a resulting trust. Cunningham v. Kinnerk, 1 S.W.2d 241; Cassity v. Cassity, 240 S.W. 486; Troll v. First National Bank, 216 S.W. 922. (6) The quitclaim deed (Abs., p. 70, Pl. Ex. "E") though limiting its reservation to Kate Cunningham, is still an evidentiary fact clearly establishing the equitable rights of the "whole" Campbell interests in the property, and the limited reservation therein does not destroy or affect the rights of persons not named in that deed. Cunningham v. Kinnerk, 1 S.W.2d 241; Lemon v. Lemon, 201 S.W. 103; Troll v. First National Bank, 216 S.W. 922. (7) This being an equitable action in which plaintiffs are pursuing a trust fund to which both are equally entitled, the interests of both can be recovered in a single action and our statute, section 306, Revised Statutes of Missouri, 1929, has no application. 30 Cyc. 118; 39 Cyc. 614; Dillon's, Adm., v. Bates, 39 Mo. l. c. 299; State ex rel. Kelley v. Thornton, 56 Mo. l. c. 327; Goodwin v. Goodwin, 69 Mo. l. c. 622; Gartside v. Gartside, 113 Mo. l. c. 358; Ballew Hdw. & Lbr. Co. v. Mo. P. Ry. Co., 232 S.W. l. c. 1016; Shelton v. Harrison, 137 S.W. l. c. 636; Leyton v. Owens, 150 Mo.App. l. c. 114. (8) The failure to record or probate Campbell's will in the City of St. Louis, Missouri, did not render it inadmissible in evidence. Lewis v. City of St. Louis, 69 Mo. l. c. 599; Bradstreet v. Kinsella, 76 Mo. l. c. 66; Kieth v. Kieth, 80 Mo. l. c. 129; Gaines v. Fender, 82 Mo. l. c. 504-505; Drake v. Curtis, 88 Mo. l. c. 646-647; Keith v. Keith, 97 Mo. l. c. 228; Creasey v. Alverson, 43 Mo. l. c. 20. (9) The will of James E. Campbell is valid in Missouri and can pass title to personalty even though not recorded here, our statute, section 552, Revised Statutes of Missouri, 1929, having no application to personalty. Rodney v. McLaughlin, 9 S.W. 726; Kieth v. Johnson, 10 S.W. 597; White v. Greenway, 263 S.W. l. c. 104; Thomas v. McGhee, 8 S.W.2d l. c. 73; Creasey v. Alverson, 43 Mo. l. c. 20; Gaines v. Fender, 82 Mo. l. c. 504-505; Cunningham v. Kinnerk, 1 S.W.2d 241; Weller v. Wagner, 79 S.W. 941, 942; James v. Eaton, 270 S.W. 108. (10) Our statute, section 552, Revised Statutes of Missouri, 1929, is designed to give notice only, for the protection of persons without notice dealing with...