Denvir v. Park
| Decision Date | 31 December 1912 |
| Citation | 152 S.W. 604,169 Mo.App. 335 |
| Parties | JOHN B. DENVIR, JR., Administrator, Respondent, v. MATHEW PARK et al., Defendants; MATHEW PARK, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
AFFIRMED.
Judgment affirmed.
Leighton Shields for Mathew Park, defendant-appellant; Thos. J. Rowe for Thos. Ward McManus, defendant.
(1) The trial court erred in overruling defendant Park's objection to the admission of any evidence under plaintiff's petition, for the reason that the first count and the second count thereof do not state facts sufficient to constitute a cause of action. (a) As to the first count, no where does it appear what the alleged services of Crow consist in, or in what way they were beneficial to the trust estate. (b) There is a misjoinder of parties defendant as to the first count. Jamison v. Cullingan, 151 Mo. 410; Doan v. Holly, 25 Mo. 357. (c) As to the second count, for the reason that the whole right of action in this count is sought to be based on an allowance by the probate court in favor of Maginn against the estate of William F Crow, to which proceeding none of the defendants herein were parties, or in any privity with the Crow estate. Koontz v. Kauffman, 31 Mo.App. 397. (d) There is no ground for subrogation in favor of plaintiff against defendant Park in said petition alleged, and further said petition fails to state that the Crow estate in fact has paid Mr. Maginn anything. French v. Trustees of Griswold College, 60 Iowa 482; Beach on Trustees, sec. 728. (e) There is an improper joinder in said petition of different causes of action. Doan v. Holly, 25 Mo. 357. (2) The trial court erred in admitting, over the objection of defendant the testimony of witness Maginn as to the alleged fact he was employed by Crow, deceased trustee, and as to the fact that he rendered certain services to Crow, as trustee, who at the time of this trial was shown to be dead. R. S. 1909, sec. 4652; Angell v. Hester, 64 Mo. 142; Meier v. Thieman, 20 Mo. 433; Peck v. McKeane, 45 Ia. 18; 2 Woerner on Administration, pp. 829-30, 834. (3) The court erred in overruling defendants' objections to the introduction in evidence of the files of the probate court in the estate of Crow and oral evidence in support of them showing an allowance by the probate court to Maginn, for the reason that defendants were not parties in the probate court proceeding or in privity with the Crow estate. Koontz v. Kauffman, 31 Mo.App. 397; McCorkle v. Miller, 64 Mo.App. 163; Comstock v. Keeting, 115 Mo.App. 372. (4) The trial court erred in giving judgment against defendant Park on the second count in the amount of five thousand ($ 5000) dollars, for the reason that there is no competent evidence, except of witness Nichols and the files in the partition suit, on which to bottom any judgment, and on this evidence an allowance of five thousand dollars is grossly excessive. (5) The trial court erred in giving judgment against defendant Park on the second count in the amount of five thousand dollars for the reason that considering all of the evidence introduced, both competent and incompetent, regarding the services of Maginn, the allowance of five thousand dollars, is grossly excessive. (6) The trial court erred in giving judgment against defendant Park on the second count in the amount of five thousand dollars, for the reason that the evidence shows that Maginn's services for Crow were so confused with his services rendered to Mrs. Burrows that it is impossible to determine which services he rendered Crow. (7) The trial court erred in giving judgment against defendant Park on the second count, in the amount of five thousand dollars, for the reason that there is no competent evidence that Maginn was employed by Crow for a fee. (8) The trial court erred in giving judgment against defendant Park in the amount of sixteen hundred ($ 1600) dollars, on the first count of said petition, as services for Crow, trustee, for the following reasons: (a) Crow, as trustee, disregarded the power in the will appointing him and mismanaged the trust estate and should hence be deprived of the right to receive any compensation. Newton v. Redanack, 90 Mo.App. 650; Maginn v. Green, 67 Mo.App. 620. (b) Trustee may only recover for his services in so far as those services are necessary and beneficial to the trust estate, there being no evidence of such condition of facts in this case. 2 Perry on Trusts, sec. 919. (c) All of the heirs at law of Crow, trustee, in a court of competent jurisdiction, having jurisdiction over their respective persons, on issues raised by them asking compensation for Crow's service, had final judgment rendered against them with no allowance for such services. (9) The trial court erred in ruling out evidence of an adjudication on the question of Crow's allowance which was final, and to which proceeding all the heirs at law of Wm. F. Crow were parties, which evidence was offered by defendant Park. (10) The trial court erred in giving judgment against defendant Park on his counterclaim for the reason that Park should have judgment against plaintiff, as administrator, in damages in the amount of seven hundred two and 04/100 dollars as a penalty accruing on the 1906 taxes, which came due by virtue of the neglect of Crow to pay these taxes. Hildenbrandt v. Wolff, 79 Mo.App. 333.
T. M. Pierce, A. N. Sager and T. E. Francis for respondent.
(1) (a) The point made by appellant, that his demurrer ore tenus to the first count of the petition should have been sustained on the ground that said count is indefinite in its allegations in regard to the services performed by the deceased trustee for which a recovery is sought, is untenable, because that objection, if valid, should have been raised by motion to make more definite and certain, and was waived by answer. Spurlock v. Railroad, 93 Mo. 530; Commission Co. v. Block, 130 Mo. 668; Jackson v. Railroad, 80 Mo. 147; Slaughter v. Slaughter, 106 Mo.App. 104; Harrison v. Self, 103 Mo.App. 286. (b) The point made by appellant, that his demurrer ore tenus to the second count of the petition should have been sustained on the ground that, as to said count, there was a misjoinder of parties defendant, is untenable, because that objection, if valid, is patent on the face of the petition, and hence should have been raised by a formal demurrer before answer, and was waived by answer. Secs. 1800, 1802, R. S. 1909; Brook v. Tull, 111 Mo. 283; Fulwider v. Light Co., 216 Mo. 582; Groves v. Terry, 219 Mo. 595; Stevens v. Fitzpatrick, 218 Mo. 708. (2) Appellant's proposition "c" under point 1 is untenable, in view of the fact that this action is not based upon the allowance by the probate court in favor of the attorney Maginn and against respondent administrator, but is predicated upon the right of the trustee (respondent's intestate) to recover against his successor in trust for necessary expenses personally incurred in administering the trust estate. An attorney employed by a trustee to render services in the administration of the trust estate is not entitled to recover for such services against the trust estate, but the trustee is personally liable therefor; and the trustee, independent of any right of the attorney, has a right to recover against the trust estate for the reasonable value of such services, for which he has incurred a personal liability. Johnson v. Zuman, 7 L. R. A. 656; Yeakle v. Priest, 61 Mo.App. 47; Iron Works v. Kinealy, 86 Mo.App. 199; Coffman v. Yates, 110 Mo.App. 415. (3) Appellant's proposition "d" under point 1 is untenable, in view of the fact that this action is not based upon the theory of subrogation but, as shown in point 2, is predicated upon the theory that the estate of the deceased trustee is entitled to recover the reasonable value of necessary expenses incurred in the administration of the trust estate. Johnson v. Zuman, 7 L. R. A. 656; Yeakle v. Priest, 61 Mo.App. 47; Koken Iron Works v. Kinealy, 86 Mo.App. 199; Coffman v. Yates, 110 Mo.App. 415. (4) (a) Appellant's point 2, that the witness Maginn was incompetent to testify, under section 6354, R. S. 1909, is not well taken, because this statute was enacted to protect the estates of decedents, and only inhibits testimony by the surviving party to a contract when offered against the interest of the deceased party. The personal representative of the deceased always has a right to waive such inhibition, and, of course, may offer the survivor as a witness in behalf of decedent's estate. (b) Appellant's point 2 cannot be sustained, however, for another reason, viz.: that the testimony complained of, relating to the employment and services of Maginn as attorney, was merely cumulative, and, if erroneously admitted, would not work a reversal, but would be merely disregarded by this court, inasmuch as this is an action in equity; and if the testimony remaining was sufficient to authorize a finding that such employment was made and such services rendered, that finding would be upheld. Crook v. Tull, 111 Mo. 273 Powell v. Adams, 98 Mo. 605. (5) Appellant's point 3, that the court erred in permitting the introduction of the files of the probate court, and oral evidence in support of them, showing the allowance by that court to Maginn is untenable; and if it were tenable, the error would be innocuous, inasmuch as the trial court ignored the conclusion of the probate court and there was other evidence on the question of the services rendered and their value. The suggestions we make under point 4 (b) are applicable to this point also. Crook v. Tull, 111 Mo. 273. (6) Respondent contends, and appellant admits in his brief, that "the allowance to the trustee is always paid out of the life estate,"...
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