Dewees v. Yost

• Decision Date: 22 January 1912
• Parties: DEWEES v. YOST.
• Court: Missouri Court of Appeals

143 S.W. 72

DEWEES v. YOST.

Kansas City Court of Appeals. Missouri.

January 22, 1912.

1. JUDGMENT (§ 475) — PROBATE COURT — JURISDICTION — PRESUMPTION.

The orders of probate courts are entitled to the same presumption of verity on collateral attack as those of common-law courts of general jurisdiction.

2. EXECUTORS AND ADMINISTRATORS (§ 315) — DISTRIBUTION — PERSONS CONCLUDED — PERSONS NOT PARTIES.

Plaintiff's half interest with intestate in a note, was not affected by an order of distribution, he not being a party to the proceeding the distributees being thereby rendered tenants in common with him.

3. EXECUTORS AND ADMINISTRATORS (§ 117) — TORTS — CONVERSION — ACTS CONSTITUTING.

Since one having a half interest in notes distributed to heirs under an order of distribution became a tenant in common with the distributees, the mere act of the administrator in turning over the notes to them was not a conversion thereof.

4. TENANCY IN COMMON (§ 27) — CONVERSION BY JOINT OWNER — POSSESSION OF COMMON PROPERTY.

The mere possession of the common property by one of the tenants in common does not amount to its conversion, in absence of acts hostile to the cotenant's interest.

Appeal from Circuit Court, Cass County; Nick Bradley, Judge.

Action by William Dewees against Philena A. Yost, administratrix of William E. Yost. From a judgment for plaintiff, defendant appeals. Affirmed.

E. Wright Taylor, for appellant. James M. Houston and W. P. Houston, for respondent.

JOHNSON, J.

Plaintiff filed a demand in the probate court of Cass county against the estate of William E. Yost, deceased, to recover damages for the alleged conversion by the administratrix of two promissory notes in which plaintiff had a half interest. The demand was disallowed, and plaintiff appealed to the circuit court, where a trial without a jury resulted in a judgment for defendant.

In April, 1900, B. C. Cope executed and delivered to William E. Yost his negotiable promissory note for $550, payable to the order of said Yost and plaintiff, and in the following year he executed and delivered to Yost a second note for $512.62, likewise payable to Yost and plaintiff. In 1909 Cope paid $105.10 to Yost on account of these notes, and Yost gave one-half of this payment to plaintiff. Afterward Yost died in May, 1909, and his widow, Philena, was appointed administratrix of his estate. His heirs were his widow and two married daughters, Annie Rozier and Maude Hawthorne. The personal estate was large and greatly exceeded the debts of the decedent, and in June, 1909, on the application of the heirs, the probate court made an order of distribution in which each heir was given cash, stocks, bonds, notes, and mortgages of the value...