Dietrich v. Jones

• Decision Date: 08 November 1932
• Parties: FRANK DIETRICH, SPECIAL DEPUTY COMMISSIONER OF FINANCE IN CHARGE OF LIQUIDATION OF PEOPLES BANK OF DE SOTO, A CORPORATION, RESPONDENT, v. EVA A. JONES, EXECUTRIX OF THE ESTATE OF R. B. JONES, DECEASED, AND K. JONES, THE ESTATE OF ERNEST S. COXWELL, R. P. COXWELL, ADMINISTRATOR, THE ESTATE OF G. A. AUERSWALD, D. L. ROUGGLY, EXECUTOR, APPELLANTS
• Court: Missouri Court of Appeals

53 S.W.2d 1059

227 Mo.App. 365

FRANK DIETRICH, SPECIAL DEPUTY COMMISSIONER OF FINANCE IN CHARGE OF LIQUIDATION OF PEOPLES BANK OF DE SOTO, A CORPORATION, RESPONDENT, v. EVA A. JONES, EXECUTRIX OF THE ESTATE OF R. B. JONES, DECEASED, AND K. JONES, THE ESTATE OF ERNEST S. COXWELL, R. P. COXWELL, ADMINISTRATOR, THE ESTATE OF G. A. AUERSWALD, D. L. ROUGGLY, EXECUTOR, APPELLANTS

Court of Appeals of Missouri, St. Louis

November 8, 1932

Appeal from the Circuit Court, of Jefferson County.--Hon. E. M Deering Judge.

Reversed and remanded.

E. C Edgar for appellants.

The sureties on bond of Roscoe B. Jones, as guardian and curator of the estate of Lulu Hamill, were clearly entitled to all the rights of the Hamill estate, in judgment rendered against the Jones estate, January 19th, 1927, when they paid said judgment. Cowgill v. Linville, 20 Mo.App. 138; Baur v. Gray, 18 Mo.App. 164; Weneck v Kenyon, 66 Mo. 275; Maffat v. Green, 149 Mo. 48; Ferguson v. Carson, 86 Mo. 673, 679. The law is well settled in this State that a trustee must keep all trust funds separate from his own funds and if he mingles same so that the trust money cannot be distinguished from his own, his entire estate will be subjected to the payment of the trust. Stasiak v. Kaluki, 255 S.W. 978; Harrison v. Smith, 83 Mo. 210; Orr v. Trust Co., 291 Mo. 383, 404; Stoller v. Coats, 88 Mo. 514; Bucher v. Walther, 163 Mo. 461; Hogan Realty Co. v. Bank, 273 S.W. 772; Tufts v. Latshaw, 172 Mo. 359, 373: Evangelical Synod v. Schoeneich, 143 Mo. 652, 663; State v. Page Bank, 14 S.W.2d 597, 599.

Frank Dietrich, T. E. Francis and Will B. Dearing for respondent.

The judgment of the circuit court reversing the judgment of the probate court should be affirmed, because, first, such court is one with limited powers, and has no jurisdiction to classify demands except in accordance with the statute, which does not contemplate or permit the preferment of one creditor of a class over another, and, secondly, because such court, not being vested with chancery powers, cannot, on the theory of following trust funds, impress a trust upon the assets of an estate. Secs. 182, 183, R. S. of Mo. 1929; Shelton v. Harrison, 182 Mo.App. 404, 413; Ewing v. Parrish, 148 Mo.App. 492, 502-503; Bank v. Lillibridge, 316 Mo. 968, 974; Butler v. Lawson, 72 Mo. 228, 245-246; State ex rel. v. Bird, 253 Mo. 569, 579-580; Peck v. Fillingham, 199 Mo.App. 277, 284-285.

HAID, P. J. Becker and Daues, JJ., concur.

OPINION

HAID, P. J.--

This is an appeal from the judgment of the circuit court setting aside an order of a probate court allowing a claim as a preferred one.

The case was tried upon an agreed statements of facts covering some thirty printed pages of the abstract, but a sufficient understanding of the question involved can be gleaned from the following statement.

On January 24, 1920, Lulu Hamill, a resident of Jefferson County, Missouri, was adjudged a person of unsound mind by the probate court of that county, and Roscoe B. Jones was appointed guardian of her person and curator of her estate and as such gave bond in the sum of $ 20,000; such bond was executed with Ernest S. Coxwell, G. A. Auerswald, K. Jones and C. E. Merseal as sureties.

Roscoe B. Jones died on January 2, 1921, and Eva A. Jones became executrix of his estate and as such, on April 2, 1921, filed a final settlement of the estate of the insane person. On April 9, 1921, Anna L. Hamill, who had been appointed and qualified as guardian and curator of said insane persons, as successor to Roscoe B. Jones, deceased, filed exceptions to such settlement, and on May 7, 1921, the court disapproved and rejected such settlement and ordered Eva A. Jones, executrix, to make and file a new settlement in said estate and to pay to the successor curator of said estate the sum of $ 13,233.31, which the court found Roscoe B. Jones, as curator of said insane person, had converted to his own use.

Eva A. Jones, the executrix, appealed from the last mentioned order to the circuit court of Jefferson county, and on July 11, 1923, the circuit court affirmed the order of the probate court. An appeal was prosecuted from this judgment to the Supreme Court, which court remanded the cause to the circuit court with directions to make additional investigation and to enter judgment in favor of the successor guardian and curator of the estate of the insane person in accordance with the findings of the circuit court. Pursuant to the mandate of the Supreme Court, the circuit court did, on January 19, 1927, sustain the exceptions filed by the successor curator to the final settlement so filed by the executrix of the estate of Roscoe B. Jones and found that Roscoe B. Jones, during his lifetime and while in possession of the assets of the estate of Lulu Hamill, converted to his own use certain assets belonging to said estate, and directed the executrix to pay to the successor or guardian and curator the sum of $ 19,264.38, being the value of the property so converted, with interest thereon.

It was further ordered that the judgment of the circuit court, together with the original files, be certified by the clerk to the probate court of Jefferson county.

Eva A. Jones, executrix, did not comply with such order and judgment of the circuit court and did not pay any portion thereof to the successor curator. The insane person having died, Anna L. Hamill was appointed Administratrix of her estate, and on August 22, 1928, filed suit in the circuit court of Jefferson county against G. A. Auerswald, Ernest S. Coxwell, K. Jones and C. E. Merseal as sureties on the bond of Roscoe B. Jones as guardian and curator of Lulu Hamill for the sum of $ 19,264.38. Ernest S. Coxwell, C. E. Merseal and G. A. Auerswald having died, the cause as to them was revived on September 17, 1929, against their estates. The circuit court then rendered judgment against the estate of Ernest S. Coxwell, the estate of G. A. Auerswald, the estate of C. E. Merseal and against K. Jones for the sum of $ 6800. The estate of Coxwell, the estate of Auerswald and K. Jones having paid and satisfied the judgment (the estate of C. E. Merseal being insolvent) were, by the judgment of said circuit court, subrogated to all the rights and interest of the estate of Lulu Hamill in and to the aforesaid judgment entered and recorded in the said circuit court January 19, 1927, against the estate of Roscoe B. Jones in favor of the estate of Lulu Hamill, and said judgment was certified by the clerk of said circuit court to the probate court, on October 24, 1929.

On November 9, 1929, the estate of G. A. Auerswald, the estate of Ernest S. Coxwell and K. Jones filed their petition in the probate court praying that they be allowed, as a preferred and prior claim against the estate of Roscoe B. Jones, said sum of $ 6800 paid by them as sureties on the bond of Roscoe B. Jones as guardian and curator of the estate of Lulu Hamill.

Among the claims allowed by the probate court against the estate of Roscoe B. Jones was one upon an assigned judgment for $ 52,000 rendered in favor of the administrators de bonis non with the will annexed of the estate of Caroline Higginbotham, deceased. The judgment having been paid by the sureties on the bond, the circuit court entered a judgment in favor of the sureties against the executrix of the estate of Roscoe B. Jones, and this judgment in turn was assigned by the sureties to the Commissioner of Finance of the State of Missouri in charge of the liquidation of the Peoples Bank of De Soto.

The total claims allowed by the probate court against the estate of Roscoe B. Jones aggregated approximately $ 59,800, while the net assets of the estate, after payment of the fee of the executrix and expenses, total about $ 7300.

On January 4, 1930, the executrix of the estate of Roscoe B. Jones filed her final settlement of said estate in the probate court of Jefferson county, wherein she took credit for the sum of $ 6800 to be paid as a preferred claim against said estate, leaving about $ 522 to be distributed to the other creditors.

On January 11, 1930, Frank Dietrich, Special Deputy Finance Commissioner in charge of the liquidation of the Peoples Bank of De Soto, filed his exceptions and objections to such final settlement. On January 25, 1930, the court approved the final settlement and ordered distribution accordingly, from which order an appeal was taken to the circuit court, which court sustained the exceptions so filed to the final settlement.

It is from this judgment of the circuit court that the appeal is prosecuted by the owners of the claim for $ 6800.

Conceding, as the appellant assents, that sureties by paying the debt or judgment against their principal, become subrogated to all the rights of the judgment creditor (Cowgill v. Linville, 20 Mo.App. 138, 147) does that fact authorize a probate court to which the claim of the sureties is presented, to allow such claim as a prior and preferred claim against the assets of the estate of the deceased principal?

As is said by the Supreme Court in the case of State ex rel. v. Holtcamp (Mo.), 14 S.W.2d 646, 650:

"The probate court is a court of limited jurisdiction, possesses only such power as is conferred upon it by statute, and can exercise its jurisdiction only in the manner prescribed by statute." [St. Louis v. Hollrah, 175 Mo. 79, 85, 74 S.W. 996, 998.]

"Whenever a statute limits a thing to be done in a particular form, it necessarily includes in itself a negative, namely, that the thing shall not be...