Ewing v. Parrish

• Decision Date: 17 May 1910
• Citation: 128 S.W. 538,148 Mo. App. 492
• Parties: EWING v. PARRISH.
• Court: Missouri Court of Appeals

128 S.W. 538

148 Mo. App. 492

EWING v. PARRISH.

St. Louis Court of Appeals. Missouri.

May 17, 1910.

1. EXECUTORS AND ADMINISTRATORS (§ 31)— ACCOUNTING AND SETTLEMENTS—POWERS AFTER ACCOUNTING—POWER TO SUE.

An administrator's power ceases after final settlement, pursuant to due notice and approval thereof, accompanied by an order of discharge, so that he cannot thereafter sue as administrator on a demand due the estate, though if the final settlement was approved without an order of discharge, he is still under the control of the probate court, and may sue for the estate.

2. EXECUTORS AND ADMINISTRATORS (§ 31)—SETTLEMENT—EFFECT AS TO ASSETS UNADMINISTERED.

An administrator may, after approval of his final settlement, subsequent to the term at which it was rendered, but before his final discharge, sue to collect the assets not known to him when settlement was made.

3. EXECUTORS AND ADMINISTRATORS (§ 31)— DISCHARGE.

Though the judgment of the probate court, on the final settlement of an administrator, provided that the filing of the receipts from the distributees should be in full discharge of all funds held by him, where no receipts were filed because the distributees contested the settlement, the administrator continued to be such so as to authorize him to sue to recover assets of which he had no knowledge at the settlement.

4. EXECUTORS AND ADMINISTRATORS (§ 69)— ASSETS OF ESTATE—FAILURE TO INVENTORY.

If notes belonged to an estate, their proceeds did not cease to be assets because they were not inventoried or accounted for in the administrator's final settlement, or because the probate court charged him with a note for which they were substituted.

5. TRUSTS (§ 102)—CONSTRUCTIVE TRUSTS.

Plaintiff's intestate sold land, retaining a vendor's lien for the price, and the vendee afterwards borrowed a certain sum, giving a first deed of trust, and paid such amount to intestate, and executed notes secured by a second trust deed for the balance. The land was sold under the first trust deed for default. Plaintiff and the heirs decided not to purchase at the sale to protect the second trust deed, but defendant's intestate, the attorney for plaintiff as administrator, purchased the property at the foreclosure sale with his own money without plaintiff's knowledge. Held, that defendant's intestate did not hold the land, or the proceeds of its resale, as a constructive trustee.

6. ATTORNEY AND CLIENT (§ 125)—DUTIES OF ATTORNEY—ACTING ADVERSELY TO CLIENT.

Where the administrator and heirs decided not to bid in land sold under a first trust deed in order to protect a second trust deed held by the estate, an attorney for the administrator could buy the land for his own benefit.

7. TRUSTS (§§ 17, 18)—CREATION—ORAL DECLARATION—TRUST IN LAND.

To declare an express trust in land on a verbal declaration would contravene the statute of frauds (Rev. St. 1899, § 3416 [Ann. St. 1906, p. 1949]), making all declarations of trust of any land void unless manifested and approved by writing and signed by declarant.

8. TRUSTS (§§ 17, 18)—CREATION—TRUST IN PERSONALTY—ORAL DECLARATION.

A trust in personalty may be established orally.

9. TRUSTS (§ 359)—ESTABLISHMENT—PROCEEDS—PROBATE PROCEEDINGS.

While an action for money had and received will sometimes lie in favor of a cestui que trust against a trustee, if the trust is disputed, and the amount of the trust fund unsettled, so that the trust must be established, the proper remedy is a suit in equity, and where the attorney for an administrator bought with his own money, without the administrator's knowledge, land sold upon foreclosure of a senior deed of trust, upon the decision of the administrator and heirs not to protect a junior lien held by the estate, so that there was no constructive trust in the land or the proceeds of its subsequent resale, an express trust in the land and notes in favor of the estate could not be established in proceedings by the administrator against the estate of the attorney who purchased the land; a suit in equity being the proper remedy.

Appeal from Circuit Court, Scotland County; Chas. D. Stewart, Judge.

Action by Joel Ewing against E. E. Parrish, administrator. From a judgment for defendant, plaintiff appeals. Affirmed.

Smoot & Smoot, for appellant. McKee & Janes, for respondent.

GOODE, J.

To render this case clear a full statement of the facts is essential, and they were developed on the trial in a way which makes it difficult to ascertain from the record what they are. Much of the evidence put in consisted of testimony given on the trial of another case, wherein the final settlement of plaintiff as administrator was in contest, and many of the questions and answers on the present trial relate to what the witnesses testified at the other trial. Moreover, the testimony is, in many particulars both vague and contradictory. This proceeding, commenced in the probate court by plaintiff as administrator de bonis non of the estate of H. G. Pitkin, presenting a demand against E. E. Parrish as administrator of the estate of John B. Mudd, deceased, for the amount of three promissory notes signed by Barton Hunt, dated February 18, 1899, bearing 7 per cent. interest from date, one being for $100 and the other two for $200 each, less a credit on them of $100. The total amount claimed, principal and interest, is $558. Just when the demand was filed in the probate court is nowhere stated; but the date of the affidavit to the demand shows it was not prior to September 5, 1906. The notes had been executed by Hunt to John B. Mudd under circumstances which will appear as we proceed. Plaintiff's decedent H. G. Pitkin, died in 1895, and the first letters on his estate were granted to his widow and son, but afterward plaintiff was appointed administrator de bonis non. In his lifetime Pitkin had sold a tract of land containing 120 acres to a man named Morrison and had given the latter a bond for a deed. Morrison owed the purchase money secured by a vendor's lien. After the death of Pitkin, Morrison sought to have the contract of sale specifically enforced, and the proceeding for that purpose was settled by an arrangement between him and plaintiff, as administrator, that Morrison should borrow $750 on a first deed of trust on the land, pay the money to plaintiff as administrator, and execute to plaintiff a promissory note for the balance of the price of the land, or $520, and secure the note by a second deed of trust. This plan was carried out, as near as we can gather, around the year 1896 or 1897. Morrison borrowed $750 from a man named Burkett, and gave a deed of trust to N. V. Leslie to secure the loan. He turned the money over to plaintiff, and executed a note to plaintiff for $520, securing the same by a second deed of trust. The Burkett note was not paid, and there was a sale of the land under the first deed of trust on account of the default. The right of the present case hinges largely on what transpired at that foreclosure sale. The question arose whether plaintiff ought to protect the second incumbrance by paying off the Burkett loan or bidding in the land at the sale by the trustee Leslie, or whether it was best to let the land go and lose the amount of the second incumbrance. Plaintiff took counsel with the Pitkin heirs about the matter, who preferred to lose the second deed of trust rather than put any money of the estate in the land or pay off the Burkett incumbrance. The entire evidence shows the decision reached by plaintiff and the heirs was to let the land go, they deeming that course wiser than to attempt to protect the second incumbrance. As administrator plaintiff had for his attorneys the firm of Smoot, Mudd & Wagner, and there is evidence tending to prove those attorneys resolved on a different policy, namely, to protect the Pitkin estate from the loss of the second note; but there is no evidence to show there was an understanding between them and plaintiff, as administrator, they should do so. On the contrary, the trend of all the testimony is to prove plaintiff knew nothing about their plan. Mudd bought the land in at the sale by Leslie, the trustee, for $875, being the amount necessary to pay the debt, interest, costs, and taxes, as Mudd testified in the other case.

The evidence in the present record would support three theories of why Mudd bought the land: First, as said, that he bought it to protect the Pitkin estate; second, that he bought it to enable the Burkett estate to get the amount of its loan, because that loan had been made at the solicitation of Smoot, Mudd & Wagner, and Leslie insisted they were in honor bound to make the land yield enough to discharge it; third, that Mudd bought speculatively and for his own benefit. He testified in the contest over plaintiff's final settlement he considered the land his own. The sale occurred November 21, 1898. Mudd wished to resell the land, and on February 18, 1899, he sold it to Barton Hunt. The circumstances of that sale need to be stated The firm of Smoot, Mudd & Wagner, the latter acting in the matter, arranged a loan from one Holley for $900, to be secured by deed of trust. This money was to be turned over to Mudd, and Hunt was to execute to him three notes, one for $100 and two for $200 each, secured by a second deed of trust. After these notes had been signed by Hunt, Holley agreed to increase his loan to $1,000, which was turned over to Mudd, who thereupon gave a credit of $100 on each of the notes Hunt had made to him. The main question in the case, it will be perceived, is whether Mudd bought in the land at the sale by Leslie for the Pitkin estate, afterwards sold to Hunt to reimburse himself what cash he was out, and took the Hunt notes, which represented the balance of the purchase price, for the benefit of the Pitkin estate.

But other questions are involved Plaintiff had submitted his final settlement as administrator to the probate court in 1899, a fact we...