Gordon v. Eans

• Decision Date: 04 March 1889
• Citation: 97 Mo. 587,11 S.W. 64
• Parties: GORDON v. EANS.
• Court: Missouri Supreme Court

11 S.W. 64

97 Mo. 587

GORDON v. EANS.

Supreme Court of Missouri.

March 4, 1889.

ADMINISTRATORS — EMBEZZLEMENT.

In a summary proceeding brought in the probate court under 1 Wag. St. Mo. p. 85, § 7, by an administrator, to recover assets of the estate embezzled, fraudulent misappropriation by the defendant is essential to a recovery, but the openness and notoriety of defendant's possession under a claim of title is not of itself a defense, unless such claim is of a valid title, and made in good faith.

Appeal from circuit court, Cole county; NOAH M. GIVAN, Judge.

On rehearing. For former opinion, see 4 S. W. Rep. 112. Proceeding by G. W. A. Gordon, administrator, etc., of W. H. Eans, deceased, against Maria L. Eans, widow of said decedent, to recover assets of the estate alleged to have been embezzled by defendant. The probate court, where it was originally brought, rendered judgment for plaintiff, and defendant appealed to the circuit court, which reversed the judgment, and dismissed the case. On appeal to the supreme court this judgment was reversed, and the cause remanded. 79 Mo. 53. The retrial resulted in a verdict for defendant, and plaintiff appeals. After the decision on the second appeal, affirming the judgment supra, the plaintiff obtained a rehearing.

Edwin Silver and A. M. Hough, for appellant. Smith & Krouthoff and Edwards & Davidson, for respondent.

RAY, C. J.

This case is before us for the third time; in the present instance, on motion for rehearing, which was sustained as to the question of jurisdiction only. The case was originally commenced in the county court, which at that date had probate jurisdiction, under sections 7, 10, and 11 of second article of the administration law, (1 Wag. St. p. 85,) where plaintiff had judgment, from which defendant appealed to the circuit court, where, upon a trial de novo, the proceeding was dismissed for want of jurisdiction, from which the plaintiff appealed to this court, where the judgment of the circuit court was reversed, and the cause remanded for a retrial, with directions. 79 Mo. 53.

There seems to be considerable misapprehension as to the scope and meaning of that opinion; as to what it has or has not decided, or attempted to decide; owing, doubtless, in part, to the want of careful attention and consideration of the peculiar facts as shown by the evidence of the case; the instruction given at the instance of the defendant, as well as that given by the court on its motion; and also in part to the want of accuracy and clearness in some of the language used by the court, as well as the use of somewhat inaccurate, unadvised, and misleading terms in some parts of said opinion, relative to the openness and notoriety of defendant's claim and possession of the property in dispute.

As to the facts of the case. There is no question as to the death of defendant's husband, the appointment of his administrator, and that at and prior to the time of his death he had been actively engaged in merchandise and other business operations, conducted in his own name, at Russelville, and at the time of his death, was at least in the apparent possession and ownership, among other things, of a stock of goods, chattels, money, promissory notes, accounts, certificates of deposit, issued by the National Exchange Bank of Jefferson City, Mo., and the First National Bank of Jefferson City, Mo., certificates of shares of stock in a certain bank, deeds of trust, securing promissory notes, etc., and title deeds to real estate, etc., all of which were, on their face, payable to or in the name of said deceased. All this property, thus evidenced, it is conceded, on the death of the husband came into the possession and control of the defendant, his widow, and so remained at the time of filing said affidavit by the administrator under said section 7 of the statute, and also at the time of the trial before the county court, and also at the subsequent trial de novo in the circuit court, and that she openly held the same under claim or color of title thereto. There was no pretense of any "concealment" of the property on her part, within the meaning of said section 7 of the statute, and the only question was one of "embezzlement" of the property in question by the defendant within the meaning of the statute in question. Such was the condition of things when the defendant was brought before the probate court, and subsequently before the circuit court, to answer said charge of embezzlement by the said administrator, when the circuit court gave, at defendant's request, the following instruction: "(4) It is necessary in this case for the plaintiff to prove that the defendant has embezzled or concealed the property of W. H. Eans, deceased, charged in the affidavit, and an open and notorious possession of the property, under claim of ownership, is neither embezzlement nor concealment, within the meaning of the law; and if the court believes from the evidence that defendant is in the open and notorious possession of the property named in the affidavit under claim of ownership, then the county court has no jurisdiction, and the complaint ought to be dismissed." The court, of its own motion, also gave the following additional declaration of law: "If the court finds from the evidence that the property alleged by the plaintiff to be concealed and embezzled by the defendant, Mrs. Eans, is held by her under claim or color of right, as her separate estate, and that to settle the respective rights of the administrator and the defendant to the property, an action at law or suit in equity is necessary, then the county court, as a probate court, had no jurisdiction to entertain this proceeding, and the complaint ought to be dismissed." And thereupon the court accordingly refused to try the cause, and dismissed the complaint for want of jurisdiction, from which plaintiff appealed to this court, where the court on the first appeal rendered the opinion (79 Mo. supra) which, as well as that rendered on the second appeal, is here complained of for want of jurisdiction in said probate court.

Is that complaint, under the admitted facts of the case and the rulings of the trial court, when carefully considered, well founded? It seems to me, clearly not. When carefully considered, the undisputed facts and face of the papers themselves make out at least a prima facie case of embezzlement against the defendant, which the trial court could not ignore upon the simple claim of title and open possession of the property by the defendant, without some further inquiry as to its good faith and validity. Such a claim on her part, without more, it seems to me, under the prima facie case thus made by the admitted facts themselves, could not justify the probate court in refusing to try the case, for the sole purpose of ascertaining her guilt or innocence of the embezzlement charged, and dismissing the complaint as it did; nor could such a claim, of itself, deprive the court of its jurisdiction and duty — for the purpose aforesaid — to hear and try whether her said claim was in fact in good faith and well founded, or a mere pretense. If it could, all that a defendant, when brought before the court to answer such a charge, would have to do, would be simply to interpose a claim of title and open possession, and thereby deprive the court of all jurisdiction to inquire into its truthfulness or validity for the purpose aforesaid. Such, manifestly, is not the law. And that, when carefully examined, is just what the trial court did in this instance, and nothing more. Under the last of the instruction heretofore set forth, the court manifestly held that "if the property alleged to be concealed and embezzled by defendant is held by her under claim or color of right as her separate property, and that to settle the respective rights of the administrator and defendant to said property, an action of law or suit in equity is necessary, then the court has no jurisdiction to entertain this proceeding, and the complaint ought to be dismissed." It is not very clear exactly what the court meant by this instruction, but if it means (as it appears to mean) that "if an independent action at law or suit in equity is necessary to settle the respective rights of the administrator and defendant to the property in question," then the probate court has no jurisdiction to entertain the proceeding in question, then the instruction is misleading and erroneous, for that was not the question before it. The sole question was: Was the defendant guilty of embezzlement; that is, had she "fraudulently appropriated to her own use money or property intrusted to her care by another?" Bouv. Law Dict. 586; Webst. Dict. 439. This proceeding, it must be remembered, is quasi criminal in its nature; its object and purpose being to discover and...