Haley v. Horjul, Inc.

• Decision Date: 11 July 1955
• Docket Number: No. 1,No. 44704,44704,1
• Citation: Haley v. Horjul, Inc., 281 S.W.2d 832 (Mo. 1955)
• Parties: Henrietta HALEY (Plaintiff), Respondent, v. HORJUL, Inc., a Corporation, Sol Weisman, Bertha D. Schneider, Harold S. Horwitz, and Maurice Cummins, Administrators of the Estate of Julius Horwitz, Deceased, et al. (Defendants), Appellants
• Court: Missouri Supreme Court

Page 832

281 S.W.2d 832

Henrietta HALEY (Plaintiff), Respondent, v. HORJUL, Inc., a Corporation, Sol Weisman, Bertha D Schneider, Harold S. Horwitz, and Maurice Cummins Administrators of the Estate of Julius Horwitz, Deceased, et al (Defendants), Appellants.

No. 44704.

Supreme Court of Missouri, Division No. 1.

July 11, 1955.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 12, 1955.

Jerome W. Sandweiss, Jerome W. Sidel, Max W. Kramer, Jerome Kalishman, M. A. Shenker, Bernard J. Mellman, St. Louis, for appellants.

Thomas R. McGinnis, St. Louis, John H. Haley, Sr., Bowling Green, for respondent.

HOLMAN, Commissioner.

Plaintiff (respondent) Henrietta Haley, instituted this action seeking (in court one) the appointment of a receiver pendent lite of Horjul, Inc., a Missouri corporation, and a judgment that said corporation be dissolved, its assets liquidated and the proceeds distributed among the owners thereof. The petition contained three other counts but we are not here concerned with the relief sought therein. The trial court entered an order to show cause as to why a receiver pendente lite should not be appointed and upon a hearing the court appointed John P. English as receiver pendente lite of said corporation. A motion to revoke said order of appointment having been overruled, Horjul, Inc. and various other defendants have duly appealed. The statute provides that an appeal may be taken from such an order. Section 512.020. (All statutory references herein are to RSMo 1949, V.A.M.S.

We have jurisdiction of this appeal since the defendants (appellants) seek a construction of Article V, Section 16, Constitution of Missouri, V.A.M.S., relating to the jurisdiction of probate courts within this state. Article V, Section 3 Constitution of Missouri, V.A.M.S. We retain jurisdiction even though, in our final disposition of the case, we have found it unnecessary to decide this question. Skinner v. St. Louis, I. M. & S. Railroad Co., 254 Mo. 228, 162 S.W. 237.

No evidence was heard in the trial court at the hearing which resulted in the appointment of the receiver pendente lite. The transcript of the hearing consists of an extended colloquy between the court and counsel for the various parties concerning the facts and legal principles applicable. However, there seems to be no dispute about the basis facts. Some of the material in the briefs and statements of counsel may be considered as admissions and will be used in presenting such facts as may be required for an understanding of the issues here presented.

Julius Horwitz died intestate on December 7, 1952, while a resident of the City of St. Louis. He left surviving forty-six nieces, nephews, grandnieces and grandnephews as his heirs. The probate court appointed of defendants Sol Weisman, Bertha S. Schneider, Harold S. Horwitz and Maurice Cummins as administrators of his estate. They duly qualified and have since been so acting.

The principal asset in the estate of said decedent was all of the capital stock (100 shares) of defendant Horjul, Inc. The assets of this corporation consist primarily of about 90 parcels of rent-producing real estate. The stock of said Horjul, Inc. was inventoried at the appraised value of $506,618.94. The administrators proceeded to vote the shares of said stock and each was elected to the Board of Directors and as an officer of said corporation and they have since been operating its affairs. In March, 1954, the administrators received an order of the probate court authorizing them to surrender to defendant Horjul, Inc., 27 shares of its stock for the purpose of securing funds for the payment of federal estate taxes. Shortly thereafter the said administrators obtained another order from the probate court granting them authority to sell said 73 remaining shares for not less than $287,887.50 or, in the alternative, to liquidate said corporation and sell the assets at private sale for not less than the afore-mentioned amount.

Plaintiff is one of the forty-six heirs of Julius Horwitz. She made Horjul, Inc., the administrators and all of the heirs of the Horwitz estate defendants in this suit. Her petition, after alleging the facts substantially as we have stated them herein, alleges that the conduct of the administrators in electing themselves as directors and officers of the corporation and taking control of same was unlawful. It is further alleged that they are proceeding to liquidate said corporation and sell said real estate under a void order of the probate court and, in gencral, that they have 'so unlawfully interlaced their activities in dealing with the affairs of the personal estate as individuals, administrators and pseudodirectors that they have woven such a tangled web that can only be untangled by a court of equity, there being no adequate remedy at law.' She prays for the appointment of a receiver pendente lite; that the administrator-directors be required to make full accounting of their activities in connection with the affairs of said corporation and for a dissolution and...