Hammons v. Renfrow

• Decision Date: 31 October 1884
• Citation: 84 Mo. 332
• Parties: HAMMONS v. RENFROW et al., Administrators, Plaintiffs in error.
• Court: Missouri Supreme Court

84 Mo. 332

HAMMONS

v.RENFROW et al., Administrators, Plaintiffs in error.

Supreme Court of Missouri.

October Term, 1884.

Error to Moniteau Circuit Court.--HON. E. L. EDWARDS, Judge.

AFFIRMED.

Draffen & Williams and Moore & Williams for plaintiffs in error.

(1) The circuit court tried the cause and rendered its judgment on the theory that the proceeding was an equitable one. The probate court had no equitable jurisdiction. Walker v. Walker, 25 Mo. 367; Butler v. Lawson, 72 Mo. 244; First Baptist Church v. Robertson, 71 Mo. 326. (2) Plaintiff had no valid claim against the estate. The money, as soon as it came into the possession of the wife, became the individual property of the husband. Schouler's Dom. Relations, §§ 80-84; Walker's Adm'r v. Walker, 25 Mo. 375; Tillman v. Tillman, 50 Mo. 40; Woodford v. Stephens, 51 Mo. 443; Kidwell v. Kirkpatrick, 70 Mo. 214; Spencer v. Vance, 57 Mo. 427. Tyler on Infan. and Cov., p. 361. (3) There is not sufficient legal evidence to establish a trust against Renfrow. Loose conversations cannot be construed into a promise. Woodford v. Stephens, supra; Kay v. Wilson, 64 Mo. 493; Lane v. Ewing, 31 Mo. 75. The parties are dead and their declarations should be clear and unquestionable to create a trust. Ringo v. Richardson, 53 Mo. 385; 1 Greenl. Ev., secs. 45 and 200.

L. F. Wood and Smith & Krauthoff for defendant in error.

(1) The receipt of plaintiff and his brother was not binding on them, they being minors, and besides a receipt is not evidence of a conclusive character. (2) Plaintiff is the only person entitled to any part of the fund; the evidence being clear that the money was to be paid to plaintiff's mother's children, her “boys,” when they became twenty-one years of age. Plaintiff is the only one who arrived at that age, the others having died childless while yet minors. (3) The sale of the farm at the request of Renfrow and the reception of the money from his wife is a sufficient consideration to support the agreement made by Renfrow to loan the money for the use of his wife's children, and pay it over to them when they became of age. Walker v. Walker, 25 Mo. 374; Lawson v. Lawson, 46 Mo. 82; Denings v. Williams, 26 Conn. 226; Morisson, adm'r, v. Morisson, 4 Met. 84; Haber v. Haber, 10 Ohio 371; 2 Story's Eq. (12th Ed.) sec. 1380. (4) It was not necessary for plaintiff to seek his remedy in equity. The demand was really a legal one for money had and received. Lockwood v. Kelsea, 41 N. H. 185; Roberts v. Mosely, 51 Mo. 282; Bair v. Cubbage, 52 Mo. 404; 2 Story's Eq., sec. 843; Insurance Co. v. Roulet, 24 Wend. 505; Rogers v. Daniell, 8 Allen 343; Fanelly v. Ladd, 10 Allen 127; 1 Chitty Pl. (16 Am. Ed.) p. *362, note j; Lathrop v. Bampton, 31 Cal. 17; Brown v. Lambert, 33 Gratt. 256; Oliver v. Piatt, 3 How. 333; Law v. Thorndike, 20 Pick. 317; Johnson v. Ames, 11 Pick. 173; Mills v. Post, 70 Mo. 426; S. C. 7 Mo. App. 519; Trecotheck v. Austin, 4 Mason C. C. 29, 30. By the sixth section of the act establishing the probate court of Moniteau county, that court was invested with “exclusive original jurisdiction * * * to hear and determine all suits and other proceedings instituted against executors and administrators upon any demand against the estate of the testator or intestate, subject to appeal to the circuit court.” (Acts of 1849, pp. 431, 432.) So that upon the facts of this case, the probate court alone had original jurisdiction of it. Cones v. Ward, 47 Mo. 289; Dodson v. Scroggs, 47 Mo. 287; Titterington v. Hooker, 58 Mo. 593; Pearce v. Calhoun, 59 Mo. 271; Wernecke v. Kenyon, 66 Mo. 283; Ensworth v. Curd, 68 Mo. 282; Julian v. Ward, 69 Mo. 153; Wernse v. McPike, 76 Mo. 249. The term demand is one of the most comprehensive in law. Mayberry v. McClurg, 51 Mo 256.

RAY, J.

This cause was begun in the probate court of Moniteau county in November, 1878, for the allowance of a demand against the estate of Mark Renfrow, deceased, and was tried and determined upon the following amended account:

Estate of Mark Renfrow to Wm. H. Hammons, Dr.

To money received by Mark Renfrow in trust for William H. Hammons, Charles P. Hammons and Burtie Hammons, loan to W. Renfrow, April 3, 1867, at 10 per cent. compound interest

$ 960.00

Interest on same to February 19, 1876

778.00

$1,738.00

CREDITS.

February 19, 1876, by amount paid Wm. H. Hammons and Charles P. Hammons

$ 536.18

$1,201.82

Interest to December, 1878

363.80

$1,565.62

On a trial in the probate court said account was allowed, in the sum of four hundred and eighty-three dollars, from which defendants appealed to the circuit court, where, upon a trial anew, the plaintiff had an allowance for the sum of $1,300, from which the cause is brought here by writ of error by the defendants.

The material facts appearing in evidence are, in substance, as follows: In 1866, Mark Renfrow, the deceased, married Mrs. Hammons, the mother of the plaintiff. At the date of the marriage Mrs. Hammons was a widow with three children, all boys: Wm. H., the plaintiff, Chas. E. and Asa Burt Hammons. There were, also, one half brother, and two half sisters, of the Hammons boys, the children of her first husband by a former marriage. Asa Burt Hammons died in the lifetime of his mother, and Charles after her death; both unmarried and without issue. The half brother, John C. Hammons, also died unmarried and without issue; the half sisters, Mrs. Graves and Mrs. Rector, are still living. At the date of said marriage, said Renfrow also had children by a former marriage, and was possessed of a good property, and the plaintiff's mother then owned some personal property and also a farm of eighty acres in Cooper county, purchased out of the proceeds of her dower in her former husband's estate. There was no ante-nuptial agreement between them, nor any issue of this marriage. Mrs. Chiles, the sister of Mrs. Renfrow, and aunt of the plaintiff, testified on behalf of plaintiff that some months after her marriage Mrs. Renfrow sold said tract of land, or farm in Cooper county to one David Shell, and received the purchase money herself; that she received it in her own hands, wrapped it up and said that it was for her little boys; that she was present when she made the sale and that she showed her the money, in her hands, and said “this is for my little boys.” This witness further said that on one occasion, in February, 1873, when Renfrow was going for the doctor, she heard her sister ask Renfrow what he was going to do about the money, and that she thought it ought to be made secure, and that Renfrow said that she need not be uneasy, that the boys should have the money; but he thought he ought to have the interest to pay doctors' bills. This witness also said that Mark Renfrow loaned out this money, but she did not remember the names of the parties to whom it was loaned. It does not appear by direct testimony precisely when the husband acquired the possession of this money from the wife, or what occurred between them, at the time, in reference thereto, if anything.

Brizindine, a witness for plaintiff, testified that after Mark Renfrow was married to Mrs. Hammons, plaintiff's mother, he desired to borrow some money and went to Mr. Renfrow to borrow it; he said he had some money, and said he had a note, drawn up for compound interest. “I told him I didn't want to borrow it and give such a note; then he told me the reason why he had the note drawn that way was because the money he proposed to loan belonged to the Hammons heirs, the children of his wife by a former husband; in connection with this he said he was so particular because this was their money, and he wanted to let it out for their benefit that way; he said he had persuaded Lincy, his wife, it would be better to sell her land, and put out on interest, than to rent the place till they became of age. This was directly after the sale of his wife's land, as I understood it; this land was eighty acres she had bought in Cooper county, with money she had received from the sale of her dower interest in her former husband's land, and she was keeping it for her children; he said he had loaned money to James Renfrow, and had taken that kind of a note; he spoke of two amounts he had of that estate; can't say how much, but think he said he had loaned Renfrow between four hundred and six hundred dollars, and had four hundred dollars on hand; I couldn't be positive how much the place sold for, but have a slight recollection that it was $1,100.”” On cross examination, this witness further said that he only had one conversation with Mark Renfrow; it was some time before the death of his last wife; it was between 1870 and 1873; he didn't get the money from him; got it afterwards from Tom Renfrow, etc.

The record further shows that Renfrow, in loaning said money, took the notes payable to himself and secured by mortgage in his own name, and that he annually collected the interest thereon. There were two of said notes, one of date April 3, 1867, by J. P. Renfrow for five hundred dollars, at ten per cent., and the other by Thos. Pate, February 18, 1870, for five hundred dollars at ten per cent.

Pate testified, that in 1874 or 1875, after the death of Mrs. Renfrow and her son, Asa B. Hammons, the plaintiff, William Hammons, and his brother, Charles, went with him to see Renfrow about this money, when he made a payment of interest on said note, and that the following conversation and negotiations, in substance, ensued: After he had paid the fifty dollars interest, Mark Renfrow said: “Boys, I will keep this fifty dollars interest and let you have the principal.” William, the plaintiff, asked him if he didn't sell the Cooper county place for $1200, and he said yes, but there was a mortgage on it for two hundred dollars and twenty dollars interest, and twenty dollars taxes, leaving only nine hundred and sixty dollars; either I or William asked Renfrow how this note of mine was to be transferred to them, and he said they must pay him eighty dollars,...