Harvey v. Schwettman

• Decision Date: 22 November 1915
• Docket Number: No. 11772.,11772.
• Citation: 180 S.W. 413
• Parties: HARVEY et al. v. SCHWETTMAN et al.
• Court: Missouri Court of Appeals

180 S.W. 413

HARVEY et al. v. SCHWETTMAN et al.

No. 11772.

Kansas City Court of Appeals, Missouri.

November 22, 1915.

Appeal from Circuit Court, Benton County; C. A. Calvird, Judge.

"Not to be officially published."

Action by Margaret Harvey and others against F. Schwettman and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

H. P. Lay, of Warsaw, for appellants. W. S. Jackson, of Warsaw, and G. W. Barnett, of Sedalia, for respondents.

JOHNSON, J.

Plaintiffs, as remaindermen under the will of Benjamin Fryback, who died in Benton county in April, 1894, brought this suit in the circuit court of that county January 2, 1913, to compel an accounting and settlement by defendants F. Schwettman and George Maglaughlin, trustees under the will, and the removal of said trustees without compensation. Other remaindermen who did not appear as plaintiffs were joined as defendants. A demurrer to the petition was filed by the trustees at the March, 1913, term, to which the suit was returnable. As we understand the record, the demurrer raised the question of a defect of parties and, being sustained, the cause was continued to the July, 1913, term, when, the defect having been remedied by an amendment of the petition and the bringing in of all necessary parties, the cause was at issue. At the instance of plaintiff the court, at that term, entered of record an order that the trustees file an account of their trust, in vacation, and not later than October 1, 1913, but the order was not obeyed, and at the following December term, the court, on motion of plaintiffs, made a rule on the trustees to file their account on or before December 25th, and set the cause for trial January 5, 1914. This rule was not complied with, and the court extended the time for filing the account to the March term, and, the trustees still failing to obey the rule, the court at the July term entered an interlocutory judgment by default against the trustees and a rule upon them to file their account not later than July 18th. This rule likewise was disobeyed, and nothing was done until the following December term, when they filed an insufficient statement of the account, which the court would not accept as a compliance with the rule, and entered an order that a sufficient account be filed by December 28, 1914. Performance of these judicial mandates was not rendered by the trustees until March 22, 1915, when they filed a proper account. This account or settlement was thoroughly inquired into at the subsequent trial at which the whole management of the trust estate from its beginning (August 9, 1901) to the filing of the account was the subject of detailed inquiry and judicial investigation. At the close of the hearing the court found:

"That the account as filed by defendant trustees is correct as to all items of charges and credits therein except as to the charge for compensation of said trustees."

The trustees claimed compensation for 14 years at $150 per year for both, but the court refused Schwettman any remuneration, and allowed Maglaughlin $75 per year. Further finding that both trustees had been guilty of acts amounting to a breach of trust, the court ordered their removal, and appointed a single trustee in their stead. The reasons assigned by the court for these rulings were: First, that Schwettman, owing to his removal to Texas shortly after the beginning of the trust period, "has not given his time and attention to his duties as such trustee"; and, second, that the failure of the trustees to render an account to the beneficiaries until suit wag filed against them, and their continued and inexcusable disobedience of the court's orders to make settlement, constituted a breech of trust which authorized their removal and the reduction of their compensation.

The estate left by the testator, Benjamin Fryback, consisted of 714 acres of land in Benton county and personal property appraised at $9,096.80. The will gave his widow a life estate in all the property, and the remainder at her death to their children and grandchildren, all of whom appear in this action, either as plaintiffs or defendants. Schwettman and Maglaughlin were named as executors and, following the close of the administration of the estate, were to be invested with the legal title to all the property, and were to hold and manage it—

"in trust for the execution of my will with power to sell and dispose of the same at public or private sale at such times and upon such terms and in such manner as to them shall seem meet, provided, however, that if they do not succeed to sell all my real and personal property within three years after the decease of my wife, then all the balance shall be sold at public sale to the highest bidder."

At the close of the administration in the probate court defendant ...