In re Franz' Estate

Decision Date13 June 1949
Docket Number41275
Citation221 S.W.2d 739,359 Mo. 362
PartiesIn Re the Estate of Sophie Franz, Deceased. Claim of G. A. Franz and G. A. Buder
CourtMissouri Supreme Court

Rehearing Denied July 11, 1949.

Appeal from Circuit Court of City of St. Louis; Hon. James E McLaughlin, Judge.



The probate court properly dismissed a claim of trustees for compensation against the estate of the life tenant. The notice of appeal was timely.

Harry C. Blanton, Taylor Sandison and G. A. Buder, Jr., for appellants.

(1) The claim is clearly for the reasonable value of services rendered by claimants as trustees, and is under the law entirely sufficient. In re Hukreides Estate, 172 S.W.2d 824; Blackwell v. De Arment's Estate, 300 S.W. 1035; Joseph v. Joseph, 164 S.W.2d 145. (2) The claim is not founded upon contract or upon a written instrument, and is not founded upon the trust conveyance. But, even if it could be so construed, it is nevertheless sufficient since it also clearly states a claim to recover on quantum meruit for the services alleged to have been rendered. Claimants can always under the law abandon a contract and recover upon quantum meruit. Laughlin v. Boatmen's Natl. Bank, 354 Mo. 467, 189 S.W.2d 974; Savage v. Michalon's Est., 176 S.W.2d 626; Lauf v. Wiegersen, 17 S.W.2d 269; Cases under (1). (3) The statute requiring the filing of a written instrument with a claim applies only where the claim is founded upon the instrument; it has no application where, as here, the claim is for the reasonable value of services rendered, and reference to the trust instrument was merely as inducment and to describe the services rendered. Secs. 185, 194, R.S. 1939; Britian v. Fender, 116 Mo.App. 93, 93 S.W. 179; Lillard v. Wilson, 178 Mo. 145, 77 S.W. 74. (4) The court erred in dismissing the claim, for the reason that the claim shows upon its face that the services rendered by claimants as trustees, in managing and administering the trust property, included the performance of services, duties and obligations which the deceased, as life tenant, owed and was required under the law to render to the remaindermen and to the remainder property in order to preserve and protect it. Fiske v. Buder, 125 F.2d 841; In re Buder, 217 S.W.2d 563; Farmers' Mutual Fire, etc., Co. v. Crowley, 354 Mo. 649, 190 S.W.2d 250; Bullock v. Peoples Bk. of Holcomb, 351 Mo. 587, 173 S.W.2d 753. (5) The court erred in failing and refusing to find and adjudge that any question of jurisdiction and of sufficiency of the claim was waived by the acknowledgment of service of the claim executed in writing by the executor of the estate. The statute applies to every claim and contains no exceptions. Secs. 185, 196, R.S. 1939; Waltemar v. Schnick's Est. (Woltemahr v. Doye), 102 Mo.App. 133, 76 S.W. 1053. (6) The statute required this claim, wherein G. A. Franz and the executor were joint claimants, to be presented to the executor; and necessarily permit it to be waived in writing by the executor. (7) The court erred in treating the claim as if it were the sole, several and individual claim of G. A. Buder, and in ignoring and disregarding the fact that it is the joint claim of Arthur U. Simmons, Administrator of the estate of G. A. Franz, deceased, and G. A. Buder. The claim of trustees for compensation is a single claim, and the trustees must act jointly. Walker v. Jones, 337 Mo. 750, 85 S.W.2d 876; Denny v. Guyton, 331 Mo. 1115, 57 S.W.2d 415; Kilpatrick v. Robert, 278 Mo. 257, 212 S.W. 884; City of St. Louis v. Ruecking Const. Co., 212 S.W. 887. (8) The special statute refers only to the sole claim of an executor against the estate, and the requirement of the statute is met by filing claim in the probate court. Sec. 202, R.S. 1939; Williamson v. Estate of Cooksey, 47 Mo. 299. (9) The court erred in failing to find and adjudge that any question of jurisdiction was waived by Henry A. Baker, administrator ad litem, appearing in the probate court and waiving notice on said claim; and by his general appearance in the probate court in agreeing to continuance of the claim. Boggess v. Cunningham's Est., 207 S.W.2d 814. (10) The court erred in finding and adjudging that claimants were guilty of laches in asserting the claim within the one-year period of limitations. Laches applies only to defeat an equitable, not a legal, action, and is always dependent upon facts which produce an inequitable result to the party asserting laches. Tokash v. Workmen's Comp. Comm., 346 Mo. 100, 139 S.W.2d 978; Schwind v. O'Halloran, 346 Mo. 486, 142 S.W.2d 55; Lustenberger v. Hutchinson, 343 Mo. 51, 119 S.W.2d 921; Stephenson v. Stephenson, 351 Mo. 8, 171 S.W.2d 565. (11) The court erred in finding and adjudging that there was merit in the contention of respondents that the claim of the trustees for the reasonable value of their services could and should have been determined only by a court of equity, and in declining jurisdiction of the claim. Hoffmann v. Hoffmann, 126 Mo. 486, 29 S.W. 603; Hammons v. Renfrow, 84 Mo. 332; State ex rel. Stetina v. Reynolds, 286 Mo. 120, 227 S.W. 47; In re Ermeling's Est., 119 S.W.2d 755; In re Ermeling's Est., 131 S.W.2d 912; State ex rel. North St. Louis Trust Co. v. Wolfe, 343 Mo. 580, 122 S.W.2d 909; Smith v. St. Louis Union Trust Co., 340 Mo. 979, 104 S.W.2d 341.

Henry A. Baker, Jesse T. Friday and E. J. Doerner for respondents.

(1) Courts of equity have exclusive jurisdiction to allow compensation to trustees of a non-testamentary trust. Johnston v. Grice, 272 Mo. 422, 199 S.W. 409; 65 C.J. 912, sec. 808; 65 C.J. 932; 4 Bogert on Trusts, p. 2879; In re Patton, 175 N.Y.S. 598, 106 Misc. 113; Goode v. Goode, 38 S.W.2d 691; Hazard v. Coyle, 58 A. 987, 26 R.I. 261; 4 Bogert on Trusts, p. 2800, chap. 40, sec. 966; Tittsworth v. Tittsworth, 152 A. 869; In re Parsons, 18 Fed. Cas. 1263. (2) Absent an agreement, the settlor of a trust or his estate, after his death, is not personally liable for trustees' compensation for services rendered, as trustees, pursuant to the terms of the trust. Soberanes v. Espinosa, 280 P. 176, 100 Cal.App. 87; Patton v. Cone, 1 Lea (Tenn.) 14, 69 Tenn. 14. (3) If the probate court had no jurisdiction of appellants' claim, the circuit court can acquire none on appeal. In re Ford, 157 Mo.App. 141, 137 S.W. 32; In re Ermeling's Estate, 131 S.W.2d 912; State ex rel. Townsend v. Mueller, 330 Mo. 641, 51 S.W.2d 8; In re Mills' Estate, 162 S.W.2d 807, 349 Mo. 611.

Westhues, C. Bohling and Barrett, CC., concur.


On May 14, 1931, G. A. Franz and G. A. Buder filed a claim in the Probate Court of the City of St. Louis Missouri, in the Estate of Sophie Franz, deceased, wherein they asked compensation as trustees in the sum of $ 810,001.22. The Probate Court on July 19, 1943, dismissed the claim and the trustees appealed to the Circuit Court where, on August 19, 1948, the claim was likewise dismissed and the trustees appealed to this court.

Respondents have briefed a number of points wherein they urge the action of the trial court should be sustained. We need only discuss one point and that is the question of the jurisdiction of the probate court over the subject matter of the claim. Before we consider that question we must rule on the respondents' motion to dismiss the appeal. Respondents assert that the dismissal of the claim in the circuit court on August 19, 1948, was with prejudice and, therefore, became a final judgment 30 days after the date of the order. On August 26, 1948, appellants filed a motion to set aside the order of dismissal which was overruled on October 21, 1948. Appellants filed a notice of appeal on October 27, 1948. Respondents say that our code does not authorize a motion for new trial to be filed when an order of dismissal is made on the basis of insufficiency of a petition; that, therefore, the filing of the "Motion To Set Aside" did not carry the case over the 30 days and the judgment became final on September 18, 1948; and that the notice of appeal was filed too late. We cannot agree with respondents. Our Rule 3.24 pertaining to the time when judgments become final for the purpose of an appeal refers to motions for new trial and other after trial motions. The rule contains the following:

"The filing and disposition of such motions has the same effect as to time for appeal in all cases whether or not the motion has any function other than to seek relief in the trial court."

The motion filed in this case was nothing more than a motion asking the trial court to reconsider its ruling and to set aside the dismissal order. It was, in fact, simply a motion for rehearing or new trial. Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55, cited by both parties in support of their respective contentions, ruled this question. See 200 S.W.2d l.c. 63 (8, 9), where it was expressly held that a motion for new trial could be filed in a record proper case and that the filing of such a motion would postpone the finality of the judgment. See also Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25, and Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907, l.c. 911 (8-11). The motion to dismiss is overruled.

We are of the opinion that the probate judge was right when he dismissed the claim for want of jurisdiction. Appellants by their claim filed in the probate court seek 5% of the corpus of the trust estate as compensation for services rendered as trustees. This is evidenced by the petition filed with the claim. We quote therefrom:

"Your petitioners further represent that under the terms of said trust conveyance they were to be compensated for their services as such Trustees in the handling and management and administration of said properties, funds securities and assets of said estate, as aforesaid,

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9 cases
  • Simmons v. Friday
    • United States
    • Missouri Supreme Court
    • September 12, 1949
    ... 224 S.W.2d 90 359 Mo. 812 Arthur U. Simmons, Administrator c.t.a. of the Estate of Gustav A. Franz, Deceased, and G. A. Buder, Appellants, v. Jesse T. Friday, Administrator ad Litem of the Estate of Sophie Franz, Deceased, ... ...
  • McElroy v. Eagle Star Group, Inc.
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    • Missouri Court of Appeals
    • January 25, 2005
    ...v. United Parcel Service, Inc., 854 S.W.2d 390 (Mo. banc 1993), where our Supreme Court reaffirmed its decision in In re Franz' Estate, 359 Mo. 362, 221 S.W.2d 739 (1949), which interpreted the predecessor to Rule 81.05 and held that "a motion to set aside a default judgment `was nothing mo......
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    • United States
    • Missouri Court of Appeals
    • November 1, 1962
    ...and Trustees 2d Ed., Sec. 975, p. 283; In re Buder, 358 Mo. 796, 217 S.W.2d 563, 573, and cases cited 1. c. 573; In re Franz' Estate, 359 Mo. 362, 221 S.W.2d 739, 741, 742; sec Fiske v. Buder (8th Cir.), 125 F.2d 841. We look with jaundiced eye upon the act of the trustees in paying themsel......
  • Frech's Estate, In re
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    ...517; Butler v. Lawson, 72 Mo. 227; Dietrich v. Jones, 227 Mo.App. 365, 53 S.W.2d 1059, and cases cited, loc. cit. 1062; In re Franz' Estate, 359 Mo. 362, 221 S.W.2d 739. These decisions hold that the probate court has no power to establish, declare, enforce and execute trusts or supervise T......
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