Johnston v. Grice

• Decision Date: 03 December 1917
• Docket Number: No. 18786.,18786.
• Citation: 272 Mo. 423,199 S.W. 409
• Parties: JOHNSTON v. GRICE et al.
• Court: Missouri Supreme Court

199 S.W. 409

272 Mo. 423

JOHNSTON v. GRICE et al.

No. 18786.

Supreme Court of Missouri, Division No. 1.

December 3, 1917.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Suit by William J. Johnston against L. Anna Grice, and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

P. A. Griswold, of St. Louis, for appellant. Edwin S. Puller, of St. Louis, for respondents L. Anna Grice, Mathilda A. Puller, and Edwin S. Puller. Watts, Gentry & Lee, of St. Louis, for defendant W. B. Thompson.

BROWN, C.

The amended petition was filed April 3, 1914, against L. Anna Grice and Mathilde A. Puller in their personal capacity, and William B. Thompson and Edwin S. Puller as executors of the will of Mathilde Largue, deceased. The averments, so far as they are important to the questions here, are that Alexander Largue was guardian of two infants, and plaintiff, at his solicitation, was on his bond; in the year 1900 Largue was, by the probate court of the city of St. Louis, in which the guardianship was pending, removed, and William B. Thompson appointed in his stead; that he was found to be in default in his accounts $8,324.16, which the plaintiff was compelled to and did pay as his surety, in consideration for which Largue transferred and conveyed to him three notes, two of which were secured by deeds of trust on separate tracts of land in St. Louis county, together with five pieces of real estate in the city of St. Louis. The two deeds of trust were foreclosed, and plaintiff became the purchaser. While these transfers and conveyances were absolute, the plaintiff afterwards voluntarily promised Largue "that if he could save anything out of said property after payment of said liability and the costs of administering said estate, including a charge for his services, he would return same" to him.

Largue died on October 6, 1906, leaving a will in which John Grice and Anna Grice were made the residuary legatees, and plaintiff the executor. Plaintiff qualified, and inventoried as a part of the estate a residuary interest in all the said real estate remaining unsold. John Grice died in 1908, having assigned his interest in the estate to Mathilde Largue, and leaving a will in which defendant Mathilde Puller is named as residuary legatee, and defendants William B. Thompson and Edwin S. Puller as executors. Plaintiff took charge of said property in 1900 and administered it for 13 years, selling portions thereof, and applying the proceeds to the liability for which he held it, collecting rents, paying taxes and interest, for repairs, and the costs and expenses of prosecuting and defending suits, and for commissions on sales and loans negotiated on the property, for all of which he has charged in the account exhibited in connection with his petition $2,142.22 as compensation, and that there still remained in his hands the sum of $1,174.53, and three pieces of the real estate to which he still holds the title, subject to a deed of trust for $2,000 and interest thereon. The petition further states, in substance, that plaintiff has filed in the probate court his final settlement as executor of the estate of Alexander Largue, in which he has charged himself with said sum of $1,174.42, and that the defendant executors have filed exceptions thereto, claiming that they ought to have the further sum of about $2,000 in addition thereto. That each of the defendants Grice and Puller claims an interest in the remaining lands, the exact nature and extent of which plaintiff does not know, and that the defendant executors claim an interest in the said cash balance in his hands. The prayer for equitable relief is as follows:

"Wherefore, the premises considered, plaintiff prays the court first to approve plaintiff's account herein set forth and to award to plaintiff a reasonable compensation for his services in managing and caring for said property, and, second, to ascertain the parties entitled to whatever cash may remain in the hands of plaintiff out of the proceeds of the sale of said property, and their respective interests therein, and, third, to ascertain and determine the parties entitled to said three pieces of real estate still held by plaintiff, and their respective interests therein, and for such further orders and relief as to the court may seem just and equitable."

To this petition the defendants, with the exception of Thompson, filed a demurrer upon the ground that the petition does not state a cause of action, which demurrer was sustained and, the plaintiff declining to plead further, judgment was entered for the defendants. While the petition may be in-artificial, both in its charges and its prayer, it is plain that it has for its object an accounting in the circuit court with respect to a trust under which the plaintiff held certain property, both real and personal, conveyed to him by Alexander Largue, to be held, managed, and disposed of for the purpose of reimbursing the trustee on account of money advanced and services performed for the benefit of the beneficiary. The respondents do not question this in the brief and argument before us. On the contrary, the interest which they assert is not a legal interest, but one arising in equity out of property to which the plaintiff is invested with the legal title. Their only contention is that the jurisdiction to make the accounting resides in the probate court and not in the circuit court. They are perfectly willing to admit the trust...