Kansas City Theological Seminary v. Kendrick

• Decision Date: 29 April 1918
• Docket Number: No. 12845.,12845.
• Citation: 203 S.W. 628
• Parties: KANSAS CITY THEOLOGICAL SEMINARY v. KENDRICK.
• Court: Missouri Court of Appeals

203 S.W. 628

KANSAS CITY THEOLOGICAL SEMINARY v. KENDRICK.

No. 12845.

Kansas City Court of Appeals. Missouri.

April 29, 1918.

Appeal from Circuit Court, Johnson County; A. A. Whitsett, Judge.

"Not to be officially published."

Suit by the Kansas City Theological Seminary against J. M. Kendrick. Demurrer to defendant's answer overruled, and plaintiff appeals. Affirmed.

Ed. E. Aleshire, of Kansas City, for appellant. J. W. Suddath & Son, of Warrensburg, for respondent.

BLAND, J.

On August 31, 1014, Jane Mock, a resident of Johnson county, Mo., died intestate. However, prior to her death she attempted to execute a will making various bequests to relatives and charitable institutions, one of which was a gift of $1,000 to plaintiff. The will was not witnessed, and therefore was ineffective. After her death her heirs executed the following power of attorney to defendant:

"Know all men by these presents, that we, C. F. Nissen, Hattie Shepherd, Alice Charles, W. M. Nissen, S. J. Nissen, M. E. Laugenour, B. S. Nissen, Stella Montague, Harry Nissen, Fred Nissen, Clara Ellis, Claude Nissen, Frank Nissen, and Jennie Nissen, being the heirs, and only heirs at law of Jane Mock, deceased, late of Knobnoster, Johnson county, Missouri, do by these presents appoint J. M. Kendrick, of Knobnoster, Missouri, our true and lawful attorney, for us and in our names to make settlement with the public administrator of Johnson county, Missouri, of any and all sums due us from the estate of the said Jane Mock, deceased, and to collect from the said administrator, and from any person having in charge the said estate, any and all sums that may be due us from the said estate, and to receipt therefor, the same as if we were present and acting in person, and to do any and all things necessary to be done in the settlement of the said estate, that we might or could do if present and acting in person. This power of attorney is executed and delivered for the purpose of making it possible for the said J. M. Kendrick to carry out the terms and provisions of a certain written will, left by the said Jane Mock, deceased, a copy of which is hereto attached, which said will was refused probate for failure of witnesses, as provided by law. Granting to the said J. M. Kendrick full power of substitution."

After the execution of this power of attorney defendant collected the money mentioned therein from the public administrator, proceeded to carry out the terms of the will, and had paid nearly all of the bequests, but refused to pay the bequest to plaintiff. Thereupon plaintiff brought this suit for the sum of $1,000. Defendant's answer contained a number of allegations, including one that the power of attorney mentioned above had been revoked by said heirs by a paper denominated a "Revocation and Ratification," wherein all the acts of the defendant were ratified by said heirs, and, for various reasons assigned but not necessary to set out here, they revoked the power of attorney to defendant to pay over the bequest of $1,000 to plaintiff, and prohibited him from doing anything further with the funds that came into his hands other than had already been done by him. To this answer plaintiff filed a demurrer, and the court overruled the same. Thereupon, after taking the proper steps, plaintiff appealed.

It is the contention of plaintiff that the power of attorney as above set forth made the defendant a trustee for the purpose of collecting from the public administrator the money of deceased, empowering and directing the defendant to pay the bequests mentioned in the will, including the $1,000 to plaintiff.

Whether or not the power of attorney created a trust...