Kennard v. Wiggins

• Decision Date: 06 November 1944
• Docket Number: 39035
• Parties: Elizabeth Liggett Kennard v. Charles Wiggins and Mississippi Valley Trust Company, Executors of the Estate of Ella L. Wiggins, Deceased, Appellants
• Court: Missouri Supreme Court

183 S.W.2d 870

353 Mo. 681

Elizabeth Liggett Kennard v. Charles Wiggins and Mississippi Valley Trust Company, Executors of the Estate of Ella L. Wiggins, Deceased, Appellants

No. 39035

Supreme Court of Missouri

November 6, 1944

Rehearing Denied December 4, 1944.

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Reversed.

Nagel Kirby, Orrick & Shepley and Lehmann & Allen for appellants.

(1) The original decree of February 5, 1940, was not a money judgment, and does not bear interest. 33 C.J., Judgments, sec. 38, p. 1102; Ex parte Farrarr's Estate, 13 S.C. 254; Oliver Finnie Grocery Co. v. Bodenheimer, 77 Miss. 415, 27 So. 613; Buffington v. Green, 281 Mo.App. 695, 285 S.W. 531; Robert v. Davis, 235 Mo.App. 974, 142 S.W.2d 1111; Woods v. Woods, 159 S.W.2d 320; Kelly v. City of Cape Girardeau, 230 Mo.App. 137, 89 S.W.2d 693; R.S. 1939, sec. 3228. (2) The court had no power by this supplemental decree to render a money judgment or to make an order converting the original decree into a money judgment. 30 C.J.S. Equity, sec. 586, p. 977. (3) It is inequitable to charge Mrs. Wiggins with any interest in addition to the interest actually earned on the income. Restatement of the Law of Trusts, sec. 207 (1), Comment (c), p. 568; Albert v. Sandford, 201 Mo. 117. (4) The St. Louis Union Trust Company as trustee for contingent and unascertained persons was liable for and properly paid the tax on the income being accumulated under the agreement between the plaintiff, Mrs McIntosh and Mrs. Wiggins to accumulate it and pay it over at the conclusion of the litigation to the persons determined to be entitled thereto. I.R.C., sec. 161 (1); R.S. 1939, sec. 11347; Ferguson v. Forstmann, 25 F.2d 47; Hart v. Commissioner, 54 F.2d 848; Buckley v. Commissioner, 66 F.2d 394; Commissioner v. Owens, 78 F.2d 768; Eustis v. Commissioner, 30 B.T.A. 820; Graham v. Miller, 137 F.2d 507; Goforth v. Commissioner, 32 B.T.A. 1206. (5) The trial court in the original decree did not adjudicate what the amount of income and interest earned thereon was. The determination in the original decree that the defendant, Mrs. Wiggins, had received the income and had deposited the same in a separate account was made in connection with the principal question, namely, whether she was liable to see that the income was turned over to the plaintiff, but that was wholly collateral to the question of the amount of the income and whether the income tax was properly paid thereon. The doctrine of res adjudicata does not apply to matters which are collateral to or which must be argumentatively inferred from the prior judgment. Ridgley v. Stillwell, 27 Mo. 128; Fish v. Lightner, 44 Mo. 268; State ex rel. v. Butler County, 164 Mo. 214; Duchess of Kingston's Case, Smith Leading Cases, 424; Hopkins v. Lee, 6 Wheat. 109, 5 L.Ed. 218; North Carolina Railroad Co. v. Story, 268 U.S. 288, 69 L.Ed. 959; Campbell v. Consalus. 25 N.Y. 613.

Paul Bakewell, Jr., for respondent.

(1) This court will take judicial notice of the record appearing in its files on a former appeal in the same case. Keaton v. Jorndt, 259 Mo. 179, 168 S.W. 734; Custer v. Kroeger, 313 Mo. 130, 280 S.W. 1035; Kinnerk v. Smith, 328 Mo. 513, 41 S.W.2d 381; Collins v. Leahy, 347 Mo. 133, 146 S.W.2d 609. (2) When a party has made a judicial admission of a fact, such judicial admission may not be contradicted. In re Estate of Jarboe v. Jarboe, 227 Mo. 79, 127 S.W. 26. (3) When a motion for a new trial does not challenge a particular adjudication, and by such failure omits to bring the particular finding to the attention of the trial court, such finding may not be challenged in the trial court and is not before the appellate court for review. State v. Butler's Estate, 175 S.W.2d 55; Neal v. Curtis Mfg. Co., 328 Mo. 389, 41 S.W.2d 543. (4) After the opinion of the court had been rendered, Mrs. Wiggins did not, in any motion in this court, seek to alter or modify the adjudication of the circuit court, as affirmed by this court, that she had received the income from the property, and having failed to do so, the defendants, her executors, are in no position to complain of the trial court's order in harmony with the adjudication of this court. Tant v. Gee, 167 S.W.2d 67. (5) Because the mandate of this court had issued, the only question this court will consider on this second appeal is "whether or not the trial court did follow the directions of the mandate." State v. Kelly, 293 Mo. 297, 239 S.W. 868; Booth v. Scott, 240 S.W. 217. (6) After remand the circuit court "had no power to enter any other judgment, or to consider or determine other matters not included in the duty of entering judgment as directed. All other matters had become res adjudicata and could not be reopened." Stump v. Hornback, 109 Mo. 272, 18 S.W. 37; Young v. Thrasher, 123 Mo. 308. 27 S.W. 326; McLure v. Bank, 263 Mo. 128, 172 S.W. 336; State v. Lamb, 232 S.W. 983; Prasse v. Prasse, 115 S.W.2d 809; Tant v. Gee, 167 S.W.2d 67. (7) The decree as entered, from which Mrs. Wiggins appealed, and which was affirmed by this court, was a final decree. Schneider v. Patton, 175 Mo. 684, 75 S.W. 155; Irwin v. Burgan, 28 S.W.2d 1021. (8) That judgment bore interest from the date it was rendered at 6 per cent per annum. Sec. 3228, R.S. 1939; Evans v. Fisher, 26 Mo.App. 543; Crook v. Tull, 111 Mo. 283, 20 S.W. 8; McManus v. Burrows, 177 S.W. 674; St. Louis v. Senter Comm. Co., 343 Mo. 1075, 124 S.W.2d 1180; Asphalt Co. v. Jacobsmeyer, 142 S.W.2d 641. (9) Interest is the legal damages due for the injurious detention of money. McDonald v. Loewen, 145 Mo.App. 49, 130 S.W. 52. (10) The method of calculating the interest and crediting the payments on acount on this judgment as they were made is correct. Pullis v. Somerville, 218 Mo. 624, 117 S.W. 936; Riney v. Hill, 14 Mo. 500. (11) Where a party has been wrongfully deprived of income, such party is entitled to interest at 6 per cent on each item of income from the date of its payment. Elliott v. Machine Co., 236 Mo. 546, 139 S.W. 356; Puller v. Casualty Co., 271 Mo. 369, 196 S.W. 755; McClure v. Lewis, 72 Mo. 323; Savings Assn. v. Morrison, 48 Mo. 274.

OPINION

Gantt, J.

This is the second appeal in this case. The opinion on the first appeal is reported in Kennard v. Wiggins, 349 Mo. 283, 160 S.W.2d 706. On that appeal we affirmed the final judgment on the merits and remanded the cause for orders making the judgment effective. Defendant Ella L. Wiggins died October 17, 1942, after the affirmance of the judgment on the merits. The executors of her will entered their appearance as defendants. On receipt of the mandate on the merits and in due course, the trial court sustained plaintiff's motion to make the judgment effective. Defendant executors appealed from the judgment on the motion. The amount involved is in excess of $ 7500. The facts are stated in detail in the opinion on the merits. The material facts on this appeal follow:

On November 23, 1897, John E. Liggett died. In his will he created a trust estate which expired April 4, 1916. On May 15, 1920, his daughters Ella L. Wiggins, Dolly L. Kilpatrick and Cora L. Fowler filed suit to construe the will. Under the will they claimed absolute ownership of certain real estate and personal property consisting of stocks, bonds and cash. On March 16, 1925, we ruled they had only a life estate in the property. [Wiggins et al. v. Perry et al., 271 S.W. 815.]

In June, 1925, the three daughters as trustees and life tenants engaged the services of the St. Louis Union Trust Company to manage the personal property. They directed the Trust Company that upon the death of either daughter to deliver her share of the property to the person or persons entitled to the same under the will.

On July 19, 1928, Cora L. Fowler died without issue. The St. Louis Union Trust Company was executor of her will. On her death and under the will of John E. Liggett, the sisters, Ella L. Wiggins and Dolly L. Kilpatrick, became the owners in equal shares of Cora's one-third interest in the property. On August 10, 1928, Dolly L. Kilpatrick died and left surviving, her sister Ella L. Wiggins, her daughter Mary L. McIntosh, and her granddaughter Elizabeth L. Kennard (plaintiff in this case) who is a daughter of a deceased daughter of Dolly L. Kilpatrick. Plaintiff claimed that under the will of her great grandfather (John E. Liggett) and on the death of her grandmother (Dolly L. Kilpatrick) she became the absolute owner of a certain interest in the above mentioned property. Likewise, Mary L. McIntosh (Dolly Kilpatrick's daughter) claimed that under the will of her grandfather (John E. Liggett) she became the absolute owner of a certain interest in the above mentioned property on the death of her mother. Ella L. Wiggins claimed that on the death of her sister Dolly L. Kilpatrick, she became the owner of a life estate in the property claimed by Mary L. McIntosh and the plaintiff.

In the meantime and on the death of Cora L. Fowler, the Trust Company continued to manage the property as agent for the surviving life tenants, Ella L. Wiggins and Dolly L Kilpatrick, until the death of Dolly L. Kilpatrick on August 10, 1928. Thereafter the Trust Company continued to manage the property as the agent of Ella L. Wiggins. However, in March, 1929, while acting for Ella L. Wiggins in the management of the property, the Trust Company suggested to plaintiff's attorney that it continue to manage the property in two accounts, one-half of the property in an account for the use and benefit of Ella L. Wiggins, and the other half of the property in an account awaiting the determination of the litigation with reference to plaintiff's interest, if any, in the property. Plaintiff and her attorney agreed to...