Kilpatrick v. Robert

• Decision Date: 02 June 1919
• Docket Number: No. 20134.,20134.
• Citation: 278 Mo. 257,212 S.W. 884
• Parties: KILPATRICK et al. v. ROBERT et al.
• Court: Missouri Supreme Court

212 S.W. 884

278 Mo. 257

KILPATRICK et al. v. ROBERT et al.

No. 20134.

Supreme Court of Missouri, Division No. 1.

June 2, 1919.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

Petition by Claude Kilpatrick and others, trustees, for approval of accounts and order of distribution, to which Douglas W. Robert and another, executors, file intervening petition. From the judgment, interveners appeal. Affirmed.

Douglas W. Robert, of St. Louis (P. Taylor Bryan, of St. Louis, of counsel), for appellants.

Jesse A. McDonald, of St. Louis, for John E. Liggett.

Nagel & Kirby, of St. Louis, for John Fowler and others.

James A. Siddon, for Cora B. Fowler and others.

GRAVES, J.

Leaving out of consideration the acrimony which has crept into some of the briefs on one side of this case, a comparatively short statement will suffice to present the issues involved herein. The facts are few and simple. The appellants are the executors of the estate of Edward S. Robert, deceased. The respondents are the trustees and beneficiaries under the will of John E. Liggett, deceased.

John E. Liggett died testate November 23, 1897, leaving a very large estate in the city of St. Louis. His will was probated November 29, 1897, and by the terms of the will Claude Kilpatrick, John Fowler, and Mitchell Scott were made trustees of the estate. These trustees were the husbands of John E. Liggett's three daughters. These trustees served until December 8, 1902, at which time Mitchell Scott died. Early in February the two remaining trustees (as contemplated by the will) brought a proceeding in the circuit court of the city of St. Louis, asking the appointment of a successor trustee to Mitchell Scott, deceased. As a result Edward S. Robert was appointed as successor trustee on February 19, 1903, and continued to serve until December 12, 1911, on which date the said Edward S. Robert died.

Following the death of Mr. Robert, the surviving trustees, Kilpatrick and Fowler, brought another proceeding in the circuit court of the city, for the appointment of a successor to Mr. Robert, and this resulted in the appointment of Charles Wiggins, who was then the husband of Ella L. Scott, the former wife of the first trustee, Mitchell Scott.

In this last proceeding all the beneficiaries of the trust created by the will were made parties defendant, as also were the executors of the estate of Edward S. Robert, deceased, being the same executors who are interveners in the instant case.

To the petition were three exhibits, viz. Exhibit A, the will; Exhibit B, statement of the assets of the estate; Exhibit C, statement of receipts and expenditures for the year past. The petition concluded with this prayer:

"Wherefore plaintiffs pray the court to appoint a successor to the said Edward S. Robert, that it fix the amount of bond to be given by said successor, and that the court approve the accounts of the property in the possession of said trustees on the 12th day of December, 1911, and grant such other and further relief as to the court may seem just."

In Exhibit C, supra, appear, among many items of credits, the following:

"Dec. 30, 1911. By C. Kilpatrick, trustee's commission 1911, $5,434.66." "Dec. 30, 1911. By E. S. Robert, trustee's commission 1911 $5,434.67." "January 4, 1912. By John Fowler, trustee's commission 1911, $5,434.67."

Under the testimony in the case the trustees at the end of each year, took out of the gross income of the estate for the year 5 per cent. thereof, and divided this equally among the trustees. This averaged Mr. Robert during his incumbency about $5,600 annually. The estate was near a $6,000,000 estate. Under the terms of the will the trust created thereby terminated in April, 1916. From the beginning of the trust to the end thereof the 5 per cent. of the gross income was taken out of the annual income each year, by the trustees for their services.

For 9 years Mr. Robert was a party to this act. The trust ran for 18 years, but, this 5 per cent. of the income was taken both before and after the incumbency of Mr. Robert, as well as during his incumbency.

In this present action the executors of Mr. Robert ask some $57,000 additional compensation for him, to be allowed out of the estate funds. The income of the estate'(exclusive of the trustees' commissions aforesaid, and the expenses of the trust) was divided semiannually between such of the beneficiaries as were entitled to immediate distribution. The present claim for the estate of Mr. Robert was by intervening petition, the trustees by their petition having sought to wind up their trust by having an approval of their stewardship and an order of distribution. Answers to the intervening petition were filed, and the issues thus raised are the matters for determination here.

I. Some preliminary questions appear, and must be disposed of before we reach the merits of the controversy. First it is urged that the matter has been previously adjudicated. That is to say, res adjudicata is urged by respondents here. This is bottomed upon the item in the settlement in 1912 (set out in our statement) wherein it appears that Mr. Robert (after his death) was charged with $5,434.67 as his commission for 1911, his death occurring December 12, 1911. We need not go into details on this matter. Suffice it to say that res adjudicata is an affirmative defense, and should be pleaded. There is no such plea in this record. Here the claim is made by an intervening petition. The answers to this intervening petition are simple general denials. The intervening petition upon its face does not show former adjudication, and the answers make no such defense. The question is therefore not in the record.

It is true that it has been ruled that where a petition upon its face shows former adjudication, the question being in the petition makes it demurrable on the ground that the petition fails to state an unadjudicated cause of action. Givens v. Thompson, 110 Mo. loc. cit. 443, 19 S. W. 833. But such is not the status of this case. The applicable rule is thus well stated in Beattie Mfg. Co. v. Gerardi, 166 Mo. loc. cit. 156, 65 S. W. 1038, whereat it is said:

"Res adjudicata is an affirmative defense, and like all other defenses of that character must be pleaded, unless the petition upon its face shows that the cause of action sued upon is in some way barred, which can not be said of the petition in this case. This question was passed upon by this court in the case of Kelly v. Hurt, 61 Mo. 463, in which it was said:

"`The point that the validity of Hurt's purchase has been heretofore settled by this court in favor of the defendant in the case of Hurt v. Kelly, 43 Mo. 238, cannot be considered by us now. There is no plea in this case that the subject-matter of this suit has become res adjudicata, and whether that suit is for any reason a bar to the present one cannot be determined on this demurrer.' Mo. Pac. Co. v. Levy, 17 Mo. App. 501.

"It may be that the former judgment is a bar to a recovery in this action, but that question should be raised by a plea of res adjudicata, and supported by proof that the matters adjudicated in the former suit were the same that are now presented for determination in the suit at bar. It follows that the demurrer could not properly have been sustained upon this ground."

See, also, Trimble v. Railroad, 199 Mo. loc. cit. 55, 56, 97 S. W. 164; Nelson v. Jones, 245 Mo. loc. cit. 590, 151 S. W. 80.

Under our rule, which is sound and well supported the question of res adjudicata is not in the case.

A Second preliminary question lies in a suggestion of counsel for respondents, wherein they say:

"The motion for a new trial is so general in its assignments that there is nothing before this court for its decision."

To present the matter clearly we should give the motion. We thought the matter fully settled, but some recent cases from the Courts of Appeal would indicate that our recent ruling has not been fully understood, even by some of our own brothers. The motion in this case reads:

"(1) Because the court erred in admitting illegal and improper evidence offered by plaintiffs and defendants against interveners' objection.

"(2) Because the court erred in excluding competent and legal evidence offered by interveners.

"(3) Because the finding...