Kimpton v. Spellman

• Citation: 173 S.W.2d 886,351 Mo. 674
• Decision Date: 20 July 1943
• Docket Number: 38433
• Parties: Carl E. Kimpton et al. v. Lloyd P. Spellman, Executor, et al., Appellants
• Court: Missouri Supreme Court

173 S.W.2d 886

351 Mo. 674

Carl E. Kimpton et al. v. Lloyd P. Spellman, Executor, et al., Appellants

No. 38433

Supreme Court of Missouri

July 20, 1943

Rehearing Denied September 7, 1943.

Appeal from Clinton Circuit Court; Hon. Richard B Bridgeman, Judge.

Remanded (with directions).

Bowersock Fizzell & Rhodes for Lloyd P. Spellman, Executor of Estate of Clarance I. Spellman, appellant.

The alleged cause of action stated in the petition is barred as to this defendant by Section 182, Revised Statutes of Missouri, 1939. Sec. 182, R. S. 1939; 2 Williston on Contracts (Rev. Ed.), sec. 344; Secs. 3340, 3341, R. S. 1939; Clarke v. Cable, 21 Mo. 223; Slaughter v. Davenport, 151 Mo. 26, 51 S.W. 471; Peters v. McDonough, 327 Mo. 487, 37 S.W.2d 530; State ex rel. v. Hughes, 347 Mo. 237, 146 S.W.2d 889; 17 C. J. S. 810, sec. 353c; 11 C. J. S. 475, sec. 106c.

P. E. Reeder, George J. Winger and Harry G. Stocks for Fidelity & Deposit Company of Maryland, appellant; R. H. Musser and Winger, Reeder & Barker of counsel.

(1) The Circuit Court of Clinton County was without jurisdiction in this cause because the Circuit Court of Jackson County had and has exclusive jurisdiction of the Mullett trust. Princess Lida of Thurn and Taxis v. Thompson, 59 S.Ct. 275, 305 U.S. 456; Ch. 25, Secs. 3525, 3537, 3538, R. S. 1939; 65 C. J. 1084; State ex rel. McManus v. Muench, 217 Mo. 124, 177 S.W. 25; McManus v. Park, 287 Mo. 109, 229 S.W. 211; Cell v. Robinson, 79 S.W.2d 489. (2) The judgment and decree of the Circuit Court of Jackson County in the prior action between appellant, Lloyd P. Spellman, executor of the estate of Clarence I. Spellman, deceased, as plaintiff, and respondents as defendants, is a bar to any further action of respondents against the estate of Clarence I. Spellman and Fidelity & Deposit Company of Maryland as surety on his bond as trustee of the Mullett Estate. Apple v. Smith, 106 Kan. 717, 190 P. 810. (3) The action is Jackson County was properly brought by the executor of Clarence I. Spellman and the beneficiaries were the only necessary parties defendant. State ex rel. v. Trust Co., 209 Mo. 472, 108 S.W. 97; Bobb v. Bobb, 89 Mo. 411, 4 S. 511; Price v. Boyle, 287 Mo. 257, 229 S.W. 206; Bodin v. Johnson, 226 Mo.App. 787, 47 S.W.2d 155; Fogarty v. O'Reilly, 107 N.Y.S. 234; State ex rel. Ponath v. Muench, 230 Mo. 236, 130 S.W. 282. (4) The only issue tendered by the petition in the case at bar is whether the deceased trustee was indebted to the trust. That issue was made in the Jackson County case by the tender of an accounting on behalf of the deceased trustee and the judgment in the former action is a final determination of that issue and, therefore, a complete bar to this suit. 34 C. J., Judgments, 930; Richardson v. Dell, 191 S.W. 63; Barnhart v. Little, 185 S.W. 174; 34 C. J., secs. 1236, 1322, pp. 818, 909; Leslie v. Carter, 268 Mo. 420, 187 S.W. 1196; McClure v. Bank, 263 Mo. 128, 172 S.W. 336; Powell v. City of Joplin, 335 Mo. 562, 73 S.W.2d 408; Consolidated School Dist. v. Day, 328 Mo. l. c. 1113, 43 S.W.2d 428; Norman's Land, etc., Co. v. Idalia, etc., Co., 205 Mo.App. 474, 226 S.W. 43; Cordia v. Matthes, 130 S.W.2d 597, 334 Mo. 1059; Rhodus v. Geatley, 347 Mo. l. c. 409, 147 S.W.2d 631; Walsh Const. Co. v. United States Guarantee Co., 76 F.2d 240; Berry v. Majestic Milling Co., 304 Mo. 292, 263 S.W. 406; Ginnocchio v. Railroad, 264 Mo. l. c. 521, 175 S.W. 196; Abbott v. Railroad, 232 Mo. 616, 135 S.W. 1199; Donnell v. Wright, 147 Mo. 639, 49 S.W. 874; Paving Co. v. Field, 132 Mo.App. 628, 97 S.W. 39; Peake v. Jameson, 82 Mo. 552. (5) Respondents failed to prove either that Clarence I. Spellman violated any of his duties as trustee of the Mullett trust or that the trust estate has suffered any loss by reason of his actions. Respondent offered no competent evidence of breach of trust or of loss to the trust estate and the evidence offered should have been excluded. 32 C. J. S., pp. 725, 737; Hall v. Small, 178 Mo. 629, 77 S.W. 733; Gee v. Sherman, 221 Mo.App. 121, 293 S.W. 789; 2 Jones on Evidence (1913 Ed.), pp. 178, 182. (6) The assessment of damages and attorney's fees against appellant was error. The evidence fails to show vexatious delay. State ex rel. Gott v. Fidelity & Deposit Co., 317 Mo. 1078, 298 S.W. 83; Chernus v. Kennedy-Coats Const. Co., 227 Mo.App. 582, 55 S.W.2d 744; Kahn v. Assurance Corp., 187 Mo.App. 216, 173 S.W. 695; Fager v. Commercial Union Assur. Co., 189 Mo.App. 464, 176 S.W. 1064; Strawbridge v. Ins. Co., 193 Mo.App. 687, 187 S.W. 79. (7) The judgment is erroneous on the face of the record. Bergesch v. Keevil, 19 Mo. 127; Gibbons v. Gentry, 20 Mo. 468; Richardson v. Means 22 Mo. 495; Myers v. Hale, 17 Mo.App. 205; Parker v. Rodes, 79 Mo. 88; Morrow v. Morrow, 113 Mo.App. 444.

Cross & Cross and White & Hall for respondents.

(1) Clarence Spellman violated his duties as trustee. Cornet v. Cornet, 190 S.W. 333, 269 Mo. 298; 65 C. J., p. 801; State ex rel. Calvert v. Detroit & Fidelity Ins. Co., 42 S.W.2d 966; St. Louis Union Trust Co. v. Toberman, 140 S.W.2d 68. (2) The evidence of the value and nature of the trust properties was properly admitted. State v. Matkins, 34 S.W.2d 1; Benz v. Powell, 93 S.W.2d 877; State ex rel. v. Maryland Casualty Co., 66 S.W.2d 537. (3) The Circuit Court of Jackson County did not have exclusive jurisdiction of this action. Cell v. Robinson, 79 S.W.2d 489; In re Parker's Trust Estate, 67 S.W.2d 115. (4) The Jackson County suit was not res judicata of the present action. 34 C. J., p. 858; De Vore v. Armourdale State Bank, 128 S.W.2d 1074; Stoner v. New York Life Ins. Co., 144 S.W.2d 167; Koontz v. Whitaker, 111 S.W.2d 197; Jungeblut v. Maris, 130 S.W.2d 681; Perry v. Bank, 91 S.W.2d 78; Barber Paving Co. v. Field, 97 S.W. 171. (5) The judgment is not erroneous. Secs. 850, 851, R. S. 1939; Citizens' Trust Co. v. Tindle, 199 S.W. 1025. (6) Defendant surety company was liable under the statute for its vexatious refusal to pay. Secs. 6040, 1230, R. S. 1939; Camdenton School Dist. v. New York Cas. Co., 104 S.W.2d 319, 340 Mo. 1070; State ex rel. Peach Co. v. Chicago Bonding Co., 215 S.W. 20; Glover v. Liverpool, London & Globe Ins. Co., 186 S.W. 583. (7) Plaintiff's claim is not barred by the one-year statute for filing claims in the probate court. Binz v. Hyatt, 98 S.W. 637; Kirk v. Metropolitan Ins. Co., 38 S.W.2d 519; Bond v. Unsell, 72 S.W.2d 871; Orr v. St. Louis Union Trust Co., 236 S.W. 642.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

This is an appeal from a judgment for the sum of $ 11,126.83 entered by the Circuit Court of Clinton County upon a finding of the court, without the aid of a jury, in an action on the surety bond of Clarence I. Spellman as the trustee under the provisions of a trust declaration of one Frederick Mullett, deceased.

The trust declaration was executed April 8, 1911, and transferred and set over certain promissory notes, listed in the instrument, unto Clarence I. Spellman to "hold, and continue invested, and to reinvest the proceeds from the sale or collection of any of said notes . . . in such manner, upon such terms, and in such securities . . . as he (said trustee) in his best judgment, may consider or deem for the best interest of the life-tenants and remaindermen in said property and estate. . . ." It was provided by the terms of the trust declaration that the income of the trust property should be paid to Frederick Mullett and to his wife, Jennie A. Mullett, a plaintiff herein, for their lifetime, and upon their death the principal of the property to be distributed to Frederick A. Mullett (now deceased) and Lucille A. (Spellman) Alton, a plaintiff herein, children of Frederick Mullett.

Clarence I. Spellman, as principal, and defendant, Fidelity and Deposit Company of Maryland, as surety, executed the bond, subject matter of this action, on April 19, 1911, by which they bound themselves unto Frederick Mullett, Jennie A. Mullett, Lucille A. Spellman (Alton) and Frederick A. Mullett to the payment of the sum of $ 11,500 the obligation to be void ". . . if the said Clarence I. Spellman, as Trustee aforesaid, shall faithfully administer said trust in accordance with the terms and conditions of said trust agreement, and shall account for, pay and deliver all money and property of the said trust estate and perform all other things touching said trust enjoined upon him in the said trust agreement . . ." Defendant Fidelity and Deposit Company of Maryland is hereinafter referred to as "Surety."

The notes transferred to the trustee, with the purported value of each note, were listed by the donor in the instrument of trust, the total listed value of the notes being $ 11,647.72.

Frederick Mullett died January 24, 1931. Frederick A. Mullet died September 3, 1932, leaving surviving three sons, Richard Frederick Mullett, Robert Harry Mullett and William Luke Mullett, infants, plaintiffs. Clarence I. Spellman died September 25, 1938. Defendant Lloyd P. Spellman is the executor of the will of Clarance I. Spellman, letters testamentary having been issued October 18, 1938, the date of first publication of notice of issuance of letters testamentary being October 20, 1938.

August 8, 1939, Lloyd P. Spellman, as executor, filed a suit Spellman v. Mullett et al., No. 466259, hereinafter referred to as "Spellman case," in the Circuit Court of Jackson County, against Jennie A. Mullett, Lucille A. Alton, Richard Frederick Mullett, Robert Harry Mullett and William Luke Mullett. The petition alleged the facts of the trust relation, the deaths of Frederick Mullett, Frederick A. Mullett and Clarence I. Spellman, and prayed the court to name and appoint a successor trustee, to allow compensation for the services of Clarence L....