Leahy v. Mercantile Trust Co.

• Court: Missouri Supreme Court
• Writing for the Court: Graves
• Citation: Leahy v. Mercantile Trust Co., 296 Mo. 561, 247 S.W. 396 (Mo. 1922)
• Decision Date: 20 December 1922
• Docket Number: No. 22748.,22748.
• Parties: LEAHY v. MERCANTILE TRUST CO.

247 S.W. 396

296 Mo. 561

LEAHY v. MERCANTILE TRUST CO.

No. 22748.

Supreme Court of Missouri, in Banc.

December 20, 1922.

Motion for Rehearing Denied December 30, 1922.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Action by John S. Leahy against the Mercantile Trust Company. Judgment for defendant on the pleadings, and the plaintiff appeals. Affirmed.

Fred L. Williams, Chas. G. Revelle, Marshall & Henderson, Geo. B. Webster, and Elliott W. Major, all of St. Louis, for appellant.

Jourdan, Rassieur & Pierce and Sam A. Mitchell, all of St. Louis, for respondent.

GRAVES, J.

This case first appeared in Division No. 1, wherein an opinion was written by ELDER, J., reversing the judgment and remanding the cause. As a member of that division, I dissented, and the votes of other judges were such as to leave no opinion, and the case was transferred to this court, and, the divisional opinion having been rejected, the case has been lodged with me for final disposition. Judge ELDER has fairly outlined the facts, and I adopt his statement of facts, reserving the right to suggest other facts, if such there be. I quote his statement of facts in full, for the reason that he may desire to dissent by opinion in the case, and can shorten his dissent by reason of the stated facts being to all practicable purposes the same. In fact there is no disagreement as to facts, unless such arises from mere conclusions in pleadings. It is purely a paper case. Judge ELDER'S statement follows:

"This is an action to recover $269,288.17 commissions received by defendant from the estate of James Campbell, deceased, to which commissions plaintiff claims he is entitled. The case is here on appeal from an order of the circuit court of the city of St. Louis overruling a motion by plaintiff for judgment on the pleadings and sustaining a like motion of defendant.

"The petition is in two counts, the first count being for damages alleged to have been sustained by reason of defendant's refusal to turn over to plaintiff the assets of the estate of the said James Campbell, whereby plaintiff was wrongfully deprived of the commissions he would have earned, and the second count being an action for money had and received, to the amount of such commissions.

"The first count alleges that James Campbell, then domiciled in the city of St. Louis, departed this life at Greenwich, Conn., on June 12, 1914; that on June 16, 1914, a paper purporting to be the last will of said Campbell was presented by defendant to the probate court of the city of St. Louis for probate, defendant then alleging that said Campbell was possessed of an estate of the approximate value of $20,000,000; that upon the filing of said will defendant obtained letters testamentary as the executor of the said purported will, and thereupon took possession and assumed control of all the real and personal estate of said Campbell; that on or about September 19, 1914, one Margaret C. Harrison and others, as plaintiffs, instituted a proceeding in the circuit court of the City of St. Louis against tie Mercantile Trust Company (defendant herein), Florence A. Campbell and others, in the nature of a will contest, wherein they drew into question the validity of the said purported will; that on October 9, 1914, the said Margaret C. Harrison and others, plaintiffs as aforesaid, filed in the probate court of the city of St. Louis their motion for the appointment of an administrator pendente lite to take charge of the assets of the estate of said James Campbell and to administer the same according to law during the pendency of said will contest; that on October 22, 1914, that said probate court sustained said motion and appointed plaintiff as administrator pendente lite of said estate and fixed his bond for the time being at the sum of $10,000, to be increased upon receiving the assets of said estate to the sum of $10,000,000; that thereupon, on the same day, plaintiff, as such administrator pendente lite, tendered his bond for $10,000, which was accepted, approved and filed; that thereafter, on October 23, 1914, plaintiff having arranged for, and being then ready, willing and able to give the increased bond of $10,000,000, and having so advised defendant, made demand upon defendant for the delivery to him of the personal property belonging to the estate of the said Campbell and the surrender to him of the possession of the real property owned by said Campbell, but that defendant, without warrant or authority of law, refused to surrender either the said personal property or the possession of the real estate, and wrongfully and against the right of plaintiff withheld the delivery of the same from him; that by reason of the premises and the wrongful acts of defendant aforesaid, plaintiff has suffered damage in the sum of $269,288.17, for which he prays judgment and costs.

"The second count of the petition alleges that between October 22, 1914, and April 30, 1917, plaintiff was the duly and legally appointed administrator pendente lite of the estate of James Campbell, deceased, under and by appointment of the probate court of the city of St. Louis, and as such was entitled to the possession of the property and assets of the said estate and to the compensation provided by law for such administrators for their services in administering upon the estates of deceased persons; that between the said mentioned dates defendant came into possession of the sum of $269,288.17, the same being the compensation provided by law for administration upon the estate of said James Campbell, which sum defendant withheld, and still withholds from plaintiff, although he has many times demanded it; that by reason of the matters and things aforesaid defendant has received to plaintiff's use the sum of $269,288.17, which in justness and fairness it was not entitled to receive, and which in truth and fact belonged to plaintiff. Judgment is prayed in the sum of $269,288.17, with interest and costs.

"Defendant's answer to the first count of the petition admits that James Campbell died on June 17, 1914, possessed of a large estate, that his will was probated and defendant appointed executor thereof as alleged, that Margaret C. Harrison and others instituted the proceeding in the circuit court of the city of St. Louis and filed their motion id the probate court for the appointment of en administrator pendente lite, that the said probate court entered an order purporting to appoint plaintiff as such administrator pendente lite, and that plaintiff gave a $10,000 bond which the probate court purported to accept and approve. The answer denies all other allegations of the first count of the petition.

"The answer further avers that the proceeding brought by Margaret C. Harrison and others was not a will contest for the reason that none of the plaintiffs in said proceedings were heirs at law of James Campbell and were in no way interested in his estate or in the probate of his will, and that therefore plaintiff herein was never legally appointed administrator pendente lite of the estate of said Campbell; that in the said proceeding brought by Margaret C. Harrison and others it was pleaded by the defendants that James Campbell left as his sole surviving heir at law his only child, a daughter, Lois Ann Burkham, née Campbell, and an issue was framed in said suit whether said Lois Ann Burkham was the child of said Campbell, upon which issue a judgment was entered on May 3, 1915, adjudging that the said Lois Ann Burkham was the child and only heir at law of said Campbell and that the suit be dismissed; that the plaintiffs in said suit took an appeal to the Supreme Court of Missouri, but on April 30, 1917, said appeal was dismissed and the judgment of the circuit court thereupon became final; that said judgment, establishing the status of Lois Ann Burkham, is binding and conclusive upon the world, and defendant herein now pleads the same as res adjudicata of the question as to whether Margaret C. Harrison and others had any right to institute suit to contest the said will, and as to whether or not said proceeding was in fact a will contest proceeding.

"The answer further alleges that the appointment of plaintiff herein as administrator pendente lite was void for the further reason that the court fixed plaintiff's bond at only $10,000 to be increased to $10,000,000 upon his receiving the assets, and plaintiff only gave bond for $10,000 and never gave bond for $10,000,000 to entitle him to receive the assets, and that therefore the appointment of plaintiff and the bond for $10,000 were null and void because bond was not given for an amount `not less than double the amount of the estate,' as required by law, and therefore plaintiff never qualified as administrator pendente lite and never acquired any rights under said order of appointment; that within ten days after the order appointing plaintiff administrator pendente lite, defendant herein as executor, Florence A. Campbell, Lois Ann Burkham and the St. Louis University, the persons interested in said estate, filed their affidavits and prayed for an appeal and filed their supersedeas bonds for appeal, which was duly allowed to the circuit court; that said appeal coming on to be heard and the parties, including plaintiff herein, appearing, the court after having fully considered the same entered judgment denying the application to suspend the letters testamentary granted to defendant herein, and ordered said judgment certified to the probate court; that thereafter plaintiff herein was allowed an appeal to the Supreme Court from the judgment of the circuit court, but that the parties who filed said motion, said Harrison and others, did not appeal from said judgment; that subsequently, on April 27, 1918, the Supreme Court entered its order dismissing plaintiff's appeal and the judgment of the circuit court became final; that in the opinion of the Supreme Court it was decided,...