Lowe v. Montgomery

• Decision Date: 05 February 1906
• Citation: 92 S.W. 916,117 Mo. App. 273
• Parties: LOWE v. MONTGOMERY.
• Court: Missouri Court of Appeals

92 S.W. 916

117 Mo. App. 273

LOWE v. MONTGOMERY.

Kansas City Court of Appeals. Missouri.

February 5, 1906.

Rehearing Denied March 3, 1906.

1. TRUSTS — TRUSTEE — REMOVAL — GROUNDS — SUFFICIENCY.

The fact that a solvent trustee with ample bond deposited the money received as trustee in a bank in his individual name when his account was overdrawn, and did not keep any separate books of account of his trusteeship, and the fact that his loaning of the fund was not done in accordance with approved business methods, did not make it incumbent on the court to remove him, especially where the trustee considered that he was liable for interest on the whole sum received.

2. SAME.

A trustee holding stock in a bank as a part of the trust estate aided in the organization of a new and rival bank and became a stockholder thereof. He was a large stockholder in the former bank, and continued to remain so. Held, that his acts did not show an intent to injurously affect the property of the former bank, and did not justify his removal.

Appeal from Circuit Court, Jackson County; L. T. Dryden, Special Judge.

Proceedings by Isaac N. Lowe for the removal of Eugene E. Montgomery, as trustee. From a judgment refusing to remove the trustee, plaintiff appeals. Affirmed.

J. Allen Prewitt, for appellant. J. D. Strother, J. W. Clements, and Cowherd & Ingraham, for respondent.

ELLISON, J.

Plaintiff's father died in November, 1903. He left plaintiff by his will $5,000 in money and 20 shares of bank stock (of the face value of $100 per share) in the Bank of Blue Springs. By the terms of the will, the defendant was made trustee for the money with directions to loan it out for at least five years and pay the interest to the plaintiff. For the bank stock, while left in trust, a trustee was not named and, afterwards, defendant was appointed by the court as trustee for that also. This proceeding was brought to remove defendant from the trusteeship, and resulted in refusal by the trial court; whereupon plaintiff appealed.

The main grounds charged as cause for removal were that defendant had not loaned the money, but had converted it to his own use; and that the relations between him and the plaintiff had become unfriendly by reason of business rivalry between two banks at Blue Springs, which had resulted from defendant having started and becoming largely interested in a bank in opposition (as alleged) to the bank in which plaintiff was interested in the same little town; the tendency of which was alleged to lessen the value of the stock owned by plaintiff. It appears that defendant received the money from the executor of the estate in March, 1904, and that this proceeding was instituted in a year and a month thereafter; so that whatever breach of trust there is must have occurred within that space of time. Defendant gave bond in the sum of $10,000 with an approved surety company as surety, on account of the $5,000 in money, and $8,000 on account of the stock. The bond is not questioned, and defendant is amply solvent. But it was shown that defendant deposited the money received as trustee in bank in his individual name, at a time that his account was overdrawn in the sum of about $600. This, and the fact that he does not appear to have kept any...