McKee v. Allen

• Decision Date: 11 June 1907
• Citation: 103 S.W. 76,204 Mo. 655
• Parties: McKEE v. ALLEN et al.
• Court: Missouri Supreme Court

103 S.W. 76

204 Mo. 655

McKEE v. ALLEN et al.

Supreme Court of Missouri. Division No. 2.

June 11, 1907.

1. ADMINISTRATORS—CLAIMS—ENFORCEMENT— ACTIONS—NATURE OF REMEDY.

Rev. St. 1899, § 187 [Ann. St. 1906, p. 401], providing that actions commenced against executors after the death of the deceased shall be considered demands legally exhibited against the estate from the time of serving the original process on the executor, has reference to the time when claims shall be considered exhibited, within section 185 [Ann. St. 1906, p. 399], providing that demands not exhibited in two years shall be barred, etc., and is not authority for the maintenance of a bill in equity to obtain an allowance for a money judgment.

2. SAME—ADEQUACY OF LEGAL REMEDY.

One demanding, in his capacity as administrator, money of his intestate alleged to have been lent to and invested by a decedent, and retained by him until the time of his death, and

praying that defendant, as administrator of decedent, be required to pay over the money with interest, has an adequate remedy at law, and cannot invoke the aid of equity, especially where the testimony in support of the claim consists of evidence under the control of the claimant.

3. TRUSTS — VOLUNTARY TRUSTS—EVIDENCE— SUFFICIENCY.

In a suit to establish a voluntary trust, based on the theory that one had constituted himself a trustee for a beneficiary, by taking conveyances in the name of the beneficiary and by loaning money and taking notes and securities in her name, evidence examined, and held insufficient to establish a trust.

4. SAME—EVIDENCE—ADMISSIBILITY.

In a suit to establish a voluntary trust based on the theory that one had constituted himself a trustee for a beneficiary, by taking conveyances in her name and by loaning money and taking notes and securities in her name, a paper signed by the alleged trustee, not directed to the beneficiary, bearing no date, and only a fragment of a writing, and reciting that in case of the death of the alleged trustee information might be obtained from a third person to assist in the recovery of moneys the alleged trustee had lent, which amounted to a specified sum, was properly excluded; there being no evidence that any one had seen the complete writing, or what it referred to, or what it contained.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by J. E. McKee, administrator of the estate of Melvina Blanchard, deceased, against A. M. Allen and others, executors of Joseph Benoist, deceased. From a judgment of dismissal, plaintiff appeals. Affirmed.

Ellis, Cook & Ellis, for appellant. C. O. Tichenor, F. P. Sebree, Johnson & Lucas, and Allen & Allen, for respondents.

GANTT, J.

This is a bill in equity by the administrator of the estate of Mrs. Melvina Blanchard against the administrator pendente lite of the estate of Joseph Benoist, for an accounting of assets and moneys alleged to have belonged to Mrs. Blanchard in her lifetime to the amount of $40,000, which it is charged were intrusted to the said Benoist by Mrs. Blanchard, and of which no accounting had ever been made by said Benoist to her in her lifetime. Plaintiff alleges that he was appointed administrator of the estate of Mrs. Blanchard by the probate court of Jackson county on March 18, 1901, and that Mrs. Blanchard died intestate at Kansas City February 9, 1894. The defendant was the administrator pendente lite during the contest of the will of Joseph Benoist, deceased, who died August 16, 1899. The petition then alleges that Mrs. Blanchard was a sister of Joseph Benoist, and they were both born in the French settlement near Montreal, Canada, and were reared as Canadian French; that said Benoist emigrated in early manhood to the United States, but his said sister remained in Canada, and was there married to one Joseph Blanchard; that in the early part of the year 1868 said Melvina Blanchard and her husband came from Canada and joined said Benoist at Baxter Springs, Kan., where said parties, working and co-operating together, began and developed a large and profitable merchandise business, and jointly accumulated a large amount of property; that said Joseph Blanchard died in the early part of the year 1877, and thereupon Mrs. Blanchard took her three children and her household effects and returned to Canada, leaving her property in the custody and control of said Benoist, who was authorized by her to, and who did continuously thereafter, sell, invest, and handle the same for her; that for many years he loaned and handled the money and property of Mrs. Blanchard for her benefit, and she trusted him implicitly with her affairs; that she was a person of small business experience herself, while said Benoist was a shrewd and successful business man; that Mrs. Blanchard a few months prior to her death came from Canada to Kansas City, Mo., to live with her brother, the said Benoist, and they lived together in the fall of 1893, until her death in February, 1894; that the letters, memoranda, receipts, and other papers belonging to Mrs. Blanchard relating to her business transactions with said Benoist were, as plaintiff is informed and believes, then at the time of her death in her control in Kansas City, Mo., and after her death the same fell into the hands of said Benoist, or were lost or destroyed; that because thereof plaintiff is unable at this time to state the amount of the moneys and property and the items thereof, so by said Melvina Blanchard intrusted to said Benoist, or the dates when the same were so placed with him, or the fashion in which the same were invested, but that between the 1st day of January, 1868, and the 1st day of March, 1894, the money and property so intrusted by her with said Benoist for investment aggregated many thousands of dollars; that the same, together with the increase thereof, remained in the hands of said Benoist, were by him collected, and the same, or the proceeds thereof, were among the assets held by said Benoist at his death, and devolved upon the defendant by virtue of his appointment as administrator pendente lite; that the total value of the moneys and property belonging to said Mrs. Blanchard so intrusted by her to said Benoist amounted at the time of his death to $40,000.

To this petition the defendant answered: First, that he denied each and every allegation contained in the petition; and, second, that the cause of action, if any, alleged by plaintiff, did not accrue to him or to his intestate within five years next before the filing of this petition, and, having fully answered, defendant asks to be discharged with his costs. Plaintiff filed a reply denying each and every allegation of new matter.

On the trial of the cause, the plaintiff, McKee, was sworn as a witness, and exhibited his letters of administration, dated March 18, 1901. He then testified that he had none of the original mortgages or deeds or notes or title papers pertaining to the estate of Mrs. Malvina Blanchard, and had never had the custody of any of these papers. It was admitted that the defendant Thomas J. Seehorn was the duly appointed administrator pendente lite of the estate of Joseph Benoist, deceased; that said Benoist died, leaving a will, and under that will A. M. Allen, Thomas McNamara, and Daniel O'Flaherty were appointed executors of the said will; and that subsequently a suit was instituted contesting said will, and by virtue of that suit, and because thereof, the defendant Seehorn was appointed administrator pendente lite, and the estate of said Benoist passed into his control and possession. Plaintiff then introduced in evidence the original inventory of the estate of said Benoist, consisting of real estate and personal property, consisting mostly of notes secured by deeds of trust, amounting in the aggregate to $76,311.13. On cross-examination the witness stated that he had never made any inventory of Mrs. Blanchard's estate, but had been guided in all the proceedings by his attorney, who brought this suit. If there was any inventory, he presumes that he was sworn to it, but he had no recollection of who the witnesses were to the said inventory. The defendant Seehorn was then sworn as a witness for the plaintiff, and testified that there were in his hands at that time notes, government bonds, and cash amounting to $82,000, and aside from that there were four pieces of real estate which had never been appraised, but a general estimate of its value would be about $30,000. He was then asked if he could tell which of the notes that were inventoried were payable to the order of Melvina Blanchard. Answered that he could not, that most of the notes had been paid, that the Elfedt note still remained in his hands, but it seemed to him that on one of the notes there was the signature of Mrs. Blanchard. The plaintiff introduced in evidence the records from the recorder's office showing eight or ten deeds of trustee, in which Mrs. Blanchard was named as a party of the third part or beneficiary. These deeds of trust secured notes amounting to about $30,000, and the said deeds, except one or two, were all shown by the said records to have been satisfied either by Benoist as assignee of the notes, or his administrator or executors.

The plaintiff offered evidence that in August, 1890, a suit was begun in the circuit court of Kansas City, in which Homer Reed was plaintiff, and Joseph Benoist and Melvina Blanchard were defendants. In that suit the inquiry arose whether Benoist was loaning out his own or Mrs. Blanchard's money in Mrs. Blanchard's name. Benoist's deposition was taken, and he was questioned upon that point, and, among other questions, the following were propounded and answered by him, as follows: "Q. Now, Mr. Benoist, was that your money or Mrs. Blanchard's money? A. It was Mrs. Blanchard's money. Q. Is this Mrs. Blanchard a person of means? A. I believe she is. Q. From whom did she get her money? A. She had some money from...