Morrison v. Asher, 8139

• Decision Date: 01 November 1962
• Docket Number: No. 8139,8139
• Parties: Flora E. MORRISON, Plaintiff-Appellant, v. William J. ASHER and Walter Asher, Trustees under the Will of J. M. Asher, Deceased, Defenants-Respondents.
• Court: Missouri Court of Appeals

Page 844

361 S.W.2d 844

Flora E. MORRISON, Plaintiff-Appellant, v. William J. ASHER and Walter Asher, Trustees under the Will of J. M. Asher, Deceased, Defenants-Respondents.

No. 8139.

Springfield Court of Appeals, Missouri.

Nov. 1, 1962.

Weldon W. Moore, Rolla, for plaintiff-appellant.

Eugene E. Northern, Breuer, Northern & Crow, Rolla, for defendants-respondents.

RUARK, Presiding Judge.

This is an appeal from the judgment of the circuit court approving a trustees' report and denying plaintiff's petition for removal of said trustees. Such facts as we are able to glean from the transcript are as follows:

About 1949 J. M. Asher departed this life leaving a widow, Sarah, and four children, William, Walter, Floyd and Flora. His last will and testament was admitted to probate in Phelps County. The pertinent portions of said will are as follows:

'SECOND:

'I give, devise and bequeath to my son, Walter Asher, and to my son Wm. J. Asher, trustees of all my property that I may die seized of, be it real, personal or mixed and wheresoever located or situated, to have and to hold as such trustees for the use and benefit of my wife, Sarah E. Asher, and I direct that said property shall be invested and the income from said investment be paid to my said wife, Sarah E. Asher, for and during her natural life and I direct that she shall be allowed to keep the home place where we now reside so long as she desires to do so. I further direct that in case it becomes necessary for my said trustees to do so that they shall have full power and authority to sell and convert any or all of my said property including real estate into cash and to pay to my said wife for her support and maintenance whatever sum or sums may be necessary for her care, support and comfort so long as she shall live and at her death, whatever shall be left remaining, I direct that it shall be divided equally among my four children to-wit: Walter Asher, William J. Asher, Flora E. Morrison and Henry Floyd Asher, share and share alike, and I further direct that if said property shall not have been converted into cash at the time of the death of my said wife, Sarah E. Asher, and after her death if said property cannot be divided equally in kind, then I give to my said trustees full power and authority to sell and convert said property into cash to the to the [sic] best advantage for my said estate and the proceeds to be divided among my said four children above named, share and share alike, and to their heirs and assigns forever.'

Walter and William were appointed executors. Administration was had. Whether the widow's allowances provided by statute at that time were made we do not know. On May 27, 1953, William and Walter as trustees gave receipt to themselves as executors for money and property in the total amount of $19,822.68. This consisted of:

'Balance' of real estate 'per inventory' $10,750.00;

Cash 872.00;

Household goods 150.00;

and certain notes as follows:

Walter Asher $2,679.90, interest 4% due from 9/17/48;

W. J. Asher 3,149.07, interest 4% due from 9/14/48;

W. J. Asher 50.00, no interest;

W. J. Asher 60.00, no interest;

Floyd Asher 2,045.32, interest 4% due from 12/1/52;

Flora Morrison 618.33, interest 4% due from 4/1/52.

The real estate mentioned in the inventory was located on the outskirts of the City of Rolla, and at some time after the settlor's death its value was increased considerably because of a change in the routing of a highway. We find nothing in the record to indicate its value was increased by any activity of the trustees.

At some time prior to December 5, 1957, Flora filed suit in the Circuit Court of Phelps County praying for an order requiring the trustees to give bond. On the above date, the two trustees and their sister, Flora, entered into what is entitled a 'memorandum agreement.' This agreement recited the fact that such suit had been filed and then provided that 'in consideration of the mutual covenants between the parties' it is agreed: (1) The trustees, Walter and William, would, on or before January 1, 1958, furnish to Flora a detailed account in writing of their management of the trust estate from date of final settlement in probate court to and including the year 1956. (2) The trustees would thereafter, commencing with the year 1957, and on or before March 1 of each year, and for so long as said trust continued, furnish to Flora a detailed written account of their management of the trust estate, said written report to be mailed to a specifically stated address. (3) Flora would dismiss without prejudice her suit to require the trustees to provide for security. (4) Flora agreed to join in a deed in which the trustees proposed to sell a certain portion of the trust land (the 'Null' tract hereinafter mentioned) for a price of not less than $15,000. This instrument shows the signatures and acknowledgement of Flora and her husband and the signatures and acknowledgement of William and Walter, the two trustees.

In 1961, plaintiff Flora filed the instant suit. The petition recites the facts of death and testacy of J. M. Asher, the final settlement in probate court, the taking over by the trustees, and the fact that Sarah E. Asher, the widow and primary beneficiary of the trust, is still living. It then alleges that the present value of the estate is unknown, that petitioner has no knowledge or information as to the manner in which the trust estate is being handled, and that the trustees have sold some of the real estate and made loans to themselves in controversion of the purposes of the trust. It then relates the fact of the filing of the previous suit and the subsequent 'memorandum agreement' in respect to annual accounting hereinbefore mentioned and alleges that the trustees have failed and refused to make such accounting for all years after 1957.

For answer to plaintiff's amended petition, the defendant trustees deny that plaintiff has no knowledge as to how the estate is being handled and state that she has been repeatedly advised that the records of all transactions are available to her and that she has at all times been kept informed. Defendants further plead that they have offered to make loans of cash from the trust to plaintiff one the same terms they have made to themselves, but that on each loan they have required security, and that the plaintiff requested that she be permitted to borrow funds in equal amount as the trustees but that she refused to give security therefor. The trustees further plead that they at time of filing answer had on deposit the sum of $12,000 available for the care of the widow, Sarah, the beneficiary of said trust. Further in said answer they deny the execution of the memorandum agreement hereinbefore mentioned.

At the trial of the cause, plaintiff called the two trustees to the stand as witnesses and the defendants in turn called Flora. These were the only witnesses.

William on being presented with the 'memorandum agreement' admitted his signature and his brother's signature thereon, but stated that he did not remember any such agreement. Walter also admitted his signature but said he had no memory or record of such agreement and that his signature 'could be easily copied.' We note further that the acknowledgement of William and Walter Asher to this memorandum agreement was taken by a member of the firm of lawyers which prepared the answer denying the execution of such agreement. We would not insinuate that the trustees might not have known that Flora had, or had procured, a copy of this agreement and therefore felt safe in denying its very existence. But we do suggest that the ignorance and complete lack of recollection of such trustees in respect to this agreement concerning their accounting obligations have displayed such faulty and failing memories which should be considered in determining whether they are capable of continuing in their duties; which necessarily must involve memory and recollection, investments, obligations, and other matters pertaining to the proper management of the trust.

The trustees acknowledge that they made no accounting or report to any court since the beginning of their trusteeship (until after trial of this case). They do say they made an annual statement or accounting, such being 'strictly an expenditure and receipts balance sheet' which did not show the notes; but to whom, or for what purposes, or in what detail, we are unable to ascertain. Apparently they made one accounting (1957) to Flora Morrison, but they agree that they have made none to her since. One trustee stated that they had made a written accounting to a Mr. Donnelly, but the record is silent as to who this Mr. Donnelly was, whether he was a tax accountant, a friend, or an attorney for Flora in the first suit, which resulted in the 1957 accounting. It is evidence that no regular annual reports or accounts have been made, either to any court, or to any beneficiary of the trust except for the one report made to Flora after, or in connection with, the 1957 suit and agreement. The trustees do say that they invited Flora to come up and look over the records and notes, but she did not do so. She says she would not have understood them had she done so. There is evidence of hostility between at least one of the trustees and Flora. The trustees say that this is because she wanted to borrow money without security (the same as they had been doing?) and they refused because she would not provide security. We will not go into all the details, but it is obvious that there was considerable hostility, whatever the cause. The two suits reflect that.

In the latter part of 1957, the trustees sold a portion of the land (referred to as the 'Null sale') for $15,000. Shortly thereafter, trustee William borrowed from the estate the additional sum of $6500 at 4% interest. This appears to have been upon his own personal note. There is some rather garbled explanation (?) of this in the record, but in...