National Board of Christian Women's Board of Missions of Christian Church of United States of America v. Fry

• Decision Date: 07 April 1922
• Citation: 239 S.W. 519,293 Mo. 399
• Parties: NATIONAL BOARD OF CHRISTIAN WOMEN'S BOARD OF MISSIONS OF THE CHRISTIAN CHURCH OF THE UNITED STATES OF AMERICA, Appellant v. W. W. FRY, Executor of the Estate of MOLLIE R. FRENCH, et al
• Court: Missouri Supreme Court

239 S.W. 519

293 Mo. 399

NATIONAL BOARD OF CHRISTIAN WOMEN'S BOARD OF MISSIONS OF THE CHRISTIAN CHURCH OF THE UNITED STATES OF AMERICA, Appellant v. W. W. FRY, Executor of the Estate of MOLLIE R. FRENCH, et al

Supreme Court of Missouri, Second Division

April 7, 1922

Rehearing Denied 293 Mo. 399 at 414.

Appeal from Audrain Circuit Court. -- Hon. Ernest S. Gantt, Judge.

Reversed and remanded (with directions).

Hostetter & Haley and Clarence A. Barnes for appellant.

(1) Title to the real estate did not pass to defendants McPheeters, because such attempted conveyance constituted fraud upon the Probate Court of Audrain County, the plaintiff, and the decedent. The guardian of Mollie French insane ward, could only sell the real estate under order of the Probate Court of Audrain County. This order could only be obtained upon two theories. (a) For the discharge of debts or the maintenance of the ward. Sec. 472, R. S. 1919. (b) For reinvestment. Sec. 477, R. S. 1919. (c) The order of the probate court to sell the property for reinvestment was not renewed from term to term, nor based upon knowledge of this will soon to be probated. (2) If it be claimed that title to the real estate actually vested in McPheeters, then the equitable estate arising from such conversion of the form of the property from real estate into money vested in plaintiff, and the demurrers of the defendants should have been overruled, and the finding should have been for plaintiff for the full amount of the moneys paid by McPheeters. 3 Pomeroy's Equity Jur. (3 Ed.) pp. 2304-2334, secs. 1159-1178. (3) The judgment, decision, and decree of the court should have granted plaintiff equitable relief. Even though the sale of the real estate was accomplished by the paramount authority of the probate court, and the sale and conversion thereof be either single or double, the plaintiff was entitled to recover, especially so as against defendant Fry. 3 Pomeroy's Equity Jur. (3 Ed.) secs. 1167-1178. (4) By standing on the demurrers, every reasonable inference and intendment that can be drawn from the testimony in favor of plaintiff and against defendants is to be so drawn.

E. C. Anderson, W. W. Botts, Arthur Bruton, W. W. Fry, Jr., McBaine & Clark and R. D. Rodgers for respondent.

(1) A will takes effect as of the death of the testator. So, when there was a sale of the property by the guardian and curator of Mrs. French, the devisee (appellant) was neither entitled to the property from the purchaser nor the money received as the purchase price. Wills, 49 Cent. Dig. sec. 1983; Wills, 20 Dec. Dig. sec. 767; I Underhill on Wills, p. 567; I Woerner on Adm., sec. 53, p. 106; 2 Jarman on Wills (6 Ed.) p. 1093; Cozzens v. Jamison, 12 Mo.App. 457; Napton v. Leaton, 71 Mo. 364; Dunlap v. Hart, 274 Mo. 606; Freer v. Freer, 22 Chan. Div. 622; Secs. 480, 512, 553, 777, R. S. 1919; Ametrano v. Downs, 170 N.Y. 388; Pleasant's Appeal, 77 Pa. 356; Johnson v. Osborn, 62 N.C. 59; Frewen v. Frewen, L. R. 10 Ch. App. 610; 33 L. T. N. S. 43. (2) There was no proof whatsoever of fraud by W. W. Fry and Dorothy Norris upon appellant and the Probate Court of Audrain County. Lieber v. Lieber, 239 Mo. 1; Murphy v. DeFrance, 101 Mo. 157; Payne v. O'Shea, 84 Mo. 129; Hamilton v. McLean, 139 Mo. 678; Nichols v. Stevens, 123 Mo. 96; Moodey v. Peyton, 135 Mo. 489; Railroad v. Merrialles, 182 Mo. 126. (3) The property was not sold, without a renewal of the order of sale. The order was renewed February, 1917. (4) The judgment of the probate court (a) appointing the guardian and curator, and (b) ordering the sale and (c) approving it, are judgments of a court of record and are not open to collateral attack for irregularity. Crow v. Meyersieck, 88 Mo. 411; Harter v. Petty, 266 Mo. 295; Wilson v. Wilson, 255 Mo. 528; Camden v. Plain, 91 Mo. 117; Johnson v. Beasley, 65 Mo. 250; McKenzie v. Donnell, 151 Mo. 431; Conway v. Robinson, 178 S.W. 154. (5) The item of the French will attempting to dispose of this property is void, because (a) its terms are contradictory and meaningless, and (b) the object of the trust is too indefinite to be carried out. Jones v. Jones, 223 Mo. 450; Jones v. Patterson, 271 Mo. 1.

R. D. Rodgers and J. W. Buffington for respondent McPheeters.

(1) The probate court's judgment declaring Mollie R. French to be incapable of managing her affairs, is valid and binding. Sec. 1, p. 94, Sec. 1, p. 95, Laws 1913. (2) The proceedings in the probate court affecting the sale of the premises in question were regular, valid and binding. Robbins v. Boulware, 190 Mo. 33; Sherwood v. Baker, 105 Mo. 472; Bray v. Adams, 114 Mo. 486; Rhodes v. Bell, 190 Mo. 160; Rugle v. Webster, 55 Mo. 246; Rowden v. Brown, 91 Mo. 429; Wilkerson v. Allen, 67 Mo. 508; Blickensderffer v. Henna, 231 Mo. 110; Oldaker v. Spiking, 210 S.W. 62.

OPINION

HIGBEE, P. J.

This is an action to determine title to certain property owned by Mrs. Mollie R. French, who died testate April 4, 1918, or for alternative relief.

Mrs. French owned a residence property on Love Street in Mexico, Missouri. Her husband, William H. French, had predeceased her, leaving her the property in question, of the value of $ 7,000 or $ 8,000, personal estate of the value of about $ 10,000, and other real estate. On January 9, 1914, Mrs. French, who had no children, executed her will. Item 1 directs the payment of all her debts. The will then contains the following bequests in separate items: 2, to Dorothy R. Norris all her bank stock; 3, $ 3000 to Mollie R. Prather; 4, $ 1000 to Thomas R. Rodman; 5, $ 300 to Margaret Potts McPheeters; 6, her dining room furniture to Lavenia Norris; 7, silverware, chinaware and tableware to Lavenia Norris and Mrs. Charles Prather; 8, large diamond ring and small cameo ring and emerald ring to Dorothy Norris; 9, $ 1000 to a trustee, net income to be paid annually to Ida Ricketts, at her death principal to be paid to Dorothy Norris; 10, maple set of furniture and mahogany desk to Mrs. Charles Prather. Item 11 reads as follows:

"Item Eleven. I give and bequeath my residence property on which I now reside, situate on Love Street in Mexico, Missouri, and my diamond brooch to the National Board of Christian Women's Board of Missions of the Christian Church of the United States of America. My executor herein shall have the right to dispose of said property as he may think best and use the proceeds of same for Home Mission work in the United States as they, the said Board, may think best, the same to be received and handled and used as the W. H. French Memorial Fund for said mission work."

Item 12 bequeaths the residue of her estate to Dorothy Norris. All the legatees except the plaintiff are joined as co-defendants with W. W. Fry, Executor, and other defendants hereinafter named.

On May 22, 1914, Mr. Fry filed an information in the Probate Court of Audrain County, charging that Mrs. French was a person of unsound mind and incapable of managing her affairs, and praying that an inquiry be had. On May 26th the court, without the intervention of a jury, held an inquiry and entered of record the following judgment:

"In re Mollie R. French. Now at this day, this cause coming on to be heard, it being the matter of inquiry into the condition of mind of Mollie R. French, comes W. W. Fry and witnesses and answer ready for inquiry and the said Mollie R. French, though duly served with notice in person comes not but makes default, and the cause being submitted to the court, and the court having heard the testimony of competent witnesses as to the condition of mind of said Mollie R. French, does find that she is a person of unsound mind and incapable of managing her affairs, and it is so adjudged, and it is ordered that a guardian of her person and estate be appointed."

Thereupon W. W. Fry was appointed to act as such guardian and gave bond in the sum of $ 10,000, with sureties approved by the court. On July 17, 1914, he presented to the probate court a petition for the sale of a vacant lot on Calhoun Street, alleged to be of the value of $ 1200, and for a tract on Love Street valued at between $ 6,000 and $ 7,000, for reinvestment, on which Mrs. French's dwelling house and outbuildings were situated, which were said to be in bad repair. This second tract embraced nearly all the tract devised to plaintiff by Item 11 of the will. The court, on July 27, 1914, accordingly made an order that the property mentioned be sold by the guardian, at either public or private sale, for the purpose of reinvestment. At the August term, 1914, Mr. Fry reported the sale of the vacant lot to Kate H. Hammond, Mary V. and Tine C. Houston, for the sum of $ 1200, which was approved and a deed was accordingly made to said purchasers, who were joined as defendants in this action. This lot is not mentioned in the amended petition. The order of sale was renewed at the February term, 1917, at which term, on March 5, 1917, the guardian reported the sale of the other tract on Love Street to James E. and Roy H. McPheeters for the sum of $ 5,000, which report was approved by the court and a deed was accordingly made to said purchasers, who were also joined as co-defendants in this action.

The guardian's appraisement included 47 shares of bank stock valued at $ 6,110 and diamonds and jewelry appraised at $ 1,000, and all the other specific bequests. His third settlement, made May 14, 1917, included the $ 5,000 from the sale to the McPheeters. It showed a cash balance in the hands of the guardian of $ 9,237.50. This does not include the bank stock. The final settlement, approved April 22, 1918, showed a cash balance due the estate of $ 8,512.24.

On the death of Mrs. French, on April 4, 1918, her will was admitted to probate, and on April 8, 1918, letters...