Nelson v. McClean's Estate

• Decision Date: 06 April 1942
• Parties: MARION FRANCES NELSON, APPELLANT, v. ESTATE OF CLAIR F. McCLEAN, DECEASED, GERTRUDE C. BRAND, ADMINISTRATRIX, AND GERTRUDE C. BRAND, RESPONDENTS
• Court: Kansas Court of Appeals

161 S.W.2d 676

236 Mo.App. 718

MARION FRANCES NELSON, APPELLANT, v. ESTATE OF CLAIR F. McCLEAN, DECEASED, GERTRUDE C. BRAND, ADMINISTRATRIX, AND GERTRUDE C. BRAND, RESPONDENTS

Court of Appeals of Missouri, Kansas City

April 6, 1942

Rehearing Denied May 4, 1942.

Appeal from Circuit Court of Clinton County.--Hon. R. R. Bridgeman Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Gillihan & Gillihan and Cross & Cross for appellant.

The court erred in not allowing appellant's claim in the sum of $ 915.35, as a preference, and impressing the entire estate with a trust for its payment. Orr v. St. Louis Union Trust Co., 236 S.W. 649; Leonard v Latimer, 67 Mo.App. 138; Harrison v. Smith, 83 Mo. 210; Stoller v. Coates, 88 Mo. 514; Benz v. Powell, 93 S.W.2d 877; Tufts v. Latshaw, 172 Mo. 357; Nichols v. Bank of Syracuse, 278 S.W. 793; Lorado v. Lacey, 88 S.W.2d 353; Croghan et al. v. Savings Trust Co., 85 S.W.2d 239; Horigan Realty Co. v. Flynn, 253 S.W. 403; Clay v. Walker, 6 S.W.2d 961; Tiernan's Ex'r v. Security Bldge. & Loan Ass'n, 142 Mo. 135.

Walter Trice and John J. Robison for respondents.

(a) The appellant's only assignment of error is too general to be available as ground of error and too general to be considered upon appeal. Pfotenhauer v. Redway (Mo.), 271 S.W. 529; Greensfelder v. Witte Hardware Co. (Mo. App.), 175 S.W. 275; Collins v. Smith, 182 S.W. 1087; Shaw v. American Ins. Union, 33 S.W.2d 1052, 1056; Cunningham v. Kansas City (Mo. App.), 38 S.W.2d 734, 735; Garvey v. Piel et al. (Mo.), 43 S.W.2d 774, 775; Kunst et al. v. Walker et al. (Mo. App.), 43 S.W.2d 886, 890; St. Louis-San Francisco Ry. Co. v. Dillard (Mo.), 43 S.W.2d 1034, 1036; Clark v. Atchison & Eastern Bridge Co. (Mo.), 62 S.W.2d 1079, 1082; Huber v. Paradis et ux., 101 S.W.2d 748, 751; Magee v. Hayden (Mo. App.), 111 S.W.2d 239, 241; Mulanix v. Reeves (Mo. App.), 112 S.W.2d 101, 110. (b) The trial court did not err in finding for respondents and dismissing appellant's bill. None of the funds appellant seeks to have impressed ever reached said estate or came into the hands of the administratrix, therefore, the court could not find for appellant. 24 C. J., p. 427; Phillips et al. v. Overfield et al., 100 Mo. 466, 473, 475; Bircher v. Walther, 163 Mo. 461, 467, 469; Raymuth Real Estate & Building Co. v. Robinson, 204 S.W. 276, 277, 280, 281; Beck v. Krembs, 213 S.W. 487, 488; Benz v. Powell et al., 93 S.W.2d 877, 879, 880.

SPERRY, C. Boyer, C., concurs.

OPINION

SPERRY, C.--

Marion Frances Nelson, whom we shall refer to as plaintiff, sued the estate of Clair F. McClean, deceased, Gertrude C. Brand, Administratrix, whom we shall refer to as defendant. Plaintiff sought to impress a trust in her favor as against the assets of said estate in the hands of defendant. Judgment was for defendant and plaintiff has appealed.

Defendant urges that, under our rules, there is nothing before us for review because plaintiff's assignment of error is too general and indefinite and preserves no error for consideration. The assignment of error is as follows: "The trial court erred in overruling plaintiff's motion for new trial." The courts have repeatedly held such an assignment to be too indefinite for consideration. [Shaw v. Am. Ins. Union, 33 S.W.2d 1052, 1056; Huber et al. v. Paradise et ux., 101 S.W.2d 748, 751.]

In this case, however, in her "points and authorities" we think plaintiff states why she complains of the action of the trial court, said that such is a substantial compliance with our rules. [Joslin v. Chicago, Milwaukee & St. Paul Railways Company, 319 Mo. 250, 267, 3 S.W.2d 352.] This is an equity case and, on appeal, is to be considered de novo. Voelpel v. Wuensche, 74 S.W.2d 14, 19.] In cases tried by the court sitting as a jury, the courts "are very liberal touching matters of specification of error . . ." [Heart of Am. Lumber Co. v. Wyatt Lumber Co., 59 S.W.2d 800, 801.] Certainly the courts should be as liberal in equity cases as they are in law cases tried to the court, because in equity cases the entire record, on the facts and the law, is reviewed on appeal, and such judgment is rendered as the record and good conscience supports. We think plaintiff, in her points and authorities, reasonably complies with the rules on this question, especially since this is a "one point" case.

This is an equity case and there is no conflict of evidence, such as requires application of the rule, usually followed, that deference should be given to the findings of the chancellor on the facts. [Voelpel v. Wuensche, supra.]

Plaintiff is the foster daughter of Nannie Cox McClean and of Clair F. McClean. Nannie Cox McClean died testate, prior to the death of her husband, Clair F. McClean, seized and possessed of certain lands in Kansas. By her will she devised said lands to her husband for life with the remainder to plaintiff. The will also provided that said lands might be sold by her husband and, in that event, that the proceeds thereof should be held and treated just as though such proceeds were real estate.

Thereafter, plaintiff and Clair F. McClean joined in a deed conveying said lands, whereby same were sold for the sum of $ 915.35 cash, which sum was paid to Clair F. McClean, who deposited it to his personal account in the bank with which he did business, under date of June 25, 1938. On July 9, 1938, Mr. McClean deposited $ 150 of his own funds in the same account, to his credit. The record does not disclose the details of withdrawal of the money so deposited, but does show that on August 17, 1938, deceased had on deposit in his account, and to his credit, the amount of $ 123.48. Therefore more than the amount of the sale price of the land had, at that time, been checked out. McClean did not again marry and, at the time of his death, January 14, 1939, he had on deposit in this account the sum of $ 24.70, and in another bank the sum of $ 4.39. These two sums, totaling $ 29.09, constituted all of the cash that defendant administratrix received into her custody from his estate; but the inventory of the assets of the estate of deceased, filed in probate court under date of January 20, 1939, disclosed that the total value of assets, same being personal property of various kinds, which came into custody of defendant, was $ 4871.74. No part of the $ 915.35, representing the proceeds of the sale of the land, was ever paid to or received by plaintiff. Probate records in evidence also established that a semi-annual settlement of the affairs of said estate was filed and approved under date of August 21, 1939, and that defendant charged herself therein with cash receipts, derived from liquidation of assets of said estate, in the amount of $ 1621.95, and that she took credit for expenditures totaling $ 237.74, leaving a balance at that time, with which she stood charged, in the amount of $ 1384.21. From an examination of the inventory and of the settlement it is apparent that defendant had not completed liquidation of assets when said settlement was filed. No demand was ever filed by plaintiff against this estate.

This suit was instituted February 16, 1939, in the circuit court of Clinton county, the home of deceased at the time of death, and the county where administration is being had, for the purpose of establishing that deceased held said sum of $ 915.35, at the time of his death, as a trust fund for plaintiff. Plaintiff seeks to have the estate funds in the custody of defendant impressed with said trust to the extent of $ 915.35.

The chancellor rendered a decree denying plaintiff the relief prayed but gave no reason therefor. We shall review the case from the standpoint of the respective positions taken by plaintiff and defendant in briefs herein submitted. Plaintiff contends that she is entitled to the relief sought because the fund received by deceased from sale of the land constituted a trust fund, was in his hands at the time of his death, that it passed into the hands of defendant and swelled the assets of the estate; and that she is entitled to the relief prayed. She contends that it is not necessary, under the modern equity rule, to actually trace the fund into the estate and there identify it under the "earmark doctrine," in order to establish a trust. Defendant says there is no evidence whatever tending to show that said fund "ever reached said estate or came into the hands of the administratrix," and that the court is and was wholly unauthorized to find for plaintiff. There is no doubt but that Mr. McClean received and held the $ 915.35 here involved, in trust; that he commingled it with his own money; and that he held it for plaintiff as cestui que trust. Defendant does not contend otherwise. The law formerly was that when trust funds had been commingled with other money so that the cestui que trust could not identify it, then it could not be recovered in equity. But that rule has long since been abandoned. [Harrison v. Smith, 83 Mo. 210, 217; Stoller v. Coates, 88 Mo. 514, 520; Leonard v. Latimer, 67 Mo.App. 138, 148; Orr v. St. Louis Union Trust Co., 236 S.W. 642, 649.]

The modern rules are stated by TRIMBLE, J., in Horigan Realty Company v. Flynn, 253 S.W. 403, 405, to be as follows:

"First which still rests on the former basis, that the owner could recover as owner when it was shown that the trust property or fund, or its substitute, formed an actual part of the total property going into the hands of the assignee or representative, and therefore the amount so received was greater than the same would have been were it not for the existence therein of the trust property.

"Second that a plaintiff could likewise recover when it appeared that although the trustee had used up or expended the trust property in his...