Niederberg v. Golluber
| Decision Date | 03 June 1942 |
| Docket Number | 37808 |
| Citation | 162 S.W.2d 592 |
| Parties | NIEDERBERG v. GOLLUBER et al |
| Court | Missouri Supreme Court |
Taylor R. Young and Leo P. Pokres, both of St. Louis, for appellants.
John C Tobin and James Anderson, both of St. Louis, for respondents Modern Auto Repair & Reconstruction Co. and Aaron R. Solomon.
Jerome M. Steiner, of St. Louis, for respondents Rez Hat Co. Hortense Cohen, Robert G. Heitert, Wayne O. Gorla, Zelma Vallow, and Elmer J. Leimkuehler.
Jacob Mellman, of St. Louis, for respondent Sol. E. Rubenstein Trustee.
Dubinsky & Duggan of St. Louis, for respondents Edna C. Golluber and Joseph Golluber.
DALTON, Commissioner.
Action in equity (1) for a money judgment in the sum of $ 14,400 'against the defendants and each of them'; (2) to have the judgment declared a lien against certain real estate of two of the individual defendants and 'against all the assets' of a corporate defendant; (3) to have the liens foreclosed and the proceeds applied to the payment of the judgment and costs; (4) for the appointment of a receiver to collect the rents and manage said real estate; (5) for the appointment of a receiver 'to take over all assets and management of the Rez Hat Company (a corporation) pending a final hearing'; and (6) for other relief. Nine individuals and four (Missouri) corporations are named in the petition as defendants. Plaintiffs subsequently dismissed as to two of the corporations. The remaining defendants demurred separately to the petition and their demurrers were sustained. Plaintiffs declined to plead further and a judgment of dismissal was entered. Plaintiffs have appealed, and assign error on the action of the trial court in sustaining the demurrers to the petition and dismissing the cause.
The petition in a single count states that Leo Niederberg is the widower of Effie V. Niederberg, deceased; that he is the duly qualified and acting administrator of her estate (administration pending in the probate court of the City of St. Louis); and that the suit is instituted by him individually and as such administrator. The children, if any, and legal heirs of Effie V. Niederberg, deceased, are not named. The date of the appointment of the administrator is not given.
Edna C. Golluber, Hortense L. Cohen and Effie Niederberg, deceased, are alleged to be 'the sole and only heirs at law and beneficiaries under the last wills of Charles Less and Viola Less.' Viola Less is described as the mother of Edna C. Golluber and Effie V. Niederberg, deceased, and as the grandmother of Hortense L. Cohen. It is alleged that Viola Less departed this life on September 24, 1937, in the City of St. Louis, leaving a large estate consisting of 387 shares of the capital stock of defendant, Modern Auto Repair & Reconstruction Company, a corporation, and other personal property, all of a reasonable value of approximately $ 50,000; and that she left a will by which Effie V. Niederberg was entitled to receive from the estate of her mother $ 200 per month from the date of her mother's death to the date of the death of Effie V. Niederberg, 15 months later (December 8, 1938, according to appellant's brief). It is alleged that Edna C. Golluber and Aaron R. Solomon are coadministrators with will annexed of the Estate of Viola Less, deceased; that they were duly appointed by the probate court of said city (date of appointment and whether still acting is not stated); that Sol E. Rubenstein 'is now and at all times hereinafter stated has been the duly appointed, acting and qualified trustee of the estate of Viola Less'; and that 'Effie V. Niederberg, was entitled to be paid by the executors and trustees of the estate of Viola Less, the full sum of $ 3000.00,' but that she received nothing. The date of appointment of Sol E. Rubenstein as trustee and by whom is not given, but he is a trustee of a trust created under the will of Viola Less, deceased, according to respondents' brief.
It is alleged that Effie V. Niederberg's interest in her mother's estate 'has been confiscated and appropriated by the defendants and each of them, to the use and benefit of the defendants Joseph Golluber, Edna C. Golluber and Hortense L. Cohen, as herein set forth.' (It does not appear whether the co-administrators or the trustee had custody of the estate at said time.) Plaintiffs then alleged: 'That the defendant, Aaron R. Solomon, is now and at all times herein stated has been the president and owned and controlled all of the stock of the defendant, Modern Auto Repair and Reconstruction Company, saving and excepting said 387 shares so owned by the Estate of Viola Less, and that the defendants and each of them, acting in combination, for the purpose of defrauding the said Effie V. Niederberg, during her lifetime, and her estate, after her death, and of defrauding the plaintiff as the widower of his dower rights in and to the estate of Effie V. Niederberg, did, during the month of June, 1938, and the month of January, 1939, cause to be exchanged all of the stock owned by the Estate of Viola Less in the defendant Modern Auto Repair and Reconstruction Company, a corporation, to the defendant Aaron R. Solomon, in consideration of the defendant Aaron R. Solomon causing the defendant Modern Auto Repair and Reconstruction Company, a corporation, to convey by general warranty deed to the defendants Edna C. Golluber and Hortense L. Cohen the following described real estate, * * * situate in the City of St. Louis (particularly described), and which said conveyances did cause the Estate of Viola Less to be wholly insolvent, at a time when the defendants, Aaron R. Solomon and Edna C. Golluber, were acting as co-administrators of said Estate, and the title to said real estate was obtained by the said Edna C. Golluber and Hortense L. Cohen with full knowledge of the fraud that was being practiced upon the said Effie V. Niederberg during her lifetime, and upon her estate after her death, and upon the plaintiff, Leo Niederberg, as husband of the said Effie V. Neiderberg, and plaintiffs are entitled to follow the bequest of the said Effie V. Niederberg, given to her under the will of Viola Less, unto the foregoing described real estate, and to have said real estate sold and the proceeds thereof, after paying the costs and expenses of court, paid over to plaintiffs, in the full sum of $ 3,000.00, with interest from the date when said payments became due to date at the rate of 6% per annum.' (It should be noted that while the caption of the petition refers to defendants Edna C. Golluber and Aaron R. Solomon, individually, the body of the petition refers to them, both as individuals and in their representative capacities as 'co-administrators with the will annexed, of the Estate of Viola Less,' deceased.)
Plaintiffs next allege: 'That in furtherance of said conspiracy, defendants and each of them, well knowing that the deceased, Effie V. Niederberg, was a large stockholder in the defendant Modern Auto Repair and Reconstruction Company, a corporation, did, in pursuance of their said plan to deprive the said Effie V. Niederberg of all her property, wrongfully convert to their own use all stock owned by her in said Modern Auto Repair and Reconstruction Company, a corporation, which the plaintiffs allege to have consisted of 39 1/2 shares of the common stock of said Modern Auto Repair and Reconstruction Company, a corporation, and 4.69 shares of preferred stock in said corporation, all having a fair, reasonable, market value of $ 4,500.00.' (The date of the conversion and how carried into effect is not stated.)
It is then alleged: 'That subsequent to the date of the death of Effie V. Niederberg, deceased, the defendants and each of them, in pursuance of the plan of defendants to deprive the Estate of Effie V. Niederberg of all assets and property belonging to her at the date of her death, did wrongfully, and with force, break into the apartment of the deceased immediately following her death, and take therefrom and cart away, all of the personal household goods, linens, jewelry, books, wearing apparel, furniture, fixtures, rugs, curtains, etc., and wrongfully converted the same to their own uses, said personal property having a fair, reasonable market value of $ 5,000.00.' (A detailed description of the property is set out, including a check to Effie V. Niederberg.) The petition alleged: 'That said defendants and each of them, wrongfully sold and converted said household goods, jewelry, etc., into cash and invested the proceeds thereof in the defendants Rez Hat Company, Golluber Millinery Company and Jo-Ed Company, by reason of all of which, plaintiffs are entitled to follow said trust fund into all of the assets of said corporations, and to have the same sold for the purpose of satisfying a judgment which the plaintiffs are entitled to in this proceeding.' (Plaintiffs subsequently dismissed as to the two last named corporations.) It is further alleged that: 'The defendants Robert C. Heitert, Wayne O. Gorla, Zelma Vallow, Elmer J. Leimkuehler * * * pretend to be the stockholders and officers of the defendant Rez Hat Company, but in truth and in fact are mere trustees and hold all stock by them held in said corporation as trustees for the defendants Joseph Golluber and Edna C. Golluber.'
The petition next alleged 'that the deceased, Effie V Niederberg, was a beneficiary under the last will of Charles Less, her father, by the terms of which she was entitled to an undivided one-third interest in' (particularly described) real estate in the City of St. Louis; that said real estate was subject to a first deed of trust 'held, owned and controlled by defendants Joseph Golluber and Edna C. Golluber'; that the interest of Effie V. Niederberg in the equity was of the...
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