Odom v. Langston

• Decision Date: 27 August 1943
• Docket Number: 37707
• Citation: 173 S.W.2d 826,351 Mo. 609
• Parties: A. D. Odom et al., Appellants, v. Louise W. Langston et al
• Court: Missouri Supreme Court

173 S.W.2d 826

351 Mo. 609

A. D. Odom et al., Appellants, v. Louise W. Langston et al

No. 37707

Supreme Court of Missouri

August 27, 1943

Appeal from Douglas Circuit Court; Hon. Tom R. Moore Judge.

Affirmed.

J N. Burroughs, H. D. Green and Paul Barrett for appellants.

(1) The petition of appellants states a good cause of action in its charges of fraud and undue influence. The same identical allegations were made in an action to contest the purported will of the deceased, Barsha A. Langston, and that petition was upheld in a recent decision of this court. Odom v Langston, 152 S.W.2d 124. (2) An estate that is undisposed of by reason of some ruling of law prohibiting it or disposed of by an instrument that was voidable by the grantor on account of fraud and undue influence, reverts to the grantor or upon his death belongs to the heirs. Sanford v. Van Pelt, 282 S.W. 1029; Platt v. Huegel, 32 S.W.2d 605; Spradlin v. Pipkin, 15 Mo. 119. (3) And where an estate is devised or given to various persons in aliquot parts or on a percentage basis, as in the instant case, if any part fails to vest in the devisee or donee by reason of death or by operation of law, that part or portion reverts to the original estate and belongs to the heirs. Plummer v. Brown, 287 S.W. 316. (4) The executors will not account for and they cannot sue for the property, for they fraudulently obtained possession of the property and retain possession of the same by virtue of the trust agreement, and would therefore be in the dual position of both plaintiffs and defendants or suing themselves. This the law will not tolerate in any case. Walker v. James, 85 S.W.2d 876. (5) Any state or circumstances that leave the heirs as the only parties who can or will sue to protect their interests will give them an equitable right to bring the action. McDowell v. Orphan School, 87 Mo.App. 386; Richardson v. Cole, 160 Mo. 372; Griesel v. Jones, 123 Mo.App. 45; Loud v. Hammontree, 77 S.W.2d 1006; Toler v. Judd, 171 S.W. 339. (6) Dependants cannot be made to account for the property under statutory proceedings to discover assets for the reason that they are holding under a claim of right, which cannot be tried and determined in proceedings of that character. Johnson v. Johnson, 82 Mo.App. 350. (7) The only question that can be determined in a will contest is the validity of the will, so there could be no adjudication in the will contest of the matters here involved. Goldecke v. Lindherst, 213 S.W. 43; Land v. Trust Co., 249 S.W. 629. (8) The parties are not the same, the issues are not the same, the relief sought is not the same, the subject matter is not the same, the character of the actions is not the same, nor is the remedy the same, and in support of these points we cite the following: Thompson v. Holden, 117 Mo. 118; Callahan v. Davis, 125 Mo. 27; Trimble v. K. C. Ry. Co., 180 Mo. 574; Courtney v. Fidelity Assn., 120 Mo.App. 117: Turner v. Edmonson, 212 Mo. 377; Smith v. Sedalia, 244 Mo. 107; Libbe v. Libbe, 157 Mo.App. 210.

A. W. Landis, M. E. Marrow, Herman Pufahl, R. L. Hyder and Scarritt, Jones & Gordon for respondents.

(1) The petition does not state a cause of action in favor of the plaintiffs. The heirs of Barsha A. Langston cannot maintain a suit to set aside a conveyance of her property made by her in her lifetime or to recover personal property belonging to decedent for the reason that all personal property, inclusive of choses in action, goes to the legal representative of the decedent and not to her heirs. Toler v. Judd, 262 Mo. 344, 171 S.W. 339; Pullis v. Pullis, 178 Mo. 683, 77 S.W. 753; Wass v. Hammontree, 77 S.W.2d 1006; Leakey v. Maupin, 10 Mo. 368; Hellmann v. Wellenkamp, 71 Mo. 407; State to Use v. Fulton, 35 Mo. 323; Smith v. Denny, 37 Mo. 20; Vastine v. Divan, 42 Mo. 269; Brueggeman v. Jurgensen, 24 Mo. 87; Daly v. Wilbur, 209 Mo.App. 54; Orchard v. Store Co., 225 Mo. 414, 125 S.W. 486; Hanenkamp's Adm. v. Borgmier, 32 Mo. 569; Becraft v. Lewis, 41 Mo.App. 546; Griesel v. Jones, 123 Mo.App. 45, 99 S.W. 769; Jacobs v. Maloney, 64 Mo.App. 270; State ex rel. v. Moore, 18 Mo.App. 406. (2) Since there is a will contest suit pending involving the will of Barsha A. Langston and said will disposes of all of her property and estate to other persons, these plaintiffs do not even have an expectant interest or claim in and to her property and estate unless and until the final adjudication in the will suit should be to the effect that Barsha A. Langston died intestate. This suit is, therefore, premature. When the petition shows on its face that the alleged cause of action had been accrued at the time of filing suit, it is subject to demurrer. Heard v. Ritchey, 112 Mo. 516, 20 S.W. 799; Parker-Washington Co. v. Dodd, 305 Mo. 171, 246 S.W. 651; Jegglin v. Orr, 224 Mo.App. 773, 29 S.W.2d 721; Chapman v. Currie, 51 Mo.App. 40. (3) All properties disposed of by conveyances made by the testatrix in her lifetime, which for any reason are declared void, were hers at the time of her death, and go by testatrix' will to the beneficiaries therein named. Every presumption will be indulged that testatrix died testate as to all of her property. 69 C. J. 421; Borland on Law of Wills and Administration, p. 336; Gillilan v. Gillilan, 278 Mo. 99, 212 S.W. 348; Givens v. Ott, 222 Mo. 395, 121 S.W. 23. (4) The petition alleges that a copy of the trust instrument is attached to the petition as an exhibit, but that does not make it a part of the petition, or a part of the record, or bring it before the court for its consideration. Coal & Iron Co. v. Long, 231 Mo. 605, 133 S.W. 35; Curry v. Lackey, 35 Mo. 389; Robinson v. Levy, 217 Mo. 498, 117 S.W. 577; State ex rel. Fenn v. McQuillin, 256 Mo. 693, 165 S.W. 713; Merchants Exchange Bank v. Bankers Life Ins. Co., 104 S.W.2d 744; Ransom v. Potomac Ins. Co. of District of Columbia, 226 Mo.App. 664, 45 S.W.2d 95; Wood v. General Ins. Co. of America, 229 Mo.App. 296, 77 S.W.2d 167.

OPINION

Ellison, J.

This case was originally appealed to this court by the plaintiffs below, who were cast on a demurrer to both counts of their "last amended" petition in the circuit court of Douglas County. The appellants, as all the heirs of Mrs. Barsha A. Langston, deceased, of West Plains, Missouri, seek in the first count of their petition to set aside a written trust instrument executed by her covering personal property, and to recover the property for themselves, because of alleged fraud and undue influence exercised in the procurement of the instrument, and for legal infirmities therein. The second count sought the same relief, but more especially because of the legal infirmities. However, appellants concede in an additional brief filed in the Court of Appeals that if the demurrer had been directed at the second count alone it would have been well taken. In a reply brief filed in this court they say a general demurrer to a petition containing two or more counts, any one of which is good, should be overruled. And their aforesaid additional brief and an additional reply brief both submit the conclusion that the first count of the petition is good. So we confine our discussion to that count.

We transferred the cause to the Springfield Court of Appeals on the ground that we did not have appellate jurisdiction because the record fails affirmatively to show the amount in dispute exceeds $ 7500. ^[1] See Odom v. Langston (Mo. Div. 2), 159 S.W.2d 686. The Court of Appeals reached a contrary conclusion and has retransferred the cause to this court on the theory that we probably had inadvertently overlooked certain facts in the record bearing on that question. Odom v. Langston (Mo. App.), 170 S.W.2d 589. Two years ago on a will contest between the same parties involving the same property, we took jurisdiction. Odom v. Langston (Div. 2), 347 Mo. 1201, 152 S.W.2d 124.

The point stressed in the opinion of the Court of Appeals is that the first count of the petition alleges the property covered by the trust and ^[*] "taken over and now held by the . . . trustees (thereunder) consists of money, notes, government bonds, industrial stocks and bonds and other securities of the value of about ninety-five thousand dollars." The opinion points out that the word about means substantially, approximately, almost, nearly, etc. We agree to that. Only recently we made the same holding in Crawford v. Arends (No. 37,998, 351 Mo. 1100, 176 S.W.2d 1) with respect to the expression "on or about." But that fact alone does not determine where appellate jurisdiction lies. The net amount in the trust estate must exceed $ 7500. ^[2]

The petition speaks as of the date of its filing, February 10, 1941. This was about five years and two months after the date of the trust instrument, November 30, 1935, and about two years ten months after Mrs. Langston's death on April 8, 1938. It does not disclose what indebtedness was then due from the trust, as for fees, commissions and otherwise; but it does allege the trustees now hold money and securities of the value (not face value) of about $ 95,000. In view of the fact that this is a trust estate and not the probated estate of a decedent who might have left debts, we are of the opinion that the Court of Appeals is right, and that appellate jurisdiction is in this court. Neither do we think our former decision on the same question is res judicata. Since this court alone has jurisdiction, it is our duty to exercise it. State ex rel. Brown v. Hughes, 345 Mo. 958, 137 S.W.2d 544.

Going to the merits of the case. The petition alleges, as stated that the execution of the trust instrument by Mrs. Langston was procured by fraud, deceit and undue influence practiced upon her by her confidential business advisors, a daughter-in-law, life...