Peck v. Estate of Fillingham

• Decision Date: 02 April 1918
• Citation: 202 S.W. 465,199 Mo.App. 277
• Parties: NELLIE F. PECK, AUSTIN PECK, Jr., and R. LESLIE PECK, Appellants, v. Estate of ELIZABETH FILLINGHAM, deceased, ARTHUR FILLINGHAM, executor, Respondent
• Court: Missouri Court of Appeals

202 S.W. 465

199 Mo.App. 277

NELLIE F. PECK, AUSTIN PECK, Jr., and R. LESLIE PECK, Appellants, v. Estate of ELIZABETH FILLINGHAM, deceased, ARTHUR FILLINGHAM, executor, Respondent

Court of Appeals of Missouri, St. Louis

April 2, 1918

Appeal from the Circuit Court of St. Louis County.--Hon. G. A Wurdeman, Judge.

AFFIRMED.

Judgment affirmed.

E. P McCarthy and T. D. Cannon for appellants.

(1) The circuit court erred in holding that the probate court was without jurisdiction to hear and decide the issues raised herein. The Constitution of this State gives the probate courts jurisdiction "over all matters pertaining to probate business;" as to matters pertaining to probate business the statute declares that the probate courts shall have jurisdiction to hear and determine all suits and other proceedings instituted against executors and administrators upon any demand against the estate of the testator or intestate. It matters not whether the demand be regarded as legal or equitable, the statute confers upon the probate court ample jurisdiction to determine the same. Constitution of Missouri, art. 6, sec. 34; Stanton v. Johnson's Estate, 177 Mo.App. 54, 57; Johnson v. Johnson, 72 Mo.App. 386, 388; State ex rel. v. Shackelford, 263 Mo. 52-63; Jarboe v. Jarboe, 227 Mo. 59, 93; Lietman's Extr. v. Lietman, 149 Mo. 112, 117; In re Estate of Elliott, 98 Mo. 379, 384; Hammons v. Renfrow, 84 Mo. 332; 340-341; French v. Stratton, 79 Mo. 560, 562-563; Johnson v Beasley, 65 Mo. 250, 256; Ensworth v. Curd, 68 Mo. 282; Pierce v. Calhoun, 59 Mo. 271; Tittertington v. Hooker, 58 Mo. 593; 1 Woerner on Adm. (2 Ed.) sec. 149, p. 361-2; Rice on Probate Law, 265. (2) The devise of the real estate by the fourth clause of Elizabeth Fillingham's will, shows by its recitals that the testator intended to give said real estate to her daughter, Mrs. Peck and her daughter's children free of incumbrance. The children at the time were mere infants and wholly without estate aside from that willed to them by testator; the daughter, Mrs. Peck, was without means except the property devised by her mother. The clear intention of the testator was that the daughter would use the rents and profits and said real estate for her support during life and after Mrs. Peck's death the property would pass to the children. Knight v. Newkirk, 92 Mo.App. 258; Darr v. Thomas, 127 Mo.App. 1; Morris v. Bassett, 132 Mass. 502; Brown v. Baron, 162 Mass. 56; Sutherland v. Harris, 86 Ills. 363. (3) The holders of the encumbrances on the real estate specifically devised to plaintiffs could have proved up their claims against the estate of Elizabeth Fillingham in the probate court, but they did not do so; they chose to foreclose the deeds of trust and sell plaintiffs properties. Plaintiffs having been thus forced to pay the said encumbrances on said real estate specifically devised, under the distressing circumstances shown in the evidence in this case, are subrogated to the rights of the holders of said encumbrances, and are entitled to have this claim allowed against the estate. Berthold v. Berthold, 46 Mo. 557; Allen v. Dermott, 80 Mo. 56; Fowler v. Fowler, 78 Mo.App. 330, 334; Foster v. Williams, 144 Mo.App. 220, 224. (4) The declaration of law asked by the plaintiffs and refused by the court should have been given at the close of the whole case. There was no conflict in the testimony; it appears beyond contradiction that the estate of Elizabeth Fillingham is solvent; it appears beyond contradiction that the encumbrances upon the real estate devised to plaintiffs specifically to the amount of $ 3589.63, was paid by compulsion by plaintiffs. It appears therefore that the plaintiffs are entitled to a direction from this court to the trial court to enter judgment for the plaintiffs upon the cause of action set forth in their petition, with interest at the rate of six per cent per annum from the date of filing the claim in the probate court. Section 2083, R. S. 1909; Warfield v. Hunt, 91 Mo.App. 541, 551; Meffert v. Dyer, 107 Mo.App. 462, 466; Rice v. Shipley, 159 Mo. 399, 409, Dickson v. Rouse, 80 Mo. 224, 228; Smith v. White, 165 Mo. 590, 596; State ex. rel. Walbridge, 153 Mo. 194, 204.

Rassieur, Kammerer & Rassieur for respondent.

(1) Under the Missouri law, the devisee takes encumbered property subject to the encumbrance, and the property itself is primarily liable for the payment of the encumbrance, and not the personal property belonging to the estate of the testator. The Missouri statute has abrogated the common law in that respect. Sections 197, 542, R. S. 1909; 2 Schouler on Wills, etc. (5 Ed.), sec. 1430. (2) The property itself being primarily liable for the payment of an encumbrance existing thereon, the property alone must be looked to for the payment thereof in the absence of personal property belonging to the estate. The encumbrance cannot be transferred from one property to another. Adams v. Adams, 183 Mo. 396; Darr v. Thomas, 127 Mo.App. 1, 8; 2 Schouler on Wills, etc. (5 Ed.), sec. 1430. (3) Probate courts possess no inherent powers, have no equitable jurisdiction, and exercise such powers only as are conferred by or implied from legislation, and can consequently not hear a claim based solely on the doctrine of subrogation. In re Elliot's Estate, 27 Mo.App. 218; Bramel v. Cole, 136 Mo. 201; Ford, Administrator v. Talmage, 36 Mo.App. 65; First Baptist Church v. Robberson, 71 Mo. 326; Butler v. Lawson, 72 Mo. 227; Reed v. Reed, 94 Mo. 590; Evie v. Ewing, 120 Mo.App. 129; State ex rel. v. Bird, 253 Mo. 579; 11 Cyc. 795. (4) Courts of equity alone have authority to construe wills (with the exception of the incidental authority possessed by probate courts to enable them to properly distribute the assets of estates), and alone have power to follow trust funds or impose conditions or limitations upon their use or disposition. First Baptist Church v. Robberson, 71 Mo. 326; Woerner's Law of Administration (2 Ed.), par. 155; 40 Cyc. 1842.

BECKER, J. Reynolds, P. J., and Allen, J., concur.

OPINION

BECKER, J.

This case originated in the probate court of St. Louis county where plaintiffs below, appellants here, filed a claim against the estate of Elizabeth Fillingham, deceased. Said probate court dismissed plaintiffs' claim on the ground that it had no jurisdiction. On appeal the circuit court of St. Louis county heard the case without the intervention of a jury, and ruled that the probate court was without jurisdiction to entertain plaintiffs' claim and accordingly entered judgment for the defendant. After an unavailing motion for new trial, plaintiffs bring this appeal.

The demand upon which this claim is based will best be understood by setting out in full the claim as originally filed. It is as follows:

"Claimant Nellie F. Peck states that she is the wife of Austin Peck and daughter of Elizabeth Fillingham; that claimants August Peck, Jr., and Leslie Peck are her sons and only children."

"Claimants state that under and by the terms of the last will of said Elizabeth Fillingham said testatrix devised to claimant Nellie F. Peck for her use during her life and at her death to her children, certain property therein described as lots numbered 12 and 15 in block A of plat of West Horton Place, in the county of St. Louis and State of Missouri;"

"That said Elizabeth Fillingham during her lifetime, towit on August 20, 1903, made and executed her promissory note of that date payable to the order of Edward H. Fisher three years after date for the principal sum of twenty hundred dollars, bearing interest at eight per cent, from maturity, which note was signed by Elizabeth Fillingham and her husband, Charles Fillingham; that at the same time said Elizabeth Fillingham and her husband executed a deed of trust by which they conveyed to Charles F. Vogel as trustee for said Edward H. Fisher said property above described as lot 12 in block A of West Horton Place, in trust to secure the payment of said principal and interest; that at the time of the death of said Elizabeth Fillingham there was due from her on said note the sum of eighteen hundred dollars principal and $ 41.25 interest represented by a note signed by her August 20, 1906, for $ 49.50; that no part of said sum was paid by said Elizabeth Fillingham or her estate; that because of said non-payment of said principal and interest the then holder of said note advertised said property for sale at foreclosure sale under said deed of trust and on or about the 3rd day of September, 1910, said property was sold at foreclosure sale under said deed of trust for the purpose of satisfying said principal and interest; that out of the proceeds of said sale said indebtedness of said Elizabeth Fillingham then amounting to the sum of $ 1800 principal $ 203.63 interest and $ 41.50 costs of sale, or a total of $ 2045.13, was paid;"

"Claimants state that by reason of said payment of said indebtedness of said Elizabeth Fillingham out of the proceeds of sale of her property said estate of Elizabeth Fillingham is now indebted to them in the sum of $ 2045.13;"

"Claimants further state that said Elizabeth Fillingham assumed payment of two certain principal notes for a total of fourteen hundred dollars dated January 31, 1900, made by Lillie E Campbell and Isaac W. Campbell and secured by deed of trust on property hereinbefore described as lot 15 of block A of West Horton Place; that neither of said notes nor any part thereof was paid by said Elizabeth Fillingham and that at the time of her death there was due from her on said note the sum of fourteen hundred dollars principal with interest; that no part of said indebtedness was paid by the estate of...