Peck v. Fillingham's Estate

• Decision Date: 02 April 1918
• Docket Number: No. 14919.,14919.
• Citation: 199 Mo. App. 277,202 S.W. 465
• Parties: PECK et al. v. FILLINGHAM'S ESTATE.
• Court: Missouri Court of Appeals

202 S.W. 465

199 Mo. App. 277

PECK et al. v. FILLINGHAM'S ESTATE.

No. 14919.

St. Louis Court of Appeals. Missouri.

April 2, 1918.

Rehearing Denied April 17, 1918.

Appeal from St. Louis Circuit Court; G. A. Wurdeman, Judge.

Claim by Nellie F. Peck and others against the estate of Elizabeth Fillingham, deceased, of which Arthur Fillingham is executor. From judgment for defendant, plaintiffs appeal. Affirmed.

E. P. McCarthy and T. D. Cannon, both of St. Louis, for appellants. Rassieur, Kammerer & Rassieur, of St. Louis, for respondent.

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, to wit, 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 $2,000, bearing interest at 8 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 $1,800 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 nonpayment of said principal and interest the then holder of said note advertized said property for sale at foreclosure sale under said deed of trust, and on or about the 3d 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 $1,800 principal, $203.63 interest, and $41.50 costs of sale, or a total of $2.045.13, 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 $2,345.13.

"Claimants further state that said Elizabeth Fillingham assumed payment of two certain principal notes for a total of $1,400 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 $1,400 principal, with interest; that no part of said indebtedness was paid by the estate of said Elizabeth Fillingham; that because of said nonpayment of said principal and interest the then holder of said notes advertized said property for sale under said deed of trust, and on the 14th day of January, 1911, said property was sold at foreclosure sale under said deed of trust for the purpose of satisfying said indebtedness of Elizabeth Fillingham, then amounting to the sum of $1,491.06 interest, and $53.44 costs, or a total of $1,544.50 was paid.

"Claimants state that by reason of said payment of said indebtedness of Elizabeth Fillingham out of the proceeds of sale of their property said estate of Elizabeth Fillingham is now indebted to them in said sum of $1,544.50.

"Wherefore claimants present this claim, and demand for said first-named sum of $2,045.13 and said second-named sum of...