Prewitt v. Prewitt

• Citation: 87 S.W. 1000,188 Mo. 675
• Parties: PREWITT v. PREWITT et al.
• Decision Date: 24 May 1905
• Court: United States State Supreme Court of Missouri

87 S.W. 1000

188 Mo. 675

PREWITT v. PREWITT et al.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

TRUSTS — MISAPPROPRIATION BY TRUSTEE — REMEDIES OF BENEFICIARY — RESULTING TRUST — LIMITATIONS — NOTICE — SCOPE OF CONSTRUCTIVE NOTICE — MARRIED WOMEN — RIGHT TO SUE.

1. Where a party to whom money is intrusted for a given purpose diverts it from that purpose and secretly uses it in the purchase of land, taking title in his own name, the injured party, on discovering the fraud, may either sue at law to recover the money misused, or may sue in equity to establish a resulting trust in his favor in the land purchased.

2. Where conditions constituting constructive notice are shown to have existed, the presumption of the importation of such notice is conclusive.

3. A probate record of a will disclosing plaintiff's remainder interest after the termination of a life estate given to her mother, and further showing that the funds in which she was interested as remainderman had passed into the hands of her father, who thereby became her trustee, does not, though taken in connection with the record of a deed to her father, charge plaintiff with notice of the misappropriation by her father of the trust funds, and their use by him in the purchase of the land covered by the deed.

4. A cause of action in favor of a daughter against her father to establish a resulting trust in land purchased by the father with funds devolving on his daughter at the death of her mother does not accrue, so as to be subject to the operation of limitations, until the discovery by her of her father's fraudulent conduct, whether he was guilty of intentional wrongdoing or not.

5. In a suit to establish a resulting trust, evidence held sufficient to show that the land in controversy was purchased by the trustee with the trust funds.

6. A married woman may sue alone in equity to establish a resulting trust in her favor in land, her interest in which existed before the passage of the married woman's acts.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by Lucy Prewitt against George E. Prewitt and others. From a judgment for defendants, plaintiff appeals. Reversed.

Norton, Avery & Young and W. A. Dudley, for appellant. Martin & Woolfolk, Ball & Sparrow, and A. P. Williams, for respondents.

VALLIANT, J.

This is a suit in equity to establish a resulting trust. The case made by the plaintiff's evidence is as follows:

The plaintiff's grandfather, William Shaw, died in 1846, leaving a will, by the second clause of which he gave to his daughter, the plaintiff's mother, "Lucy Shaw, the extra sum of four hundred dollars more than her equal portion of my estate in consideration of her tender age and for the purpose of raising and educating her," and by the residuary clause he gave one-eighth of his estate to each of his children then living, and a like share per stirpes to the children of a deceased daughter, after which the will said: "All of the aforesaid legacies are to be possessed by those to whom they are made during their natural lives, and afterwards by the lawful heirs of their bodies, to their only proper use and benefit." The will was probated and the estate was administered under the jurisdiction of the county court of Pike county, which then had jurisdiction in such matters. The plaintiff's mother, Lucy Shaw, was one of the children of the testator living at the time of his death, and was entitled under the terms and limitations of the residuary clause of the will to one-eighth of the estate, in addition to the specific legacy of $400. She was, at the time of her father's death, a minor, and a guardian was therefore afterwards appointed for her of her person and estate. In 1850, while she was yet a minor, she married Dr. Prewitt. She died in 1859, leaving two children — the plaintiff, who was then about 4 years old, and a son, about 18 months or 2 years old. The son died in infancy shortly after the death of his mother. Dr. Prewitt, after his marriage, collected the $400 specific legacy above named and one-eighth of the residuum of the Shaw estate, in all $2,079.81, as his wife's share. After these collections were made, Dr. Prewitt in 1857 bought the land now in controversy for the sum of $1,880, and took the title in his own name in fee simple by warranty deed. The trial court found, and the evidence sustains the finding, that the purchase money for this land was paid by Dr. Prewitt out of the money he had collected from the Shaw estate. The plaintiff, who bears her mother's name, Lucy, was married in 1868 or 1869, while she was yet a minor, and her husband, Joseph W. Prewitt, is still living, though he is not a party to this suit. After the death of plaintiff's mother, her father, Dr. Prewitt, married again. He died in 1900, leaving the second wife, his widow, and three children by that marriage, who are the defendants in this suit.

The land in question is a farm of about 200 acres in Lincoln county. It was the home of Dr. Prewitt from the date of its purchase in 1857 until his death, except for a brief period not definitely stated. In 1868 he separated from his second wife, and he and the plaintiff moved to what the witnesses called the "Paxton House" in the town of Louisville, which was near the farm, leaving the farm in possession of the second wife. After a while the second wife moved to Vicksburg, Miss., and then Dr. Prewitt and the plaintiff returned to the farm and lived there together until after her marriage and after the birth of one of her children, when she and her husband moved away, the date of which is not given. The plaintiff's evidence also tended to show that to his intimate friends and friends of the family Dr. Prewitt always said that the land was bought with the money that came from the Shaw estate through the plaintiff's mother, and that it was entailed on the plaintiff. The evidence on the part of the defendants was to the effect that Dr. Prewitt claimed the land as his own and offered it for sale, and on one occasion had said that the money he received from the Shaw estate he invested in negroes and they were set free. This evidence, however, related to claim of ownership after the marriage of the plaintiff, and the claim was not made in the presence of the plaintiff.

This suit was begun August 8, 1901. The trial court held that Dr. Prewitt received the money from the Shaw estate impressed with an express trust created by the Shaw will; that the investing of the trust moneys in the land and taking the title to himself amounted to a conversion of the trust fund and a disavowal of the fiduciary relation he previously held with reference to that fund; that on the death of her mother the plaintiff became entitled to the trust property as absolute owner; that plaintiff was chargeable with knowledge of the provisions of the will, and therefore knew that on the death of her mother she was entitled to the trust fund, and knew that her father did not then or at any time undertake to so settle with her for the same or convey to her the real estate in which the trust fund was invested, the deed to the land being on record; that the breach of trust occurred in 1857, when the land was bought; that plaintiff's cause of action accrued in 1859, when her mother died; that she, being then a minor, had three years after coming of age in which to sue; that period expired in 1874 or 1875, and her right to sue was then...