Price v. Boyle

• Decision Date: 23 March 1921
• Docket Number: No. 21441.,21441.
• Citation: 229 S.W. 206,287 Mo. 257
• Parties: PRICE v. BOYLE.
• Court: Missouri Supreme Court

229 S.W. 206

287 Mo. 257

PRICE v. BOYLE.

No. 21441.

Supreme Court of Missouri, Division No. 2.

March 23, 1921.

Motion for, Rehearing Stricken from Files April 7, 1921.

Appeal from St. Louis Circuit Court; A. B. Frey, Judge.

Suit by Joseph B. Price, administrator of the estate of Emmeline G. Boyle, deceased, against Sidney E. Boyle, executrix of the estate of Wilbur F. Boyle, deceased, resulting in judgment for defendant on both counts of the bill; plaintiff's motion for new trial being overruled as to the first count, but sustained as to the second count. From order sustaining the motion as to the second count. defendant appeals. Judgment reversed and cause remanded, with directions to set aside order granting new trial on the second count and to reinstate judgment as originally entered.

Boyle & Priest, of St. Louis, for appellant.

Joseph H. Zumbalen and W. B. & Ford W. Thompson, all of St. Louis, for respondent.

WHITE, C.

This is a suit in equity and as originally filed the bill was in two counts. In the first count the plaintiff sought to set aside a certain deed executed in May, 1875, wherein the plaintiff's intestate conveyed certain property to the defendant's testator; the second count demanded an accounting of the trusteeship of Wilbur F. Boyle, deceased, concerning certain property which it is alleged he held in trust for plaintiff intestate.

By consent of the parties William B. Homer was appointed referee to try the issues involved. It was stipulated that he should take the evidence but make no finding of facts. Accordingly the referee took the evidence, reported the same, and upon the consideration of that evidence the trial court rendered judgment for the defendant on both counts, Judge F. L. English being judge. Subsequently a motion for new trial was filed, and at that time Judge A. B. Frey had succeeded Judge English. Judge Frey overruled the motion as to the first count and sustained it as to the second count. From that order sustaining the motion for new trial on the second count the defendant appealed.

Emmeline G. Boyle was the widow, and Wilbur F. Boyle the son, of Joseph Boyle, deceased. Joseph Boyle died in 1872, leaving a will in which he appointed Wilbur F. Boyle his executor. He had two other children, Leonidas H. Boyle, a son, and Virginia, a daughter. At the time of her father's death Virginia was the wife of William M. Price; previously she had been married to one McDonald, who died in 1868. The defendant, executrix, is the daughter of Wilbur F. Boyle, deceased. It is claimed by plaintiff that Emmeline G. Boyle was devised a life estate in all the property, real and personal. Wilbur F. Boyle, executor, appears to have treated the estate as if his mother had a life interest in all the property; the case was tried on that theory, so it is unnecessary to set out the will.

Emmeline G. Boyle died June 11, 1907; Wilbur F. Boyle died in March, 1911; this suit was filed on the 10th day of June, 1912, five years lacking one day from the death of Emmeline G. Boyle.

It is claimed by the plaintiff that Wilbur F. Boyle was the trustee of an express trust, having charge of all the interest and estate of his mother in Joseph Boyle's property. This is disputed by defendant, but for the purpose of this case it may be conceded that he was such trustee, and acknowledged himself as such in writing by executing in 1877 what is claimed to be a declaration of trust. The case may be treated, then, as one in which Emmeline G. Boyle, the plaintiff's intestate, had a life interest in all the property, real and personal, left by Joseph Boyle, deceased, at his death in 1872. Wilbur F. Boyle took charge of and managed the property as trustee, and was accountable to the cestui que trust for the income arising from the property during the life of his mother; the trust terminating on her death in 1907.

The inventory of Joseph Boyle's estate filed by the executor showed personal property, consisting mainly of notes, amounting to $6,103.02, and seven pieces of real estate. This inventory of the estate was filed September 18, 1872. The executor thereafter filed four annual settlements in the probate court of St. Louis, the first in September, 1873; the second in July, 1874; the third in June, 1875; the fourth in June, 1876; and a final settlement sworn to December 31, 1877, was filed January 15, 1878, about 18 months after the fourth annual settlement. These annual settlements show the amounts of rents and interest received by the executor, and the amounts paid to the widow during the period of administration up to the fourth annual settlement. At the first annual settlement the executor took credit for $2,220.60 paid to the widow Emmeline G. Boyle; on the second annual settlement he took credit for $1,205.40; in the third for $1,351.30; and in the fourth for $1,786.10. In the final settlement executed December 31, 1877, there is this entry: "By amount paid Mrs. E. G. Boyle, who is, under the will of deceased, entitled to the estate during life, $4,241.10." That credit, after accounting for all other receipts and disbursements, balances the estate, showing no property in the executor's hands. December 26, 1877, three days before he swore to his final settlement, he executed the following document:

"This memorandum witnesseth that whereas I have this day received from Mrs. E. G. Boyle her receipt to be filed with my final settlement of the estate of Joseph Boyle, deceased, for the sum of $4,241.10, yet as a matter of fact I have not paid this amount of money to her, and have obtained her receipt simply for the purpose of closing up the administration in the probate court. This amount, together with the other assets of the estate of Joseph Boyle, are held by me as trustee or agent with the consent of Mrs. E. G. Boyle and of my sister, Mrs. Virginia Price, and I am to pay the income from the property to Mrs. D. G. Boyle during her life, and upon her death to divide the remainder between my said sister and myself as directed by the will of Joseph Boyle, deceased. I have this day rendered to Mrs. E. G. Boyle and Mrs. Virginia Price a statement setting forth in full all of the assets of the estate, including the above amount which appears in the probate court, all of which assets are in my hands for the purposes above mentioned.

                                         "Wilbur F. Boyle
                  "St. Louis, December 26, 1877."
                

We have italicized some parts of the document which seem significant.

He had sold all the real estate except three pieces, and had on hand, not shown in the final settlement, as the proceeds of such sale, $9,706 in cash, notes representing deferred payments from the sale of real estate, $2,200, and one share of Biddle Market, stock, $25. The plaintiff adds to these amounts the $4,241.10 mentioned, making a total of $16, 172.10, and seeks to charge the estate of Wilbur F. Boyle with that amount, and interest on it from the time of final settlement in 1877 to the time suit was filed in 1912. Of the three pieces of real estate remaining in the hands of the executor, two were sold and conveyed together, June 1, 1895, for a recited consideration of $3,500. The other piece of real estate was sold in 1897, and conveyed for a recited consideration of $17,000. The plaintiff takes these two sums, $3,500 and $17,000, recited in the deeds, and charges the amount to the trustee, Wilbur F. Boyle, with interest on same from the dates of the deed until the filing of the suit.

No books or accounts were discovered satisfactorily showing the moneys received and disbursed by Wilbur F. Boyle while he was acting in the alleged capacity of trustee, but he presented to his mother from time to time statements of his accounts as trustee, some of which were introduced in evidence. The plaintiff, administrator, is the son of Virginia Price, and she would be the principal beneficiary in any proceeds resulting from this suit. Her mother lived with her for many years prior to her death, though perhaps not continuously. Mrs. Price had possession of all the papers her mother possessed relating to the estate. She testified that she destroyed most of those papers, and what were rescued from the destruction were turned over to Mr. Laurie for examination after Wilbur F. Boyle's death. She did not know what sort of papers were destroyed nor what papers she turned over to Mr. Laurie. She claimed to be extremely ignorant of business matters in general and knew nothing about the business transactions connected with the estate; she trusted everything to her brother, and never suspected that anything was wrong with the estate until after her brother's death in 1919. She admitted she was disappointed by the provisions of his will, and on account of that disappointment started some investigations which aroused her suspicions and caused her to have an administrator of her mother's estate appointed and this suit to be brought.

Among the papers rescued in the general destruction was a statement of moneys belonging to Joseph Boyle's estate received and expended by W. P. Boyle from May, 1872, to July 2, 1875; also a statement covering the period from May 12 to December 26, 1877; also one for the period from December 31, 1877, to July 1, 1879; one for the years 1880, 1881, and 1882; and one for the years 1883 to 1890, inclusive. No statements were rescued showing what was received and expended between the periods mentioned, or what was received or disbursed after 1890. What was received and disbursed during these periods is largely conjectural.

The plaintiff proceeds to charge the estate of Wilbur F. Boyle with the amounts above mentioned as in his hands at the final settlement of his father's estate, with the amounts acknowledged by him in those statements handed his mother to have been received, with the recited considerations in the two deeds mentioned, and gives him credit for no payments or expenses during all the time except those proven, and...