Riggs v. Moise

• Decision Date: 07 March 1939
• Docket Number: 35722
• Parties: Timberline Wales Riggs et al., Appellants, v. Daisy C. Moise et al
• Court: Missouri Supreme Court

128 S.W.2d 632

344 Mo. 177

Timberline Wales Riggs et al., Appellants, v. Daisy C. Moise et al

No. 35722

Supreme Court of Missouri

March 7, 1939

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Reversed and remanded (with directions).

Scarritt Jones & North for appellants.

(1) The writ of prohibition is the proper remedy to prevent a circuit court from improperly asserting or exercising jurisdiction over a trust estate. State ex rel. v. Muench, 217 Mo. 124. (2) As Lionel Moise was appointed by the will, as trustee, his appointment as such by the court was a nullity. The petition in case No. 132950, entitled, "Lionel Moise -- Ex parte," and also the decree entered therein purporting to appoint Lionel Moise as trustee, show, on their face, that Lionel Moise had not renounced or refused to accept the office of trustee to which he was appointed by the will of C. W. Riggs, deceased. The prayer of the petition is: "Said Lionel Moise ask this court to appoint him trustee as provided by said will." Therefore, the office of trustee, to which Lionel Moise was appointed by the will, was not vacant. Williams v. Hund, 302 Mo. 451; Brandon v. Carter, 119 Mo. 572. In 1 Perry on Trusts, section 277, such is stated as the generally established law, thus: "But an appointment (by a court) where there is no vacancy, the former trustee not having relinquished the trust nor been deprived of it for abuse or mismanagement, is a nullity." The same ruling has been made in all jurisdictions, so far as we can find, where the question has arisen. Some of the cases ruling the proposition are: Mullanny v. Nangle, 212 Ill. 247, 72 N.E. 385; LaForge v. Binns, 125 Ill.App. 527; Gibney v. Allen, 156 Mich. 301, 120 N.W. 811; Everett v. Monk, 277 Mass. 65, 177 N.E. 797; In re Goulden, 170 N.Y.S. 154; Augusta v. Walton, 77 Ga. 525.

Samuel A. Dew and Levi E. Cisel for respondents.

(1) Relator's motion for judgment on the pleadings admits all facts in respondent's return. State ex rel. Ellis v. Elkin, 130 Mo. 90, 30 S.W. 333; Wand v. Ryan, 166 Mo. 646, 65 S.W. 1025; State ex rel. Warde v. McQuillin, 262 Mo. 256, 171 S.W. 72; State ex rel. Brncic v. Huck, 296 Mo. 374, 246 S.W. 303; State ex rel. v. Shields, 237 Mo. 329, 141 S.W. 585; 50 C. J. 705. (2) The jurisdiction of Division 3 was properly invoked and properly exercised in the proceedings instituted by Lionel Moise in 1919. (a) Circuit court has inherent jurisdiction of the subject matter. State ex rel. Kennedy v. Johnson, 229 Mo.App. 16, 68 S.W.2d 858; 21 C. J. 129, sec. 104. (b) The facts in the Moise proceedings authorize general jurisdiction over the trust estate and trustee. (c) The prayer of the Lionel Moise petition, as well as the facts disclosed thereby, authorized the court's supervision over the trust estate, its administration and trustee, independent of statute. 26 R. C. L., p. 1277; 21 C. J. 129. (d) Section 3147, Revised Statutes 1929, also authorized jurisdiction, Lionel Moise succeeding to the trust company named as cotrustee in the will in addition to his own appointment. Cell v. Robinson, 79 S.W.2d 489; Laumeier v. Laumeier, 308 Mo. 201, 271 S.W. 481; Salkey v. Salkey, 80 S.W.2d 735; Thornton v. Thornton, 221 Mo.App. 1199, 2 S.W.2d 821; Angel v. Angel, 220 Mo.App. 360, 285 S.W. 1035; Meredith v. Krauthoff, 191 Mo.App. 149, 177 S.W. 1112. (e) Ex parte proceedings by one cotrustee were proper. In re Parker's Estate, 228 Mo.App. 400, 67 S.W.2d 114; Roschild v. Goldenberg, 68 N.Y.S. 955; Weiner v. Weiner, 245 S.W. 474. (f) Circuit court had authority to decrease number of trustees. Safe Deposit & Trust Co. of Baltimore v. Ellis, 136 Md. 334; 3 Bogert on Trustees, p. 1695, sec. 532; 65 C. J. 604, sec. 408. (3) Jurisdiction over the estate, the trustee thereof, and over the administration of said trust having attached, the same was continuous and extended to the resignation and appointment of trustee and successor. Cell v. Robinson, 79 S.W.2d 489. (a) No notice to beneficiaries was essential to the validity of court's appointment of successor trustee. In re Parker's Estate, 228 Mo.App. 400, 67 S.W.2d 114. (b) Section 3147 directly applied to appointment of Daisy C. Moise, successor trustee. Cell v. Robinson, 79 S.W.2d 489. (c) Failure of Daisy C. Moise to give bond does not affect validity of her appointment. Williams v. Gideon, 54 Tenn. 617; Morris v. Winderlin, 92 Kan. 935, 142 P. 944; Reeder v. Reeder, 184 Iowa 1 168 N.W. 122; Leedon v. Lombaert, 80 Pa. 381; Young v. Cardwell, 6 Lea, 168, 74 Tenn. 168; Yore v. Crow, 90 Mo.App. 562; Bogert on Trustees, p. 463. (4) Where one of two courts of co-ordinate jurisdiction takes jurisdiction of a particular cause it does so to the complete exclusion of all other courts. State ex rel. Sullivan v. Reynolds, 209 Mo. 161, 107 S.W. 487; State ex rel. Bartlett v. Littrell, 325 Mo. 35, 26 S.W.2d 768; Julien v. Commercial Assur. Co., 220 Mo.App. 115, 279 S.W. 744; Beck v. Hall, 211 S.W. 130; State ex rel. Townsend v. Mueller, 330 Mo. 641, 51 S.W.2d 8; State ex rel. Mo. Pac. Ry. Co. v. Williams, 221 Mo. 268, 120 S.W. 740; State ex rel. Aetna Ins. Co. v. Knehans, 31 S.W.2d 226; Seibert v. Harden, 319 Mo. 1105, 8 S.W.2d 905; State ex rel. Ingenbohs v. Landis, 173 Mo.App. 198, 158 S.W. 883; Ex parte Ingenbohs, 173 Mo.App. 267, 158 S.W. 878; State ex rel. Williams v. Netherton, 26 Mo.App. 414; Peer v. Ashauer, 102 S.W.2d 764; Freeman on Judgments, sec. 335. (a) Divisions 3, 4 and 1 of the Circuit Court of Jackson County, Missouri, are distinct and separate courts as to priority of jurisdiction. State ex rel. McCafferty v. Eggers, 152 Mo. 485, 54 S.W. 498; Secs. 1956, 1957, 1958, R. S. 1929.

Douglas, J. All concur, except Clark, J., not sitting.

OPINION

DOUGLAS

The main question in this case is whether the jurisdiction which Division No. 3 of the Circuit Court of Jackson County is asserting over the administration of the trust estate of Chauncey Wales Riggs, deceased, had been properly invoked so as to exclude Division No. 4, another division of said court, having concurrent jurisdiction, from later assuming jurisdiction over a controversy about the administration of said estate.

Chauncey Wales Riggs, the testator, in his will described himself as a resident of the State of Arkansas, and appointed as his sole executor and trustee the Mercantile Trust Company of Little Rock. He provided that in the event of the dissolution of such trust company, or should it fail to act, then the Supreme Court of Arkansas should appoint as its successor a trust company of Memphis, Tennessee, or, if a reliable one there would not act, then one of Arkansas. Later, by a codicil, the testator, still describing himself as a resident of Arkansas, but at that time being in Kansas City, appointed Lionel Moise of Kansas City as co-executor and co-trustee with the Mercantile Trust Company. The will and codicils created an active trust for the benefit of the testator's children, some of whom were minors. The testator died November 19, 1917. The will and codicils were probated both in Cross County, Arkansas, in January, 1918, and in Jackson County, Missouri, in February, 1918. The Mercantile Trust Company was appointed executor in Arkansas and Lionel Moise in Missouri. Each executor qualified to serve. When the administration in Jackson County was about to be closed, Lionel Moise filed in the Circuit Court in Jackson County to the January, 1919 Term, an ex parte petition, which was given Circuit Court No. 132,950 and assigned to Division No. 3. In the petition the appointments of the executors in Arkansas and Missouri were set out. It was stated that the administration in Arkansas was closed and the executor there discharged because there was no personal property of any value belonging to the estate in Arkansas, and that all the property was in the possession of Lionel Moise, executor in Missouri. The petition asked the court to appoint Lionel Moise, the petitioner, trustee, as he was named trustee in the will, so that he could take charge of the trust property upon the final settlement and distribution of the estate by the Probate Court of Jackson County, Missouri. A copy of the will was attached to the petition.

The court (Division No. 3) entered its decree in which it stated that as the will appointed Lionel Moise as trustee, therefore it (the court) did appoint Moise as trustee. Moise filed an inventory of the trust estate in Division No. 3, and thereafter filed semi-annual reports. In April, 1929, Moise submitted his resignation as trustee, and in November, 1929 Division No. 3 entered an order accepting his resignation and appointing his wife, Daisy C. Moise, as trustee. In 1933 Lionel Moise died and Daisy C. Moise became and still is the executrix of his estate. Now the beneficiaries enter the picture. In February, 1936, Timberline Wales Riggs of Duluth, Minnesota, a son of Chauncey Wales Riggs and a beneficiary under his father's will, together with all the other beneficiaries under the will, claiming to be entitled to the trust estate, filed a suit in the Circuit Court of Jackson County against Daisy C. Moise, individually, and as executrix of the estate of Lionel Moise. This suit was assigned to Division No. 4 for hearing. In the petition in said suit, plaintiffs alleged that the trusteeship was vacant because of the death of Lionel Moise, the trustee named in the will; that all the proceedings in Division No. 3 having to do with the estate were wholly void and of no effect, including the appointment of Lionel Moise as trustee, the assumption of jurisdiction over the administration of the trust estate, the acceptance of Lionel Moise's resignation, and the appointment of Daisy C. Moise as his successor; and that Daisy C. Moise has been acting as trustee de son tort. T...