Security-Mutual Bank & Trust Co. v. Buder, SECURITY-MUTUAL

• Decision Date: 12 December 1960
• Docket Number: No. 2,No. 48075,SECURITY-MUTUAL,48075,2
• Citation: 341 S.W.2d 782
• Parties: BANK & TRUST CO., Plaintiff-Respondent, v. G. A. BUDER, Jr., Executor of the Estate of G. A. Buder, Deceased, Defendant-Appellant. Oscar E. Buder, Executor d.b.n. of the Estate of Sophie Franz, Deceased, Defendant-Respondent
• Court: Missouri Supreme Court

Page 782

341 S.W.2d 782

SECURITY-MUTUAL BANK & TRUST CO., Plaintiff-Respondent, v. G. A. BUDER, Jr., Executor of the Estate of G. A. Buder Deceased, Defendant-Appellant Oscar E. Buder, Executor d.b.n. of the Estate of Sophie Franz, Deceased, Defendant-Respondent.

No. 48075.

Supreme Court of Missouri, Division No. 2.

Dec. 12, 1960.

Motion for Modification of Opinion Denied Jan. 9, 1961.

Motion for Rehearing or for Transfer to Court en Banc Denied

Jan. 9, 1961.

Cobbs, Armstrong, Teasdale & Roos, by Bourne Bean, St. Louis, for plaintiff-respondent.

James J. Milligan, St. Louis, for defendant-respondent.

G. A. Buder, Jr., St. Louis, pro se.

BARRETT, Commissioner.

Instead of immediately indicating how and why this case came to be in this court and before plainly stating the questions involved, it appears to be more appropriate to an understanding of the appeal to first briefly set forth the facts and circumstances in which the case and its issues arose. Incident to the Buder litigation and under an order of the probate court, the Security-Mutual Bank & Trust Company in July 1943 became the 'custodian' or 'depository' of the 'assets' of the 'Estate of Sophie Franz.' G. A. Buder, Sr., was then the executor of Sophie's estate and the deposited assets were then of the value of $1,614,067.80. By May 1959 G. A. Buder, Sr., was dead and G. A. Buder, Jr., had become the executor of his estate and Oscar E. Buder had succeeded G. A. Buder, Sr., as the executor of Sophie's estate. In the meanwhile, between 1943 and 1959, the internecine Buder litigation continued as it has since 1923. Four of the more recent cases involving Sophie's estate, directly or indirectly, are Buder v. Fiske, 8 Cir., 174 F.2d 260; Buder v. Fiske, 8 Cir., 177 F.2d 907; Buder v. Fiske, 8 Cir., 191 F.2d 321, and Buder v. Walsh, Mo., 314 S.W.2d 739. By December 1953 there had been an order of distribution in Sophie's estate and G. A. Buder, Sr., had prepared and 'tendered' a final settlement and there had been an order on the depository bank to 'release said assets.' Pursuant to the order the trust department of the bank, on December 30, 1953, issued its check in the sum of $97,500.02 payable to 'G. A. Buder (Sr.) and Estate of G. A. Franz.' According to the record in this case (and see Buder v. Walsh, 314 S.W.2d, loc. cit. 743) that check was not presented for payment until almost five years later, in August or September 1958. At that time payment was refused when the check was presented by G. A. Buder, Jr., executor of his father's estate.

Again in the meanwhile, prior to the institution and trial of this particular proceeding, G. A. Buder, Sr., died in April 1954 and Oscar became the successor executor of Sophie's estate. Upon becoming executor of Sophie's estate Oscar wrote a letter asking the bank to inform him of 'the status of the business transactions had with you by G. A. Buder (Sr.) as the Executor of the Estate of Sophie Franz.' At the same time G. A. Buder, Jr., as the executor of his father's estate, wrote the bank, 'as custodian in the Estate of Sophie Franz,' and stated that 'All cash * * * belongs to the Estate of G. A. Buder (Sr.) and represents commissions earned by him during his lifetime as executor of the Sophie Franz Estate.' In that letter G. A. Buder, Jr., informed the bank that the successor executor of Sophie's estate was 'not entitled to any of the property in your custody.' In May 1956, 'so that there may be no question as to my position,' Oscar again informed the bank that the order under which it 'enjoyed' joint possession of Sophie's assets had 'no application to me.' Furthermore, he said, 'I now demand possession of all personal property of said Estate * * * and cash in the sum of $97,500.02, on which a check has been issued to the order of G. A. Buder (Sr.) and the Estate of G. A. Franz, and payment likewise stopped by you at my request.'

The principal item involved upon this appeal, either cash or a check in the sum of $97,500.02, is described and given some consideration in Buder v. Walsh, 314 S.W.2d, loc. cit. 743, 748, although Sophie's estate was not in point of fact a party to that suit. However, the record in that case, as in all the Buder cases, was most confusing, the meritorious issues were indeed elusive and consequently the opinion may be inconclusive. It is not necessary to a disposition of this appeal to detail all the relevant facts and circumstances. But one further fact should be noted before stating what this appeal involves; in May 1959 G. A. Buder, Jr., as the executor of G. A. Buder, Sr., instituted a suit for damages against the Security-Mutual Bank & Trust Company in which he prays for actual damages in the sum of $97,500.02 and punitive damages in the sum of $100,000 and that action is pending.

In this briefly noted background, on May 20, 1969, the Security-Mutual Bank & Trust Company instituted this proceeding in interpleader, joining as defendants G. A. Buder, Jr., as executor of his father's estate, Oscar E. Buder as executor of Sophie's estate and G. Joseph Neaf, administrator of the G. A. Franz estate. It is not necessary to detail the factual allegations in the bank's petition, they consist in part of the facts as they have been detailed in the introductory paragraphs. It is sufficient to say that the pleading was a conventional petition in interpleader in which the bank, in addition to the usual requests, asked that G. A. Buder, Jr., be enjoined from negotiating the $97,500.02 check and that the court determine the validity and effect of the probate court order of distribution of December 26, 1953. The defendant Oscar Buder, executor of Sophie's estate, filed an answer and counterclaim in which he prayed for a judgment against the bank in the sum of $97,500.02. G. A. Buder, Jr., filed a motion to dismiss the interpleader proceeding, and again it is not necessary to detail the allegations of his motion other than to say that upon the facts therein set forth it was his position that interpleader was not an available remedy and that the circuit court lacked jurisdiction to entertain the proceeding.

There was a hearing upon the petition for interpleader and the motion to dismiss and, substantially, the evidence was an detailed at the outset of this opinion. By consent of all the parties Neaf, administrator of the G. A. Franz estate, was dismissed as a party defendant. In its order and decree sustaining the interpleader, the trial court detailed some of the facts, the 1953 order of distribution, the issuance of the order, the bank's attempt to release the assets of Sophie's estate, G. A. Buder, Jr's., pending suit against the bank and Oscar's claim. The court ordered the bank to pay the $97,500.02 into the registry of the court, less $6,700 attorneys' fees to its counsel, and discharged the bank from all obligations with respect to the fund. G. A. Buder, Jr., was ordered to interplead his claim to the deposited fund, he was enjoined from negotiating the check and, in addition, the court enjoined him 'from instituting or prosecuting any proceeding against Security-Mutual Bank & Trust Company with respect to the money delivered over to the Registry of Court.'

G. A. Budre, Jr., has appealed from the court's order and decree and in the circumstances it is not necessary to say whether as to the interpleader alone the appeal concerns an 'amount in dispute' (...