St. Louis Fire & Marine Ins. Co. v. Wagoner

• Decision Date: 04 October 1938
• Docket Number: No. 24720.,24720.
• Citation: 119 S.W.2d 1007
• Court: Missouri Court of Appeals
• Parties: ST. LOUIS FIRE & MARINE INS. CO. v. WAGONER.

119 S.W.2d 1007

ST. LOUIS FIRE & MARINE INS. CO. v. WAGONER.

No. 24720.

St. Louis Court of Appeals. Missouri.

October 4, 1938.

Appeal from St. Louis Circuit Court; Robert J. Kirkwood, Judge.

"Not to be published in State Reports."

Suit in equity by St. Louis Fire & Marine Insurance Company against S. Blewett Wagoner, administrator of the goods not administrated of the estate of Harry E. Wagoner, deceased, to have judgment in probate court for plaintiff against the estate set aside. From a judgment for defendant, plaintiff appeals.

Reversed, and cause remanded with instructions.

Dubail, Judge & Winter, of St. Louis, for appellant.

No brief for respondent.

BENNICK, Commissioner.

This is a suit in equity which has for its purpose the vacating and setting aside of certain orders or judgments of the Probate Court of the City of St. Louis purporting to allow some six demands in plaintiff's favor against the estate of Harry E. Wagoner, deceased.

The deceased, an insurance broker, was an agent for plaintiff, St. Louis Fire & Marine Insurance Company, and at the time of his death on January 19, 1932, had in his possession certain premium payments aggregating $4,241.21 which he had collected upon insurance policies placed by him to plaintiff's account, but for which he had not as yet been called upon to remit to plaintiff under the terms of his agency contract.

The deceased had in his employ a Miss Hart, who continued in his office after his death, and collaborated with his administratrix in the attempted settlement of his accounts with the various companies he had represented.

Shortly following his death, Miss Hart prepared demands upon all the separate items due from the deceased to such insurance companies; had the administratrix waive service of notice of the same; and then had her file the demands in the probate court, by which the demands in plaintiff's favor were allowed in full on April 23, 1932, and ordered placed in the fifth class. Whether any officer of plaintiff company had known of the manner in which Miss Hart was undertaking to handle the accounts was a point of some dispute in the evidence. Plaintiff's evidence was to the positive effect that it had never requested Miss Hart to have its account allowed in the form of demands against the estate of the deceased and had known nothing of the filing of the demands until long after the time of their allowance, while Miss Hart testified that plaintiff had asked her to handle its account just as she did the accounts of the other companies and had communicated with her on several occasions regarding the allowance of the claims. However the evidence did at least show without dispute that no one had appeared for plaintiff in the probate court in connection with the presentation and allowance of the demands purportedly filed in its behalf, and it is not even contended that any affidavit was filed by plaintiff or oath made in open court in verification of the claims as is required by statute, Sec. 193, R.S.Mo.1929, Mo.St. Ann., § 193, p. 127 as a prerequisite to the allowance of a demand against an estate.

But whatever may have been the actual fact regarding plaintiff's knowledge of the course which was being followed by Miss Hart in the attempted settlement of the accounts owed by the deceased, the record discloses that it in any event chose to disregard the probate court's allowance of the several items of its own account as ordinary creditors' demands against the estate, and instead, on May 21, 1932, instituted a suit in the Circuit Court of the City of St. Louis against the administratrix of the estate and the Mississippi Valley Trust Company as joint defendants, the object and purpose of which suit was to have a trust in plaintiff's favor declared and impressed upon certain funds on deposit in the bank to the credit of the deceased though allegedly belonging to plaintiff.

At some time after the filing of plaintiff's petition, S. Blewett Wagoner, upon his appointment as administrator de bonis non of the estate of the deceased, was substituted as a party defendant to the suit, and on May 22, 1936, four years after the institution of the suit, filed his separate amended answer in which the fact of the...