State Bank of Willow Springs v. Lillibridge

• Decision Date: 12 May 1924
• Docket Number: Mo. 3437.
• Citation: 262 S.W. 433
• Parties: STATE BANK OF WILLOW SMOS v. LILLBRIDGE et al.
• Court: Missouri Court of Appeals

262 S.W. 433

STATE BANK OF WILLOW SMOS v. LILLBRIDGE et al.

Mo. 3437.

Springfield Court of Appeals. Missouri.

May 12, 1924.

Rehearing Denied June 7, 1924.

Appeal from Circuit Court, Howell. County; E. 7. Dorris, Judge.

Suit by the State Bank of Willow Springs against Mrs. R. M. Lillibridge and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded, and. cause cer.. tified to Supreme Court.

M. E. Morrow, of West Plains, for appellants.

Green, Green & Green, of West Plains, for respondent.

BRADLEY, J.

This cause, in the nature of a creditor's bill, was commenced by plaintiff bank and R. F. Holloway, administrator of the estate of C. C. Clinger, deceased, and against Mrs. R. M. Lillibridge and her husband, and Ed. Clingan, Lymac. Clingan, and Mrs. Elizabeth Calhoun. Defendants, except R. N. Lillibridge, are the children of C. C. Clingan, deceased. The result of the trial was a judgment in favor of plaintiff bank, and defendants appealed.

Before the trial the administrator withdrew as a party, and the cause was prosecuted by the bank, and when we use the term "plaintiff" herein we have reference to plaintiff bank. C. C. Clingan, deceased, resided at Willow Springs, in Howell county, and prior to his death was engaged in buying anci selling stock. Prior to August 16, 1920, he owned ten acres of land with the buildings thereon near the city of Willow Springs. On August 16, 1920, he conveyed this land to his daughter, Mrs. R. M. Lillibridge, and her husband, for a consideration of $3,250. The grantees paid $1,000 down and gave their note for $2,250. The note was reduced by payments to $1,400. Deceased made his home with the Lillibridges, and for about two years prior to his death, which occurred Jan". uary 17, 1922, he, because of physical infirmities, required considerable personal attention, and his daughter, Mrs. Lillibridge, gave him faithful and efficient service. A short time before his death deceased marked "Paid" the note upon which a balance of $1,400 was due, and delivered said note to Mrs. Lillibridge; the consideration therefor being the services she and her husband had already rendered in caring for him, and the further agreement that they were to take care of and support him the remainder of his life. After the delivery of the note deceased remained at his daughter's, and she and her husband continued to care for and support him until his death. At the time deceased marked the note "Paid" and delivered it to his daughter he owed plaintiff bank $2,411, evidenced by three notes which were then overdue.

February 21, 1922, R. F. Holloway was appointed administrator of the estate of the deceased, and commenced proceedings under section 62 et seq., R. S. 1919, to discover assets, and pursuant thereto Mrs. Lillibridge and her husband were brought into court, interrogatories were filed and answered, and the disposition of the $1,400 balance on the note was fully gone into. On the one hand, the administrator contended that whatever was due on the note when turned over to Mrs. Lillibridge was an asset of the estate and should be paid by the Lillibridges to the estate, and that the Lillibridges were therefore withholding assets from the estate. On the other hand, the Lillibridges contended that the note was fully paid off and discharged, and that therefore they were not guilty of withholding assets. The issues were in the probate court before a jury, and a verdict for the Lillibridges was returned. On this verdict judgment was rendered adjudging defendants Lillibridge not guilty of withholding assets, and also adjudging the note to be fully paid off and discharged.

The probate judgment was rendered June 2, 1922, and there was no appeal, but on June 6th thereafter plaintiff, having therefore had its demand allowed in the probate court, filed the instant cause in the circuit court. Eliminating preliminary allegations, the petition is as follows:

"And plaintiffs further say that plaintiff administrator of said estate has been unable to find the note executed as aforesaid to C. C. Clingan, deceased, for the purchase price of said land, and upon an investigation finds that Mrs. R. M. Lillibridge, defendant, claims that deceased before his death gave her said note and that the same has been lost or destroyed. And plaintiffs charge, allege, and aver that said deceased, C. 0. Clingan, was not indebted at the time of his death to Mrs. R. M. Lillibridge, and that she obtained possession of the note either surreptitiously or if it was placed in her hands by deceased it was for the fraudulent purpose of both deceased and defendant. Mrs. R. M. Lillibridge, to defeat the payment of said notes of plaintiff State Bank of Willow Springs, as herein set out, and the claims of other creditors, if any; by reason of the loss or destruction of said note plaintiffs are now unable to give a more definite description of same.

"Plaintiffs charge that defendant Mrs. R. M. Lillibridge obtained possession of said note either surreptitiously or fraudulently as hereinbefore set out, and that her claim thereto is wholly false and fraudulent and without consideration; that the balance due on said note is a part of the assets of the estate of the deceased and a lien on the land herein described as a part of the purchase price of said land, and inures to the benefit of creditors of deceased, and is liable for the payment of the debts owed by deceased at the time of his death. Plaintiffs further state that defendants Mrs. R. M. Lillibridge and R. M. Lillibridge are liable to sell, transfer, or convey said land to some innocent purchaser, and the lien thereon thereby will be lost and plaintiff State Bank of Willow Springs and other creditors will be defeated of collecting their just demands against said estate; that the note aforesaid of It. M. Lillibridge and Mrs. R. M. Lillibridge, given for the purchase price of the land aforesaid, is the sole and only asset of said estate, and there are no other assets of the estate with which to pay the creditors plaintiff or any other creditors.

"Wherefore the plaintiffs pray the court to reinstate and restore said note of Mrs. R. M. Lillibridge and R. M. Lillibridge executed by them as aforesaid to deceased C. C. Clingan, and to decree that said note was given for the purchase price of said land herein described, and whatever is unpaid thereon is a lien on said described land, and for such other orders and decrees as to the court may seem just and proper."

Defendants Mrs. Lillibridge and her huetried band pleaded payment, res adjudicate, and lack of jurisdiction in the circuit court. The other defendants filed disclaimers. Plaintiff by reply put in issue the new matter pleaded. On these pleadings and the facts as stated, the court, sitting as a court of equity, allowed Mrs. Lillibridge $600 out of the $1,400 balance on the note for caring for deceased up to the time the note was delivered to her, rendered judgment in favor of plaintiff and against all the defendants for $800, and decreed such judgment to be a lien for the purchase price upon the land purchased by the Lillibridges from the deceased.

There are several questions presented, but it is not necessary to consider at length but one. Did the circuit court have original jurisdiction of this cause?

The proceeding in the probate court was solely between the administrator, who stood in the shoes of the deceased, and the makers of the note. The controversy in the case at bar is between a judgment creditor of the deceased and the makers of the note, and the issues between the parties and the ground of recovery are entirely different. The court to which jurisdiction attaches in this case is to be determined by a determination of the nature of this proceeding. If it is to be regarded as, in effect, a proceeding to discover assets of the estate, then it is clear that jurisdiction is...