State ex rel. Talbott v. Shain

• Decision Date: 22 December 1933
• Citation: 66 S.W.2d 826,334 Mo. 617
• Parties: State of Missouri at the Relation of Stanley L. Talbott, Joseph L. Talbott, Adria June Bartram and Jewell Ruth Talbott, Minors, by their Next Friend, Ola Talbott, Relators, v. Hopkins B. Shain, Francis H. Trimble and Ewing C. Bland, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

66 S.W.2d 826

334 Mo. 617

State of Missouri at the Relation of Stanley L. Talbott, Joseph L. Talbott, Adria June Bartram and Jewell Ruth Talbott, Minors, by their Next Friend, Ola Talbott, Relators, v. Hopkins B. Shain, Francis H. Trimble and Ewing C. Bland, Judges of the Kansas City Court of Appeals

Supreme Court of Missouri

December 22, 1933

Record quashed.

Walter E. Walsh and Hume & Raymond for relators.

(1) Respondent judges erred in holding that although the trust property was admittedly returned to the deceased, there was no presumption it remained in his hands and passed to his executors, in the absence of evidence it did not remain in his hands and pass to his executors. Orr v. St. Louis Trust Co., 291 Mo. 383, 236 S.W. 649. (2) Respondent judges erred in holding the evidence insufficient as to the apportionment and qualification of defendant executors in the face of an admission to the contrary in their answer and in the absence of a specific denial. In so holding respondents brought said opinion into direct and sharp conflict with the latest controlling decisions of this court. State ex rel Boatmen's Bank v. Webster Groves Sewer District, 37 S.W.2d 908; Baxter v. St. Louis Transit Co., 95 S.W 856, 198 Mo. 8; Greer v. Ry. Co., 173 Mo.App. 276, 158 S.W 745.

Hubert Fuller, John E. Powell, Rex H. Moore and Platt Hubbell for respondents.

(1) With reference to all matters of fact, the Supreme Court will not look farther than the opinion of the Kansas City Court of Appeals. The facts as stated by the Kansas City Court of Appeals will be taken and accepted as the facts of the case for the purposes of certiorari by the Supreme Court. The Supreme Court will not look into the record except to read the facts found by the Kansas City Court of Appeals. (2) Whether the Kansas City Court of Appeals decided one or more propositions of law right or wrong, will not be considered by the Supreme Court on certiorari. On certiorari, the Supreme Court will consider only the subject of conflict. "As long as said court promulgated no rule of law which could be said to conflict with a former ruling of this court on the same or similar facts, it had the inherent right to determine the issues involved, whether its rulings be right or wrong." State ex rel. v. Allen, 256 S.W. 1052. "It follows that our writ was improvidently issued and should be quashed. It is so ordered." State ex rel v. Haid, 22 S.W.2d 1048; State ex rel. v. Smith, 43 S.W.2d 1057; State ex rel. v. Haid, 37 S.W.2d 438; State ex rel. v. Haid, 61 S.W.2d 955; 15 Mo. St. Ann., p. 502.

OPINION

Atwood, J.

Relators were plaintiffs in a suit in the circuit court against Mercer County, Missouri; Claude Stanley, Virgie Boxley and Marie Ogle, as executors of Joseph W. Stanley, deceased; Charles Brummett, Jesse T. Butcher and W. B. Hoover, as individuals; and Charles Brummett, Lew W. Taff and W. B. Hoover, as judges of the County Court of Mercer County. Plaintiffs prayed that an instrument of writing signed by Joseph W. Stanley be decreed as creating a valid, voluntary, executed, irrevocable trust; that the trust be impressed upon funds alleged to have come into the hands of said executors; that a trustee be appointed; that an accounting be had for alleged trust funds at the hands of all parties defendant; and that said parties turn over all of the said funds in their hands to the trustee.

The trial court decreed a trust as prayed, ordered that certain property and amounts be delivered and paid over to the circuit clerk of said county, appointed Ola Talbott trustee of said trust estate to administer the same, and ordered said circuit clerk to deliver said property to said trustee upon the filing by her of bond in a specified amount approved by the court. Defendants Claude Stanley, Virgie Boxley and Marie Ogle, executors aforesaid, appealed from this judgment to the Kansas City Court of Appeals where the judgment was reversed and the cause remanded. [Talbott v. Stanley et al., 59 S.W.2d 70.] Relators thereupon sought and obtained our writ of certiorari and now seek to quash the record of respondents on the ground that their decision is in conflict with certain previous controlling decisions of the Supreme Court.

The above facts appear from respondents' written opinion handed down in said cause. It further appears from the opinion that the instrument of writing in question was entitled "Deed to Trustee" and purported to transfer from Joseph W. Stanley, as party of the first part, to Mercer County, Missouri, as party of the second part, for the use and benefit of first party's grandnephews and grandnieces, Stanley W. Talbott, Joseph Lynial Talbott, Adria June Talbott and Jewell Ruth Talbott, as parties of the third part, certain personal property amounting to the sum of $ 1,600, and consisting of a $ 1,000 share of certain stock (worth about $ 600), a balance due of $ 500 on a certain promissory note, and $ 500 in cash; that said instrument found lodgment with either the treasurer or county clerk of said county; that the county judges of said county received the property described in said instrument and administered the same under the provisions thereof for more than three years; that thereafter said judges returned all of said property, together with its income, to the said Joseph W. Stanley on his demand therefor, in connection with which demand he stated that he had revoked the trust; and that no funds of the estate were at the time of the trial lodged in the hands of said county officials.

Counsel for relators contend that respondents having ruled that the property in question was trust property, and having found that the members of the county court returned it all to Joseph W. Stanley together with all of its income, their refusal to indulge the presumption that such property retained its trust character in his hands until his death and swelled the estate passing to his legal representative by that amount engendered conflict with our decision in Orr et al. v. St. Louis Union Trust Co. et al., 291 Mo. 383, 405, 236 S.W. 642, wherein we said: "In the absence of some showing, the presumption will be indulged that those funds retained their trust character in testator's hands and remained in his hands until his death and that his trustee received his estate swelled by the amount of such trust funds. The trust company, as testator's trustee, is therefore chargeable with accountability for such trust fund and the earnings therefrom, to be satisfied out of the estate in its hands."

The reason assigned by respondents in their opinion for such refusal is that there was no evidence or admission, unless such "can be concluded from the first paragraph of appellants' answer," that appellants were designated as the executors of Joseph W. Stanley, deceased, or that they have accepted any such appointment, and that, "to reach the conclusions reached by the trial court, this court would have to violate the rule that presumptions must not be based upon presumption." Nevertheless, respondents also say in their opinion: "From the pleadings, the remarks of counsel and from the findings of fact by the court, as set out in the record, this court is left to presume that Joseph W. Stanley died testate in May, 1931, and that the appellants herein are the fully designated, qualified and acting executors."

Since respondents have thus referred to the answer of executor defendants in their opinion and made it in part the basis of a ruling we may consider the answer as if fully set forth in the opinion. Such has been the majority view of the Supreme Court in banc ever since its decision in State ex rel Kansas City v. Ellison et al., 281 Mo. 667, 677, 220 S.W. 498. [See, State ex rel. Continental Ins. Co. v. Reynolds et al., 290 Mo. 362, 235 S.W. 88; State ex rel. Natl. Council of Knights and Ladies of Security v. Trimble et al., 292 Mo. 371, 239 S.W. 467; State ex rel. Raleigh Inv. Co. v. Allen et al., 294...