State ex rel. v. Johnson et al.

• Decision Date: 06 March 1934
• Docket Number: No. 22762.,22762.
• Citation: 68 S.W.2d 858
• Parties: THE STATE OF MISSOURI, AT THE RELATION AND TO THE USE OF HOWARD KENNEY, WILBUR M. KENNEY, OLIVE KENNEY WALL, JOSEPH KENNEY, WALTER KENNEY, LULU KENNEY, BRYAN KENNEY, PHILLIP KENNEY, AND WILLIAM A. DIEMER, ADMINISTRATOR OF THE ESTATE OF EDITH KENNEY SHIERSON, DECEASED, AND JAMES WHISTON, CURATOR OF THE ESTATE OF PAUL KENNEY AND VIRGINIA KENNEY, MINORS, RESPONDENTS, v. WILLIAM P. JOHNSON, MADISON NELSON, DEFENDANTS; CHARLES R. TATE, ADMINISTRATOR OF THE ESTATE OF CICERO B. WHITAKER, DECEASED, APPELLANT.
• Court: Missouri Court of Appeals

68 S.W.2d 858

THE STATE OF MISSOURI, AT THE RELATION AND TO THE USE OF HOWARD KENNEY, WILBUR M. KENNEY, OLIVE KENNEY WALL, JOSEPH KENNEY, WALTER KENNEY, LULU KENNEY, BRYAN KENNEY, PHILLIP KENNEY, AND WILLIAM A. DIEMER, ADMINISTRATOR OF THE ESTATE OF EDITH KENNEY SHIERSON, DECEASED, AND JAMES WHISTON, CURATOR OF THE ESTATE OF PAUL KENNEY AND VIRGINIA KENNEY, MINORS, RESPONDENTS, v. WILLIAM P. JOHNSON, MADISON NELSON, DEFENDANTS; CHARLES R. TATE, ADMINISTRATOR OF THE ESTATE OF CICERO B. WHITAKER, DECEASED, APPELLANT.

No. 22762.

St. Louis Court of Appeals. Missouri.

Opinion filed March 6, 1934.

Appeal from the Audrain County Circuit Court. — Hon. William C. Hughes, Judge.

AFFIRMED.

Chester R. Grove, Walter M. Hilbert and Lane B. Henderson for appellant.

(1) The Circuit Court of Marion County, Missouri, had no jurisdiction to appoint William P. Johnson, a resident of Marion County, Missouri, as trustee of the trust estate of Sarah Kinney under the will of John Hefflebower. Secs. 3138, 3147, R.S. 1929; Sec. 4582, R.S. 1899; Holman v. Renaud, 141 Mo. App. 399, l.c. 403, 125 S.W. 843; State ex rel. Muench, 217 Mo. 124, l.c. 137; Thieband v. Dufour, 54 Ind. 320. (2) The Circuit Court of Marion County, Missouri, had no jurisdiction to receive, accept and approve the bond tendered by William P. Johnson as trustee of the trust estate of Sarah Kinney under the will of John Hefflebower, signed by William P. Johnson as principal and Madison Nelson and Cicero B. Whitaker as sureties. Secs. 3138, 3147, R.S. 1929; Sec. 4582, R.S. 1899; Holman v. Renaud, 141 Mo. App. 399, l.c. 403, 125 S.W. 843; McManus v. Park, 287 Mo. 109, 229 S.W. 211, l.c. 214; State ex rel. v. Muench, 217 Mo. 124, l.c. 137; Thieband v. Dufour, 54 Ind. 320.

Hulse & Hulse and Mahan, Mahan & Fuller for respondents.

(1) The Circuit Court of Marion County, as a court of equity, had the inherent common-law jurisdiction of the trust estate in question and in the exercise of such jurisdiction, said court was also authorized and empowered to appoint the subsequent trustee of said trust estate and to approve the bonds of such subsequent trustees. There is no provision found in Sections 3138 and 3147, Revised Statutes of Missouri of 1929, that is repugnant to, abrogates or takes away such inherent common-law jurisdiction. Sec. 645, R.S. 1929; 39 Cyc. (II), sec. 3, p. 277; Brandon v. Carter, 119 Mo. 572, 24 S.W. 211; Rothenberger v. Garrett, 224 Mo. 191; State v. Rader, 262 Mo. 117, 171 S.W. 46, l.c. 48; Robinson v. Crutcher, 277 Mo. 1, l.c. 9, 209 S.W. 104; Arnett v. Williams, 226 Mo. 109; McManus v. Park, 287 Mo. 109, 229 S.W. 211; Morrow v. Morrow, 113 Mo. App. 444; Secs. 3138, 3147, R.S. 1929; Raper v. Lusk et al., 181 S.W. 1032, 192 Mo. App. 378. (2) William P. Johnson and his sureties having voluntarily executed and filed the bond sued on in this cause; and said Johnson having thereafter voluntarily received from his predecessor trustee, Daniel Boone, the corpus of the trust fund, $1774.85, and entered upon the discharge of his duties as such trustee, and having filed in and sought and obtained the approval of and final adjudication of said court upon his annual and final settlements as such trustee, the said William P. Johnson and his sureties on said bond are now estopped to controvert and deny the validity of the appointment and qualification of said Johnson, as such trustee, and such final adjudication of said court, with no appeal therefrom, is binding and conclusive upon all of the defendants. Barada et al. v. The Inhabitants of Carondelet, 8 Mo. 644; State v. Holt, 27 Mo. 340; State ex rel. v. Rucker, 59 Mo. 17; Henoch v. Chaney, 61 Mo. 129; Dix v. Morris, 66 Mo. 514; State ex rel. Frost v. Creusbauer, 68 Mo. 254, l.c. 257; State ex rel. Cantwell v. Stark, 75 Mo. 566, l.c. 569; State ex rel. McKown v. Williams, 77 Mo. 463, l.c. 470; State ex rel. Richardson v. James, 82 Mo. 509, l.c. 514; State ex rel. Jean v. Horn, 94 Mo. 162, l.c. 165; State to use Com. Co. v. Cochrane et al., 264 Mo. 581, 175 S.W. 599, l.c. 602; Fellows v. Kreutz, 176 S.W. 1080, l.c. 1081, 189 Mo. App. 547; C.A. Burton Machine Co. v. Ruth et al., 194 S.W. 526, l.c. 528, 196 Mo. App. 459; Nations v. Beard et al., 267 S.W. 19, l.c. 20; County of Moniteau ex rel. v. Lewis, 123 Mo. App. 673, l.c. 675, 676; Smith ex rel. v. Rogers, 191 Mo. 334, l.c. 345; Jackson Exchange Bank v. Russell, 164 S.W. 694, 181 Mo. App. 698; 9 C.J. 27; State v. O'Gorman, 75 Mo. 370.

HOSTETTER, P.J.

This suit was instituted on April 14, 1932, in the Circuit Court of Marion County, being a suit by beneficiaries of a trust fund against the trustee and sureties on his bond. The venue was subsequently changed to the Circuit Court of Audrain County, where, upon a trial, the plaintiffs prevailed and the cause is here in this court by appeal for review.

The facts are as follows: John Hefflebower, a resident of Washington County, Maryland, died testate and his will was probated in the State of Maryland on March 10, 1903. The will contained inter alia the following clause:

"4th. I give and bequeath to my said nephew, Wilbur F. Jacobs, the further sum of Fifteen Hundred Dollars ($1500.00), in trust, to be invested by him and the income thereof to be paid to my niece Sarah Kinney, for and during her life, and at her death to divide the principal ($1500) among her children surviving and the children of any deceased child or children of hers, per stirpes and not per capita."

This will was never proved or recorded in Marion County, Missouri, prior to the date of the institution of this suit. Sarah Kinney (whose name and the names of her children were spelled "Kenney") died on or about December 9, 1928. The plaintiffs are her surviving children and representatives of a deceased child, who are seeking to recover in this action the sum of $1774.85, being the amount of the principal of the trust estate, from William P. Johnson, the last trustee, and Madison Nelson, one of his sureties and Charles R. Tate, administrator of the estate of the other surety, Cicero B. Whitaker, deceased. This administrator alone is prosecuting this appeal.

The bond sued on is as follows:

"Bond of Trustee.

"We, William P. Johnson of the City of Palmyra, County of Marion and State of Missouri, and Madison Nelson and Cicero B. Whitaker, of said County of Marion and State of Missouri, as sureties, are held and firmly bound unto the State of Missouri for the use of Sarah Kinney, for and during her life and at her death to divide the principal among her children surviving, and the children of any deceased child or children of hers, per stirpes and not per capita, in the sum of Two Thousand Five Hundred ($2500) Dollars, the payment whereof well and truly to be made we bind ourselves, our heirs, executors, administrators and assigns jointly and severally, firmly by these presents.

"The condition of the above bond is, that if the said William P. Johnson, as trustee, of the trust estate left by John Hefflebower in his will for the use and benefit of Sarah Kinney and her heirs, shall faithfully care for and preserve the said trust estate, and carry out the provisions of said will, account for, pay and deliver all money and property of said estate, and perform all other things touching said estate as required by law, or the order and decree of the Marion County Circuit Court in the administration of said trust estate, then the above bond be void, otherwise to remain in full force and effect.

"Dated at Palmyra, Missouri, March 13, 1920.

                                    "WILLIAM P. JOHNSON
                                    "MADISON NELSON
                                    "CICERO B. WHITAKER
                

Wilbur F. Jacobs, a resident of Marion County, Missouri, being the trustee named in the will, appeared with his attorney in the Circuit Court of Marion County on the 24th day of November, 1903, and filed with the clerk of the court a certified copy of the will of John Hefflebower and filed his bond as trustee in said court, which bond was by the court approved and the trust estate was administered by said circuit court while Wilbur F. Jacobs was trustee until his resignation, which was in September, 1906. Thereupon the circuit court appointed as his successor, Daniel Boone, who likewise qualified by giving bond, which was approved by the court, and the trust estate was then administered in said court until February 20, 1920, when he filed his final report and resigned.

The record of the circuit court shows further that the life beneficiary, Sarah Kinney, filed in the court her consent in writing to the resignation of Daniel Boone and requested the appointment of his successor, William P. Johnson, who was thereupon appointed trustee by the court on the 13th day of March, 1920, and qualified as such trustee by executing the bond hereinbefore set out (which was approved by the court) and took charge of the estate and charged himself with the corpus of the trust fund in his first annual settlement, having received it from Daniel Boone, his predecessor.

William P. Johnson continued to administer the trust fund under the auspices of the Circuit Court of Marion County, Missouri, until his final settlement was made on March 27, 1931 in which the court found a balance due in his hands of $1774.85 and ordered the same to be paid by said trustee into the hands of the clerk of the court for the benefit of the beneficiaries. This, he failed to do, hence this suit.

Appellant makes several assignments of error, but, boiled down, they all relate to the same question, the solution of which is the determinative factor in disposing of this appeal.

It is appellant's contention that the bond sued on is a nudum pactum, and the obligors not bound thereon for the alleged reason that the Circuit Court of Marion County, Missouri, had no jurisdiction of the trust estate either to control the administration of same or to exact or approve the bond of defendant, William P. Johnson, the trustee, or the bond of either...