State of Missouri v. Wells, et al.

• Decision Date: 09 February 1948
• Docket Number: No. 20902.,20902.
• Citation: 210 S.W.2d 387
• Parties: STATE OF MISSOURI, AT THE RELATION OF JAMES A. KOONTZ, ADMINISTRATOR, ETC., RESPONDENT, v. MABELLE WHITSETT WELLS, ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

210 S.W.2d 387

STATE OF MISSOURI, AT THE RELATION OF JAMES A. KOONTZ, ADMINISTRATOR, ETC., RESPONDENT, v. MABELLE WHITSETT WELLS, ET AL., APPELLANTS.

No. 20902.

Kansas City Court of Appeals. Missouri.

Opinion delivered February 9, 1948.

Appeal from Circuit Court of Jackson County. — Hon. James W. Broaddus, Judge.

REVERSED AND REMANDED.

W.H.L. Watts and Walter A. Raymond for appellants.

(1) James A. Koontz, administrator, was not a party aggrieved so as to be authorized to appeal from the order of distribution entered by the probate court on March 4, 1941. His appeal to the circuit court did not confer jurisdiction on that court and the action of that court on appeal is void, leaving the order of the probate court of March 4, 1941, final and conclusive of the rights of the parties. In re Whitsett's Estate, 172 S.W. 2d 965. McLean v. Jeffray et al., (C.C.A. 8th Cir., 1934) 71 F. 2d 743. Edwards v. Holland Banking Company, (C.C.A. 8th Cir., Mo., 1935) 75 F. 2d 713. Grand Island & W.E. Railroad Co. v. Sweeney, 103 Fed. 352. Dillon, Administrator, v. Bates, Trustee, 39 Mo. 292. Tri-State Land & Trust Co. v. Fell et al., (Indiana, 1927) 156 N.E. 167. (2) The question of ownership of this insurance fund has not been finally determined against Mabelle Whitsett Wells, administratrix de bonis non, and this action against defendant, the Western Casualty & Surety Company, as her surety, is premature and should be dismissed. State ex rel. and to Use of Gnekow v. United States Fidelity & Guaranty Co., 349 Mo. 528, 163 S.W. 2d 86. (3) The court erred in holding that appellant, Mabelle Whitsett Wells, wrongfully obtained possession of said insurance fund "under color of letters of administration." Her appointment was authorized and regular and she was the proper and only party legally entitled to receive said money. 38 U.S.C.A., Sec. 514. Singleton v. Cheek, 284 U.S. 493, 52 S. Ct. 257. Curtik v. United States, 19 Fed. Supp. 447. Drew v. United States, (C.C.A. 6) 104 F. 2d 939. State ex rel. Lankford v. Fidelity & Deposit Co. of Maryland, 232 Mo. App. 979, 123 S.W. 2d 552. Viehmann v. Viehmann, 298 Mo. 356, 250 S.W. 565. Wright v. Hetherlin, 277 Mo. 99, 209 S.W. 871. Rawlings v. Rawlings, 332 Mo. 503, 58 S.W. 2d 735. (4) Under plaintiff's trial theory, under which the judgment in his favor was obtained in this suit, Mrs. Wells was not entitled to receive the commuted insurance payments hence plaintiff's cause of action accrued on October 12, 1938. This suit was instituted on December 27, 1944, or more than six years after plaintiff's cause of action had accrued, hence said action is barred by the five year statutes of limitations and by laches. Sec. 1014, R.S. Mo., 1939. Howard County v. Moniteau County, 336 Mo. 295, 78 S.W. 2d 96, 98 (5). Kerber v. Rowe, 348 Mo. 1125, 156 S.W. 2d 925, 928 (6). (5) The court erred in entering a decree for plaintiff as the plaintiff's petition shows on its face that plaintiff's alleged cause of action was barred by the five year statute of limitations and no facts are pleaded tending to toll such statute. For this reason this petition wholly fails to state a cause of action and is insufficient to sustain a decree for plaintiff. Kerber v. Rowe, 348 Mo. 1125, 156 S.W. 2d 925. Section 66, New Missouri Code (Mo. R.S.A., Sec. 847.66). (6) The court erred in construing the will of George P. Whitsett so as to disinherit his heirs and leave the balance of his insurance to his wife's heirs. Such construction violates the rule of construction that there is a presumption against the intention to disinherit one's legal heirs. Grundman v. Wilde, 346 Mo. 327, 141 S.W. 2d 778. Mort v. Trustees of Baker University, 229 Mo. App. 632, 78 S.W. 2d 498. First Trust Co. v. Myers, 351 Mo. 899, 174 S.W. 2d 378. (7) The remainder of the fund after the death of Mr. Whitsett was not administered in the original probate proceedings. Wright v. Hetherlin, 277 Mo. 99, 209 S.W. 871. State ex rel. Lankford v. Fidelity & Deposit Co. of Maryland, 228 Mo. App. 953, 74 S.W. 2d 904. (8) The probate court had jurisdiction and authority to issue letters of administration de bonis non to Mrs. Wells. Such appointment is not subject to collateral attack. Wright v. Hetherlin, 277 Mo. 99, 209 S.W. 871. Kerr v. Prudential Ins. Co., 194 S.W. 2d 706. State ex rel. Lankford v. Fidelity & Deposit Co. of Maryland, 232 Mo. App. 979, 123 S.W. 2d 552. American National Bank & Trust Company v. United States, 134 F. 2d 674. (9) Mrs. Whitsett could not by her will pass the remainder of this fund to her legatees and divert the fund from the heirs at law of the deceased soldier. State ex rel. Lankford v. Fidelity & Deposit Co. of Maryland, 228 Mo. App. 953, 74 S.W. 2d 904. United States v. Towery, 306 U.S. 324, 59 S. Ct. 522. United States v. Mallery, 48 F. 2d 6. Salzer v. United States, 300 Fed. 767. Salzer v. United States, 273 U.S. 702, 47 S. Ct. 90. Revich v. United States, 25 F. 2d 670. Schroeder v. United States, 39 F. 2d 225. McCullough v. Smith, 293 U.S. 228, 55 S. Ct. 157. White v. United States, 270 U.S. 175, 46 S. Ct. 274. Johnson v. United States, 102 F. 2d 729. Lopez v. United States, 82 F. 2d 982, 986. (10) The statute of limitations was properly pleaded. Evidence sustaining such defense was admitted without objection and that issue fully litigated. Butler v. Cantley, 47 S.W. 2d 258, 260. Scott v. St. Louis-San Francisco Ry. Co., 52 S.W. 2d. General Motors Acceptance Corp. v. Lyman, 229 Mo. App. 455, 78 S.W. 2d 109. Cook v. Sears Roebuck & Co., 71 S.W. 2d 73. Ingersoll County v. Belt, 71 S.W. 2d 118. Lewis v. Lewis, 189 S.W. 2d 557. In re Whitsett's Estate, 172 S.W. 2d 965. Glosch v. Central Life Ins. Co. of Illinois, 176 S.W. 2d 46. Steinbaum v. Wallace, 176 S.W. 2d 683. Block v. Holly, 106 S.W. 2d 963. Baldwin v. Importers & Exporters Ins. Co. of New York, 124 S.W. 2d 549.

Martin J. O'Donnell for respondent.

(1) The War Risk insurance fund became an asset of the estate of George P. Whitsett at the instant of his death, and was fully administered upon by Mrs. Whitsett as executrix, and same was awarded to her by the probate court on the date of her final discharge on February 15, 1926. Singleton v. Cheek, 284 U.S. 493; Section 47 R.S. Mo. 1939; Derge v. Hill, 103 Mo. App. 281; 26 C.J.S., p. 1097, Sections 65-66. Derge v. Hill, 103 Mo. App. 281. The recitals in the application in view of the Federal Statute did not constitute even probable cause for the ex parte appointment of Mrs. Wells. Ripley v. Bank of Skidmore, 198 S.W. 2d 861. As this is an equity case, it is heard de novo. Anast v. Czerwenka, 203 S.W. 2d 463. Will and the policy issued to him by the Government naming his wife as the sole beneficiary thereof, both operated, on his death, under the existing laws, on probate of his will and final settlement, to vest Mrs. Whitsett with the absolute title to said property. United States v. Napoleon, 296 Fed. 811, dismissed 266 U.S. 641; Reivich v. United States, 25 Fed. 2d 670 (C.C.A. 2); United States v. Graves, 39 Fed. 2d 225; United States v. Mallory, 48 Fed. 2d 6, l.c. 8. Schroeder v. United States, 24 Fed. 2d 420. Revich v. United States, 25 Fed. 2d 670. Napoleon v. United States, 296 Fed. 811, writ dismissed 266 U.S. 641, Section 402 of the War Risk Act of October, 1917. United States v. Mallery, 48 Fed. 2d 6; In re Harr, 186 At. 120, l.c. 124, 323 Pa. 380. By their fraudulent act appellants induced the Government to give the fund into their custody. Notwithstanding that fund is still the property of the United States Government, they claim it by limitation. Butler v. Cantley, 47 S.W. 2d 258. Koppel v. Rowland, 319 Mo. 602 S.W. 2d 816. Elliot v. Machine Co., 236 Mo. 546. Canada v. Daniel, 175 Mo. App. 55. Appellants were trustees for the fund. When they obtained the fund they became trustees. Christiansen v. Christiansen, 14 Fed. 2d 477. Gibson v. Ransdell, 188 S.W. 2d 35. Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257. Murphy v. de France, 105 Mo. 53. Christiansen v. Christiansen, 14 Fed. 2d 477. Woerner on Administration, 3rd Ed., Section 10, page 10; State ex rel. v. Bird, 253 Mo. 569. The Surety Company, conspiring with the alleged administrator, rendered itself liable for using state power to deprive respondent of rights secured by an Act of Congress, rendering both liable, Section 43, Title 8, U.S.C. This fund, until it reaches the administrator of the beneficiary's estate, is a fund in which the Government is interested. Butler v. Cantley, 47 S.W. 258. Appellants, through an unlawful agreement in violation of the War Risk Insurance Acts have unlawfully appropriated this fund to their own use and held it for 9 years. Consequently, since the trial court found that appellants' acts were wrongfully done under color of state law, they are liable to respondent under the provisions of Section 43, Title 8, U.S.C.A., at least for the amount of the insurance, with interest at 6% from the date of receipt. Adler v. Myers, 188 M.A. 607. Spicer v. Smith, 288 U.S. 430, Enright v. Hale Petroleum Co., 250 S.W. 908.^* Guardian Trust Company v. Railway Co., 28 Fed. 2d 233. Bank v. Schaake, 203 S.W. 2d 611, Syl. 5. In re Whitsett, 172 S.W. 2d 965, Sections 283, 94 and 98 R.S. 1939.

CAVE, P.J.

This is a suit in equity to recover an alleged trust fund alleged to be wrongfully withheld from plaintiff. Plaintiff recovered a money judgment against the defendants in the sum of $5,023.30. After moving unsuccessfully for new trials, the defendants bring their joint appeal to this court.

The pertinent facts and proceedings giving rise to this controversy are as follows:

In 1905, George P. Whitsett made his will, the material part of which is:

"I hereby give, devise and bequeath unto my wife Lavina Ann Whitsett all my property of which I may die seized of every kind, class and description whatsoever, both real, personal and mixed and wheresoever situate."

In 1918, while serving as a Lieutenant-Colonel in the United States Army, said ...