State v. Fidelity & Casualty Co. of New York

• Decision Date: 07 May 1935
• Docket Number: No. 23239.,23239.
• Citation: 82 S.W.2d 123
• Court: Missouri Court of Appeals
• Parties: STATE ex rel. RICHARDS et al. v. FIDELITY & CASUALTY CO. OF NEW YORK.

82 S.W.2d 123

STATE ex rel. RICHARDS et al. v. FIDELITY & CASUALTY CO. OF NEW YORK.

No. 23239.

St. Louis Court of Appeals. Missouri.

May 7, 1935.

Appeal from Circuit Court, Marion County; Edmund L. Alford, Judge.

"Not to be published in State Reports."

Action by the State of Missouri, on the relation of John L. Richards, trustee of the estate of George E. Gullion, deceased, and others, against the Fidelity & Casualty Company of New York. Judgment for defendant, and relators appeal.

Affirmed.

E. W. Nelson and Harry Carstarphen, both of Hannibal, for appellants.

George A. Hodgman, of St. Louis, and Mahan, Mahan & Fuller, of Hannibal, for respondent.

SUTTON Commissioner.

This is an action on a surety bond in the sum of $2,000 executed by Elijah D. Gullion, now deceased, as principal, and the defendant, the Fidelity & Casualty Company, as surety.

The trial before the court, without a jury, resulted in a finding and judgment for defendant, and relators appeal.

The will of George E. Gullion, deceased, executed on November 7, 1921, and admitted to probate by the probate court of Marion county, Mo., on December 15, 1924, after directing the payment of his debts, disposes of his property as follows:

"Second: I hereby give and bequeath to my friends, Nettie Brunk and Mary Brunk, of Emerson, Marion County, Missouri, the sum of one thousand ($1,000) dollars, to be paid to them in cash, and they to use the income from the same for their own pleasure during the life of both, and when one of them should die, then the survivor shall have the use of said sum given, and at the death of both Nettie Brunk and Mary Brunk, then it is my request that they shall leave said sum of one thousand ($1,000) dollars to my children at law.

"Third: I hereby give to my sister, Leah Bowles of Emerson, Marion County, Missouri, the sum of one thousand ($1,000) dollars, to be paid to her in cash, and she to use the income from this said sum for her own pleasure during her life, and at her death, then it is my request that she shall leave this said sum of one thousand ($1,000) dollars to my lawful children.

"Fourth: As soon after my death as may be without injury and discredit to my estate, I desire that all my personal property and all my real estate in Marion County, Missouri, shall be sold for cash, and the amount of proceeds received for the same, less the amounts in Article Two and Three, together with all interest or income received therefrom, from time to time be held in trust by a trustee hereinafter named, until my two (children) daughters, Zona Gullion and Zelma Gullion shall become of age, when it shall be divided between them in equal proportion, each to share and share alike, but if either of them should die intestate (without offspring), then the whole amount is to pass to the survivor, and if both Zona and Zelma Gullion die intestate without offspring), then it is my desire (here follows disposition to other collateral heirs.)

"Fifth: I hereby nominate and appoint Elijah D. Gullion to be the sole executor of this my last will and testament, and request that no bond be required or given by him as such executor.

"Sixth: I hereby nominate and appoint Elijah D. Gullion to be sole trustee of all money resulting from the administration of this my last will and testament, and request that no bond be required or given by him as such trustee, and I desire and request that he as such trustee appointed by me, make all final settlements legally in accordance to my wishes and dictation herein set forth."

Elijah D. Gullion qualified as executor under the will, on December 15, 1924, and took charge of the estate of the deceased as such executor. He filed a settlement with the probate court on August 4, 1925, another on February 13, 1926, and another on February 8, 1927, which settlements were approved by the court. The settlement of February 8, 1927, shows a balance due the estate of $1,641.94.

It appears that George E. Gullion owned a farm in Marion county. The record does not show the value of the farm. The settlements filed by the executor indicate that the farm was mortgaged for $4,000. It seems that there was some sort of partnership arrangement between George E. Gullion and Ira Taylor in carrying on farming operations on this farm.

In October, 1927, a suit was instituted in the circuit court of Marion county, styled Elijah D. Gullion, Administrator of the Estate of George E. Gullion, Deceased, v. Ira Taylor, and numbered 7791. The petition in that suit is, in substance, as follows: "Plaintiff alleges that he is the duly appointed and qualified administrator of George E. Gullion, who died December 6, 1924, and that as such administrator plaintiff has been dully authorized, empowered, and directed by the Probate Court to enforce the rights and claims herein asserted; that on November 4, 1921, George E. Gullion was the owner of personal property on his farm and defendant, Ira Taylor, was tenant, to which tenant on said date George E. Gullion sold a one-half interest in the personal property thereon, including live stock and farm equipment, and that said Taylor paid therefor by his promissory note for $4,497.87, secured by a chattel mortgage on the property sold; that defendant Taylor paid $1200 on said note; that a lien exists on defendant Taylor's interest in said property in favor of George E. Gullion for the balance due on said note, and that the property cannot be divided in kind; wherefore plaintiff prays that partition be decreed and that the property be sold and the proceeds of such sale be partitioned between the plaintiff and defendant according to their respective rights and as warranted in the premises; and plaintiff further prays that a receiver be appointed to hold and have charge of said property, to collect and preserve the same, and to dispose of the same at the best market price obtainable, or to hold the same subject to the orders of the court for the sale and disposition thereof and to hold the same until otherwise ordered by the court, and that defendant Taylor be restrained and enjoined from selling or disposing of said property, and that the court order and cause to be made an accounting between the parties with respect to said property, and that defendant Taylor be required to account for the sale and disposition of the proceeds arising from the property heretofore sold and disposed of by said defendant Taylor and belonging to said parties."

Clarence Bender, then sheriff of Marion county, was appointed as receiver by the court to take charge of and sell the property involved in said suit. The receiver, under an order of the court, sold the property, realizing on such sale $2,156.91, and on April 6, 1928, made report of such sale to the court, showing the amount realized and the expenses incurred. After payment of the expenses, costs, and allowances, aggregating $325.80, there remained in the hands of the receiver $1,831.11.

On May 23, 1928, the court approved the report of the receiver, and ordered him to pay over the said sum of $1,831.11 "to the plaintiff E. D. Gullion, administrator of the estate of George E. Gullion, deceased." On July 2, 1928, the receiver filed his report showing that he had, pursuant to said order of the court, paid to "E. D. Gullion, administrator, $1,831.11."

There was testimony on behalf of appellants to the effect that some time prior to the payment of said sum of $1,831.11 by the receiver to E. D. Gullion, Nettie Brunk, Mary Brunk, and Leah Bowles gave receipts to E. D. Gullion, as executor, for the amounts of their legacies under the will of George E. Gullion. The receipts were not put in evidence. They could not be found. It is conceded that there was nothing paid for them.

The evidence also shows that prior to the payment of the money realized from the sale of the property by the receiver in said case of E. D. Gullion, Administrator, v. Ira Taylor, Zona Gullion and Zelma Gullion, children of George E. Gullion, deceased, and legatees under his will, through their mother as their natural guardian, instituted in the circuit court of Marion county a proceeding to require said Elijah D. Gullion to give bond as trustee under said will, said proceeding being styled, "In the Matter of the Trust Estate Created under the Will of George E. Gullion, Deceased," and numbered 7870. On July 2, 1928, the court made an order in said proceeding substantially as follows: "It appears to the court that the mother and natural guardian of Zona Gullion and Zelma Gullion, children of George E. Gullion, deceased, requests that said Elijah D. Gullion give bond as trustee under the will of George E. Gullion, deceased, for the faithful performance and due discharge of his duties as such trustee under said will, and said trustee consenting thereto, said trustee is ordered and directed to give and file in this court a bond in the sum of $2,000 as such trustee for the faithful performance and due discharge of his duties as such trustee, said bond to be approved by this court or the clerk thereof if filed during vacation of this court."

Thereupon, on the same day, the bond in suit, conditioned as required by said order, was made, filed, and approved.

There was testimony on behalf of the appellants that there was an understanding between the attorneys for the guardian of Zona and Zelma Gullion, and the receiver, that the money ordered paid over to Gullion, in the case of Gullion, Administrator, v. Taylor, should not be paid over to him until a bond was given by him, and that the money was not paid over to him until the bond in suit was given.

Respondent put in evidence, over the objection of the appellants, what purports to be a settlement in the probate court, made by Elijah D. Gullion, as executor of the estate of George E. Gullion, deceased. The settlement was sworn to before the clerk of the probate court on February 6, 1929. It was not marked filed, nor does it appear that it was approved...