State v. Lust

• Decision Date: 03 July 1917
• Docket Number: No. 14636.,14636.
• Parties: STATE ex rel. and to Use of LUST v. LUST et al.
• Court: Missouri Court of Appeals

197 S.W. 172

STATE ex rel. and to Use of LUST v. LUST et al.

No. 14636.

St. Louis Court of Appeals. Missouri.

July 3, 1917.

Rehearing Denied July 17, 1917.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Suit by the State, on the relation and to the use of Freddie Sybel Lust, against Christian G. Lust and others. Judgment for plaintiff, and defendants appeal. Reversed, and cause remanded, with directions.

This is an action, prosecuted in the name of the state by the relator, Freddie Sybel Lust, upon the bond of defendant Christian G. Lust, as executor of the will of his father, John Christian Lust, deceased. The bond is executed by said defendant as principal and by his codefendants as sureties; the defendants being sons and daughters of the said testator. The relator is the only child and heir of one Silas F. Lust, now deceased, another son of the testator, and who survived the latter. The cause was tried by the court without a jury, a jury having been waived, resulting in a judgment for plaintiff, and certain defendants prosecute the appeal.

The Petition.

The petition alleges that John Christian Lust died intestate in Pike county, Mo., on the ____ day of ____, 1894; that by his last will and testament he named said Christian G. Lust, his son, executor thereof, and that shortly after his death his will was duly probated in Pike county, and Christian G. Lust duly qualified as executor and proceeded to administer the estate, having first, to wit, on August 27, 1894, executed the bond sued upon, in the penal sum of $17,000, which is fully set out in the petition; that Silas F. Lust was a son of said John Christian Lust, deceased, and died in Audrain county, Mo., on November 1, 1895, and that the relator, Freddie Sybel Lust, was born on November 7, 1895, "and was and is the only child and heir of said Silas F. Lust, deceased"; that on May 24, 1898, defendant Christian G. Lust made a final settlement of said estate, and distributed and paid out "to all of the heirs and legatees of said estate," excepting this relator, the sum of $8,670.64 out of the personal estate of said testator. And for a breach of the bond sued upon it is averred that the relator, at the date of said final settlement, was "an heir of the estate of said John Christian Lust, deceased, and was justly and legally entitled to a one-ninth interest in the distribution of the personal estate made by said executor," and that the amount due the relator on final settlement and distribution was $963.38; that at the time of said final settlement the defendant executor and his codefendants, the sureties upon his bond, knew that the relator "was justly and legally entitled to one-ninth interest in the distribution of said personal estate," and knew that she was then an infant about 2½ years of age, and that her father, Silas F. Lust, was dead; and it is averred that the defendant executor failed, neglected, and refused to pay the said sum of $963.38 to relator, though the payment thereof was requested. The petition prays judgment for the penalty of the bond, and that execution issue for the sum of $963.38, with 6 per cent. interest thereon from May 24, 1898.

The Answer.

The defendants Christian G. Lust, Samuel Lust, Louise Lust, Elizabeth Lust, Caroline Lust, and Mary J. Laird (i. e., the defendants other than Charles J. Lust and William H. Lust) filed what is termed "their answer to plaintiff's petition in the above-entitled cause, and as a cross-petition against the relator, Freddie Sybel Lust, and the defendants Charles J. Lust and William H. Lust." This pleading admits that John Christian Lust died testate, that the will was duly probated, and that defendant Christian G. Lust, named as executor therein, duly qualified and proceeded to administer the estate, having first given the bond set out in the petition. These defendants further admit that Silas F. Lust was a son of the testator, that he died in Audrain county, Mo., on November 1, 1895, intestate, and that relator was born November 7, 1895, and is the child and only heir of said Silas F. Lust, deceased. It is then alleged that defendant Christian G. Lust, as such executor, did on May 24, 1898, "attempt to make a final settlement of said estate" in the probate court of Pike county, but that "said settlement has not been approved by said court and is still pending therein for adjudication, and said executor has not been discharged by said court and is still subject to its orders." And the defendants thus answering deny that there has been a breach of the bond sued on, "deny that relator is an heir of said testator," deny that at the date of said settlement, or at any other time, relator was justly and legally entitled to a one-ninth interest in the personal estate of the testator, or any interest whatever therein, deny that there was due her on final settlement the sum of $963.38, or any other sum, and deny "every other allegation" of the petition not by the answer "expressly admitted to be true." It is then alleged that, at the time of the death of the testator, relator's father, Silas F. Lust, and Charles J. Lust, one of the defendants, were indebted to the testator in the sum of $7,178.84 upon a joint promissory note executed by them to the testator on December 23, 1893, for the principal sum of $6,880, and bearing interest at the rate of 6 per cent. per annum, that the note was duly inventoried by the executor, and that no part thereof has been paid "except as hereinafter stated." It is further alleged that at the death of the testator the defendant William H. Lust was indebted to him on five promissory notes, totaling $2,370.80, the notes being fully described; that these notes were likewise inventoried by the executor, and that no part thereof has been paid "except as hereinafter stated"; and that the respective makers of all of the notes mentioned, at the death of the said testator, were and ever since have been wholly insolvent. And it is alleged that the testator, by his last will and testament, after making certain devises and bequests mentioned, devised and bequeathed the residue of his estate, real and personal, to the defendants herein and relator's father, Silas F. Lust, to be divided equally among them. Further allegations are made concerning an unsuccessful attempt by a daughter of the testator, not a party to this action, to set aside the will, whereby this daughter, it is said, forfeited her rights under the will in accordance with the provisions thereof.

It is further alleged that the personal estate of the testator, "after delivering to his widow that portion thereof allowed her by law," was insufficient to pay the debts and expenses of administration, and that the executor and these answering defendants paid out of their own means a legacy of $100 to one Harry Liter, and in addition paid debts and expenses amounting to $445.59, and that at the time of the settlement on May 24, 1898, there was no personal estate to be distributed among the residuary legatees, and that nothing was in fact distributed among them by said settlement; that "for the purpose of making a final settlement and getting credit for said notes, which were inventoried against him," defendant Christian G. Lust, as executor, charged himself with all of the notes mentioned, and made a pretended distribution of the balance thereby found to be due and on hand for distribution; "and that the other defendants answering herein, who with said executor were the only persons that had any interest or distributable share resulting from said settlement, consented to and ratified said procedure by giving to the executor receipts for the respective amounts shown by said settlement to be due them." It is then averred that neither the relator, nor the defendants Charles J. Lust and William H. Lust, nor said Silas F. Lust, deceased, "ever had, or now have, any distributable share or shares, or any other right, title, or interest whatever, in the entire estate of said testator, real or personal, because at all times since the death of said testator said notes, as executed to him as aforesaid by Wm. H. Lust, Silas F. Lust, and Chas. J. Lust, have greatly exceeded the interests of the respective makers of said notes in said estate." And further answering these defendants say:

"That even though said executor in said settlement did charge himself with the inventoried amount of said notes, and that the settlement thereby showed a distributable share of $963.38 to each, the relator in right of her deceased father, Silas F. Lust, and to Charles J. Lust, and Wm. H. Lust, still said executor had the right to retain, and did retain, said distributive shares, in part payment of the said notes, applying each share to the note which was executed by the person or persons to whom said shares were due, which notes are still in the possession of the executor."

This answer concludes as follows:

"Wherefore, having fully answered, said defendants make this answer a cross-petition against the plaintiff and said relator, and the defendants Charles J. Lust and William H. Lust, and pray the court to adjudge and decree that neither they nor either of them have any right, title, interest, or distributable share in and to the estate of said testator, John Christian Lust, deceased, and for any and all other proper and equitable relief."

The Reply.

The reply filed by plaintiff avers that defendants "are mistaken when they say there was no administration had or granted upon the estate of Silas F. Lust, deceased," and that it is not true that the estate of John Christian Lust, deceased, "is still open and has not been finally settled," averring that defendant executor gave notice, as required by law, that he would make a final settlement of the estate at the May term, 1898, of the probate court of Pike county, and that at said term defendant executor did make and file in the probate court...