Stoff v. Schuetze
| Decision Date | 08 April 1922 |
| Citation | 240 S.W. 139,293 Mo. 635 |
| Parties | EMMA STOFF, Appellant, v. MARY SCHUETZE and LOUIS C. REESE |
| Court | Missouri Supreme Court |
Appeal from Franklin Circuit Court. -- Hon. R. A. Breuer, Judge.
Reversed and remanded.
James Booth and Jesse H. Schaper for appellant; Shepard Barclay of counsel.
(1) An executor or administrator is a trustee, and when he purchases property with funds of the estate he holds the property in trust for the estate and those entitled thereto; and it makes no difference whether the deed be to him as executor or administrator or not. Harney v. Donohoe, 97 Mo. 144; Hynds v. Hynds, 274 Mo. 123; Patterson v Booth, 103 Mo. 402; 24 C. J. 200-1. (2) Where land is taken by the executor or administrator in payment of a debt due the estate, the land becomes assets in his hands and not property held in his individual right, and it should by way of substitution be subjected by him to the payment of debts and legacies, and to distribution, like personalty. 24 C. J. p. 201, sec. 708; Mabary v. Dollarheide, 98 Mo. 198. (3) An administrator is a trustee, and cannot set up the Statute of Limitations in bar to the next kin or persons entitled to the distribuion of the assets of the estate. To a suit by a distributee for his share against an administrator holding the fund in trust, the Statute of Limitations does not apply. No lapse of time is a bar to a direct trust, or a fraud, as between trustee and beneficiary. Rubey v Barnett, 12 Mo. 3; Decouche v. Savetier, 3 Johns. Ch. 190; Dillon v. Bates, 39 Mo. 292. (4) The so called "final settlement" of Schuetze in 1863 did not release him from the trust. It does not purport to discharge him; no order of distribution was made, and the trust imposed by the facts was not changed. Rugle v. Webster, 55 Mo. 250; Ewing v. Parrish, 148 Mo.App. 500; Rogers v. Johnson, 125 Mo. 202. (5) The declarations of Schuetze while in possession of the land were admissible as original evidence. 1 Greenl. Evi. (16 Ed.) sec. 108; Boynton v. Miller, 144 Mo. 681; Anderson v. McPike, 86 Mo. 293. (6) The facts show that it was a fraud on plaintiff for Schuetze to dispose of these tracts contrary to the trust on which he admitted he held them. But that could not be, and was not, discovered until his will was known by probate in 1915; so plaintiff is not barred. R. S. 1919, sec. 1317; Bank v. Nichols, 235 Mo. 401. (7) The investment of the funds of plaintiff's mother by Schuetze, in his own name, would raise a trust for her. Holman v. Holman, 183 S.W. 623. (8) The facts in evidence show an express declaration of trust for the children of the beneficiary, and that a writing to that effect was executed and destroyed by Schuetze. The inference must be that said paper writing was a declaration of the trust he verbally agreed to. Pomeroy v. Benton, 77 Mo. 64; Shawhan v. Distill. Co., 195 Mo.App. 450. (a) The defendant's Exhibit D is insufficient to divest the estate of plaintiff in said property, already vested in her by said trust; and was nugatory under Missouri laws. R. S. 1919, sec. 7328; Moss v. Ardrey, 260 Mo. 595. (9) There could be no start for the bar by limitation before the death of Schuetze, as he would be entitled to possession of the land until then, as tenant by curtesy, there having been a child born of his first marriage. Roberts v. Nelson, 87 Mo. 229; Bradley v. Railroad, 91 Mo. 493.
John W. Booth for respondent.
(1) The Statutes of Limitation apply to all actions saving those which by statute are specially excepted. Rogers v. Brown, 61 Mo. 187; Adair v. Adair, 78 Mo. 635; Buren v. Buren, 79 Mo. 538; Hoseter v. Sammelsmann, 101 Mo. 619; Franklin v. Cunningham, 187 Mo. 184; Freeland v. Williamson, 220 Mo. 217; Hudson v. Cahoon, 193 Mo. 547. (2) In express technical trusts the Statute of Limitations does not begin to run until the trust in denied by the trustee; but the cestui que trust, in case of such denial, is limited to the period allowed for the recovery of legal estates at law. In implied trusts, the Statute of Limitations begins to run as soon as the facts are brought to the knowledge of the cestui que trust so that he can take steps to enforce the trust. Keeton's Heirs v. Keeton's Admr., 20 Mo. 530; Buren v. Buren, 79 Mo. 542; Hunter v. Hunter, 50 Mo. 445; Smith v. Ricord's Admr., 52 Mo. 481; Landis v. Saxton, 105 Mo. 486; Shelby County v. Bragg, 135 Mo. 291; Loomis v. Railroad, 165 Mo. 469; Callan v. Callan, 175 Mo. 346; State ex rel. v. Yates, 231 Mo. 276; 25 Cyc. 1159; 36 Cyc. 27. (3) Failure to discover fraud will not toll the statute unless the party sought to be charged as trustee does some act preventing discovery. State ex rel. v. Musick, 165 Mo.App. 214. (4) The burden is on the party seeking relief against fraud to show that he did not have notice within the period of limitation. Central Bank v. Thayer, 184 Mo. 61. (5) If a party against whom an implied trust is sought to be established is in possession, or if the cestui que trust has notice of the main fact constituting the fraud, the statute will commence running from that time. Hunter v. Hunter, 50 Mo. 452. (6) Prior to the time the Married Woman's Act of 1875 went into effect the right of a husband, with or without the consent of his wife, to reduce to his possession and use as his own his wife's personal assets and money, including money arising from sale of her real estate, as at common law, was complete. Tillman v. Tillman's Estate, 50 Mo. 40; Hart v. Leete, 104 Mo. 315; Leete v. Bank of St. Louis, 141 Mo. 574. (7) The existence of a life estate is no impediment to an action by the remainderman for equitable relief in a matter affecting his title as remainderman. 16 Cyc. 663; Hoester v. Sammelmann, 101 Mo. 619. (8) Proof that a paper was destroyed, not accompanied by any evidence of the contents of the paper, cannot be taken as evidence of a written declaration of trust in land. Even a fragment of a writing failing to show a trust in personal estate which is inexplicit as to the property is inadmissible though it bears the signature of the party sought to be charged with the trust. McKee v. Allen, 204 Mo. 685. (9) When one of the parties to the cause of action on trial is dead the other party is not a competent witness in his own behalf, or in behalf of any person jointly interested with him. R. S. 1919, sec. 5410; Messimer v. McCray, 113 Mo. 387 to 390. (a) This disqualification extends to all matters which might be disputed by the deceased party relative to his personal conduct or declaration or admission. Elsea v. Smith, 273 Mo. 396; Leava v. Ry. Co., 266 Mo. 151; Brown v. Patterson, 224 Mo. 639. (10) The disqualification created by R. S. 1919, sec. 5410, is not removed by dismissal of the suit as to that party. Messimer v. McCray, 113 Mo. 382. (11) Except as to newly discovered assets or performance of some formal act in execution of a sale made by an administrator, an administrator's power and authority as such is terminated by approval of his final settlement made after due notice. And when the final settlement shows a balance in favor of the administrator, and nothing for distribution, an order that the administrator be no longer required to make annual settlements is a discharge of the administrator. It is on all-fours with the operation of an order of a circuit court overruling exceptions to the report of a referee which operates as an approval of the report, State to use v. Roland, 23 Mo. 95; Patterson v. Booth, 103 Mo. 402; Pomeroy v. Benton, 77 Mo. 83.
This is an action in equity, instituted February 25, 1916, seeking to establish a constructive trust in favor of plaintiff, Emma Stoff, and defendant, Louis C. Reese, in two tracts of land in Franklin County held by defendant Mary Schuetze. Defendant Reese is the brother of plaintiff, and defendant Schuetze is the second wife of plaintiff's step-father. The two tracts of land involved are referred to in the record as the 30-acre tract and the 31-acre tract.
The petition is in two counts. The first count alleges that plaintiff's father, John D. Reese, died in 1859, leaving surviving him his widow, Maria S. Reese, and plaintiff and defendant Reese, his only children; that at the time of his death he was seized and possessed of 54 acres of land, upon which he resided, and about $ 1700 worth of personal property, consisting in part of ten notes of one Johann Weyrick aggregating $ 995, given for the purchase price of the 30-acre tract of land in suit; that by his last will, duly admitted to probate, said John D. Reese left all of his real and personal estate, after the payment of debts, to Maria S. Reese, his widow, for life, with remainder to plaintiff and defendant Reese equally; that his widow duly qualified as executrix under the said will, and, as such, recovered judgment on April 18, 1860, against the aforesaid Johann Weyrick, for $ 112.01 on one of the aforesaid purchase-money notes given by him; that Maria S. Reese subsequently married one John G. Schuetze, whereupon her letters as executrix were revoked, and her husband was appointed administrator de bonis non of the estate of said Reese; that said John G. Schuetze, as such administrator, thereupon caused an execution to be issued upon said judgment obtained against Weyrick as aforesaid, by virtue of which the 30-acre tract in suit was levied upon and sold, on October 5, 1860, by the sheriff of Franklin County; that at such sale said John G. Schuetze was the highest and best bidder for the price and sum of $ 135; that the property was sold to him for that price, the same being paid by said Schuetze "with the moneys or funds in his hands as such administrator and belonging to said estate of John D. Reese, deceased," and that a sheriff's deed was made and delivered to him...
To continue reading
Request your trial