The State ex rel. Jones v. Jones

• Decision Date: 26 November 1895
• Citation: 33 S.W. 23,131 Mo. 194
• Parties: The State ex rel. Jones, Appellant, v. Jones et al
• Court: Missouri Supreme Court

33 S.W. 23

131 Mo. 194

The State ex rel. Jones, Appellant, v. Jones et al

Supreme Court of Missouri, First Division

November 26, 1895

Appeal from Warren Circuit Court. -- Hon. W. W. Edwards, Judge.

Affirmed.

Knapp & Harris for appellant.

Johnson Smith & Drunert for respondent.

(1) The probate court had no jurisdiction to try any question presented in the case at bar. Johnson v. Jones, 47 Mo.App. 237. (2) The order of distribution was made in conformity with the statutes and rulings of the appellate court of this state. Johnson v. Jones, 47 Mo.App 237; Knowlton v. Johnson, 46 Me. 489; Woerner on Administration, sec. 151. (3) The order of distribution does not conclude the rights of anyone not a party to it. Johnson v. Jones, 47 Mo.App. 237; Knowlton v Johnson, 46 Me. 489; Woerner, secs. 151, 1011, 1235, and note. (4) The suit at bar is an ordinary action at law, for the recovery of money. The relator can not convert it into an equitable action by his reply and obtain equitable relief. McQuillin's Mo. Pl. and Pr., sec. 404; Bliss on Code. Pl., 393, 394, 395 and 396. (5) Relator procured the sale to be made. It was made at his instance and request. He received the purchase price and executed a writing transferring all his interest in the estate; by his conduct and request induced the parties to part with their money and change their situation, and now seeks to profit by his own wrong without making, or offering to make, reparation. He is, therefore, now estopped from asserting the invalidity of the contract. Bigelow on Estop. [3 Ed.], p. 480, and case cited; Flavill v. Roberts, 50 N.Y. 222. (6) The relator is also estopped by his acquiescence in an affirmance of the sale and transfer. He permitted the same to stand for about three years and a half, until a final settlement of the estate was made, and then for the first time manifested his dissatisfaction. Alleman v. Manning, 44 Mo.App. 10. (7) The sale of relator, whether to the executor or to Juliet A. Jones, is not void per se, and the facts, if any, which might induce a court of equity to set aside such sale would not be investigated in a collateral proceeding. The assignment should first have been set aside in a proper forum. The demurrer was well taken. Grayson v. Weddle, 63 Mo. 523; Mitchell v. McMullen, 59 Mo. 252. (8) A sale by an executor to himself is not void per se, and if voidable it can only be taken advantage of by persons interested in the estate, such as creditors and heirs. Grayson v. Weddle, 63 Mo. 523; Mitchell v. McMullen, 59 Mo. 252; Frazier's Ex'rs v. Lee, 42 Ala. 25; Wayland v. Crouk, 79 Va. 602; Staples v. Staples, 2 Gratt. 225; Denslop v. Mitchell, 11 Ohio 117; Litchfield v. Co., 15 Pick. 23; Harrington v. Prim, 5 Pick. 519; McKay v. Young, 4 H. & M. (Va.) 430; Huger v. Huger, 9 Rich. Eq. 217; Clark v. Drake, 63 Mo. 354; Dillinger v. Kelley, 84 Mo. 561. (9) If the administrator has an interest in the estate the rule is well established that he may purchase at his own sale, provided the sale be fairly conducted. Frazier's Ex'rs v. Lee, 42 Ala. 25; Dillinger v. Kelley, 84 Mo. 567. (10) The rule prohibiting an executor from purchasing, or acting as agent in the purchase of, decedent's property has no reference to sales other than probate sales. Bryant v. Jackson, 99 Mo. 535; Dillinger v. Kelley, 84 Mo. 561; Grayson v. Weddle, 63 Mo. 522. (11) The trustee may purchase from the cestui que trust, provided there is a distinct and clear contract, ascertained to be such after a jealous and scrupulous examination of all the circumstances, that the cestui que trust intended the trustees should buy and there is no fraud, no concealment, no advantage taken by the trustee of information acquired by him in the character of trustee. Sallee v. Chandler, 26 Mo. 124; Levin on Trusts, 379; Adams' Equity, secs. 60, 184; Grayson v. Weddle, 63 Mo. 539; Darling v. Potts, 118 Mo. 519; Kirchner v. Kirchner, 113 Mo. 290. (12) The rule which imposes incapacity upon the trustee to deal with cestui que trust applies only where the trustee attempts to purchase from, or sell to, himself. There is no positive rule that he can not deal with his cestui que trust. Adams' Equity, secs. 60, 183, 184; Sallee v. Chandler, 26 Mo. 124; Dillinger v. Kelley, 84 Mo. 569. (13) Inadequacy of price will go a great way in the mind of the court to constitute such fraud, though the purchase will not necessarily be set aside on that account alone. Sallee v. Chandler, 26 Mo. 124; Hill on Trusts, 785, 786. (14) When it is said that a trustee for sale may not purchase the trust property, the meaning must be understood to be that the trustee may not purchase from himself; for there is no rule that a trustee may not purchase from his cestui que trust. Levin on Trusts, 379; Sallee v. Chandler, 26 Mo. 124; Dillinger v. Kelley, 84 Mo. 561. (15) The rule that the trustee for sale can not purchase does not extend to the case of other trustees, who merely buy from their cestui que trust, though in this case they can support the transaction only by proving strict fairness and the disclosure of all such information as they have acquired in their character of trustee. Godefroi's Law of Trusts, 335; Cole v. Frecothrick, 9 Ves. 234; Luff v. Lord, 34 Bea. 220; 11 L. T. N. S. 695; Tate v. Williamson, 2 Ch. 55; Lewin's Law of Trusts [9 Ed.], 537, 794.

Robinson, J. Barclay, J., and Macfarlane, J., concur in the result. Brace, C. J., dissents.

OPINION

Robinson, J.

This is an action upon the official bond of J. L. Jones, as executor of Julia A. Dearing, deceased, and his sureties therein, for $ 397.46, the alleged distributive share of the relator P. H. Jones in the estate as legatee under the will of said deceased, as found on final settlement of said executor to be due and owing to relator, and ordered by the probate judge to be paid him.

The petition is in the usual form, charging the execution and delivery of the bond, its condition, the executorship of defendant, and that by the will P. H. Jones, the plaintiff, was entitled to one fifteenth of the estate of Julia A. Dearing, deceased, the final settlement of defendant, and the order of the probate court to pay relator $ 397.47, as his distributive share, and prays for judgment of the penalty of the bond, and that execution issue for the sum of $ 397.47 with interest.

The answer was that the relator had, prior to the settlement of the executor and the order of distribution by the probate court, sold his interest in said estate to Juliet A. Jones, and had, for value received, in writing duly executed, assigned, and transferred through her agent J. L. Jones, his interest in said estate to said Juliet A. Jones; and that the executor having due notice thereof, paid the sum of $ 397.46, so found as the interest of said relator in said estate, to Juliet A. Jones and took her receipt therefor together with the other legatees and distributees of said estate and deposited the same with the papers of said estate, with the filing of the probate court duly indorsed thereon, and that having paid same to relator's assignee nothing is now due him from said estate.

Relator then filed his reply admitting "that there was a certain transaction between him and defendant J. L. Jones, prior to said final settlement, as is alleged in the answer herein, and that the assignment which defendants claim was made was the result of the transaction, but plaintiff alleges that after said transaction between him and defendant J. L. Jones, and on the final settlement of said estate by the probate court of Montgomery county, the said distributive share of the relator, as is alleged in the petition herein, was found by the probate court to be due and owing to relator and was thereupon ordered by the probate court to be paid to relator and asks judgment in accordance with the prayer of the petition herein.

"And, further replying, says that the assignment was made to J. L. Jones in his own right while he was acting as executor, and not as agent of Juliet A. Jones, and that same was obtained from relator by false and fraudulent representations, and false and fraudulent concealment concerning the condition and value of the assets of said estate, and that same was unknown to relator, and that relator relied on the statement and representation of defendant J. L. Jones on the making of said assignment, and prays the court to grant him such relief as he would be entitled to had said assignment not been made, and for such other relief as may be just and proper."

Jury being waived the case was tried by the court, resulting in a finding and judgment for defendant.

There was but little conflict in the testimony at the trial of the case, and we will give the statement of the facts, so far as they are not admitted in the pleadings, as same is found in the opinion of the St. Louis court of appeals, when the case was in that court for determination.

Relator on the day and place therein named executed this assignment:

"Know all men by these presents, that I, Patrick H. Jones, of the city of Galveston, in the state of Texas, have this day, in consideration of the sum of two hundred dollars ($ 200) to him paid by J. L. Jones, of Montgomery county, Missouri bargained, sold, assigned and transferred, and by these presents do bargain, sell, transfer and assign unto the said J. L. Jones all my right, title, interest and claim in and to the estate of my aunt, the late Julia A. Dearing of Jonesburg, Montgomery county, Missouri, which said estate is now in process of administration in the probate court of Montgomery county, Mo. The said interest hereby and herein bargained, sold and transferred to said J. L. Jones, to include all my right, title, claim and interest in and to all the property of any kind and...