Toler v. Judd

• Decision Date: 02 December 1914
• Citation: 171 S.W. 339,262 Mo. 344
• Parties: W. L. TOLER and MARY L. TOLER, Appellants, v. JAMES A. JUDD et al
• Court: Missouri Supreme Court

171 S.W. 339

262 Mo. 344

W. L. TOLER and MARY L. TOLER, Appellants, v. JAMES A. JUDD et al

Supreme Court of Missouri, First Division

December 2, 1914

Appeal from Macon Circuit Court. -- Hon. Nat. M. Shelton, Judge.

Affirmed.

Weatherby & Frank and Higbee & Mills for appellants.

The court erred in sustaining the demurrer to plaintiffs' petition. It states a good cause of action in equity. Plaintiffs are the equitable owners of the stock of merchandise, subject to the widow's rights therein, and on her neglect or refusal to sue, or join in this action, are entitled to the relief prayed in the petition; and upon the annulment of the exchange are entitled to have the value of the stock of merchandise paid over to the administratrix as assets of the estate. Ford v. Hennessy, 70 Mo. 593; Story's Eq. Plead., sec. 170; Richardson v Cole, 160 Mo. 372; Trotter v. Mutual Reserve Assn., 70 N.W. 843; Bem v. Shoemaker, 74 N.W 239; Buchanan v. Buchanan, 22 L.R.A. (N. S.) 461; Samuel v. Marshall, 3 Leigh, 567; Padgett v. Smith 206 Mo. 309.

E. C. Lockwood and J. W. Peery for respondents.

(1) The legal title to the personal estate of a decedent vests in his administrator. The heir can acquire no title thereto except through an administration in the probate court, and therefore has no right to maintain an action with respect to the personal estate. Leaky v. Maupin, 10 Mo. 368; State to use v. Fulton, 35 Mo. 323; Smith v. Denny, 37 Mo. 20; Vastine v. Dinan, 42 Mo. 269; State ex rel. v. Moore, 18 Mo.App. 406; Becraft v. Lewis, 41 Mo.App. 546; Hellman v. Wellenkamp, 71 Mo. 407; Pullis v. Pullis, 178 Mo. 683; Brueggeman v. Jurgenson, 24 Mo. 87; Griesel v. Jones, 123 Mo.App. 45; Orchard v. Store Co., 225 Mo. 414; Hillman v. Schwenk, 68 Mich. 297; Bourget v. Monroe, 58 Mich. 566; Hanenkamp's Admr. v. Borgmier, 32 Mo. 569. (2) If an administrator, in a proper case refuses to bring an action for the recovery of the personal property belonging to the estate, the remedy of the heir is either to sue him upon his bond, or to institute proceedings in the probate court to have him removed and another appointed in his stead. R. S. 1909, secs. 34, 50; Hellman v. Wellenkamp, 71 Mo. 407; Pullis v. Pullis, 178 Mo. 683; Hillman v. Schwenk, 68 Mich. 300; Flynn v. Flynn, 183 Mass. 365; Pritchard v. Norwood, 155 Mass. 539; Putney v. Fletcher, 148 Mass. 247; Scruggs v. Scruggs, 105 F. 28; Moore v. Fidelity Co., 138 F. 1; 2 Woerner's Am. L. Adm. (2 Ed.), p. 674, sec. 322; Butler v. Roer, 163 Mo.App. 287; Morrow v. Morrow, 113 Mo.App. 444.

OPINION

WOODSON, P. J.

This is a bill in equity, instituted by the plaintiffs against the defendants in the circuit court of Macon county, to set aside and cancel a certain contract made and entered into by and between one E. F. Toler and James A. Judd, by which the former traded a certain stock of goods at McFall, Missouri, to the latter for certain real estate, and other considerations, located in Macon county.

There was a demurrer filed to the bill, which was by the circuit court sustained, and the plaintiffs declining to plead further judgment was duly rendered against them. In due time and in proper form the plaintiffs appealed to this court.

This state of the record requires this court to pass upon the sufficiency of the bill, and the demurrer filed thereto. The bill is as follows:

"Plaintiffs for their cause of action state that on and prior to January 31, 1910, one E. F. Toler was the owner of a general stock of merchandise of the value of $ 16,500, then located and situated in a certain store building occupied by him in the town of McFall, in Gentry county, Missouri; that the defendant Judd was then the owner in fee of certain lands located in Macon county, Missouri, to-wit:

"Fifteen acres off the south end of the west half of the northwest quarter; and the east half of the northwest quarter, and the west half of the northeast quarter, and the southeast quarter of the northeast quarter, and the north half of the southeast quarter, all in section 6, township 57, range 17, containing 295 acres more or less, subject to certain deeds of trust aggregating about $ 4000 principal; that said lands were then not worth to exceed $ 25 per acre, or $ 7375 in the aggregate, and the said Judd's equity of redemption therein was not worth to exceed $ 3375; that the said E. F Toler was then, and for a long time prior thereto had been, broken down in health, physically and mentally weak, of unsound mind, incapable of transacting business, easily susceptible to persuasion, influence and suggestions, and in constant fear and dread of death, and suffering from a mortal illness, as the defendants and each of them then well knew.

"Plaintiffs further state that the defendant, James A. Judd, well knowing the said condition of the said E. F. Toler physically and mentally, with the intention, design and purpose to fraudulently cheat and defraud the said E. F. Toler out of his said stock of merchandise, did falsely and fraudulently represent to the said E. F. Toler that the said lands of the said James A. Judd were of the value of $ 60 per acre, and with the fraudulent purpose aforesaid, proposed to the said E. F. Toler that he would sell and exchange his equity in said lands in Macon county, Missouri, at the valuation of $ 13,700, taking the said Toler's stock of goods in exchange therefor at the valuation of $ 16,500, and would settle the difference in favor of said Toler of $ 2800 in certain notes that said Judd then held on persons living on or in the neighborhood of said lands in Macon county, Missouri, which said Judd falsely and fraudulently represented to said Toler were good, solvent and collectible notes.

"Plaintiffs further state that said E. F. Toler was not acquainted with the said lands of the said Judd in Macon county, Missouri, and was wholly ignorant of the value of said land, and was wholly ignorant of whether the said notes for the said sum of $ 2800 were solvent and collectible, all of which the defendant Judd then well knew, and the said Judd importuned and constrained the said E. F. Toler to make said exchange of said stock of goods for the said lands in Macon county, Missouri, and the said $ 2800 in notes, the said E. F. Toler being wholly unable to resist the importunities, persuasions and constraint of the said Judd for that purpose, as the said Judd then well knew, and said Toler wholly relying upon the said representations of the said Judd, and being unable to resist his importunities and persuasions, was induced thereby to sell and deliver to the said Judd his said stock of goods in exchange for said lands and said notes for $ 2800, and did on January 31, 1910, so wholly relying upon said representations of the said Judd, and being so fraudulently influenced by the said Judd, as aforesaid, sell and deliver to him his said stock of goods, and received in exchange therefor a deed from the said James A. Judd and his wife conveying said lands to him, the said E. F. Toler, and Ida E. Toler, the defendant, his wife, subject to four certain deeds of trust upon said lands to secure the payment of four several notes therein described, aggregating the sum of $ 4000 principal, the said Judd then assigning and transferring without recourse to the said E. F. Toler and Ida E. Toler, his wife, said notes aggregating the said sum of $ 2800; and plaintiffs aver that the said representations of the said James A. Judd were wholly false; that said lands were not worth to exceed $ 25 per acre, and the equity of redemption of the said James A. Judd therein was not worth to exceed $ 3375, and the said notes for the sum of $ 2800 were not collectible, and the makers thereof were insolvent.

"Plaintiffs further state that they do not know and are unable to state the names of the makers of said notes.

"Plaintiffs further state that immediately upon effecting said exchange, the defendant James A. Judd, took possession of the said entire stock of goods so owned by said E. F. Toler, and removed the same from said town of McFall and has converted the same to his own use.

"Plaintiffs further state that the said E. F. Toler, of the said illness of which he was then suffering, as aforesaid, died on or about March 1, 1910, intestate and without issue, being at the time of his death a resident of Gentry county, Missouri, and left surviving him his widow, the defendant Ida E. Toler, and the plaintiff W. L. Toler, his brother, and Mary J., his mother, his only surviving heirs; that the father of E. F. Toler had theretofore died, and that said E. F. Toler had no sisters or brothers, or their descendants surviving him, other than his brother W. L. Toler.

"Plaintiffs further state that immediately upon the death of said E. F. Toler, the defendant Ida E. Toler, took out letters of administration and was appointed administratrix of the estate of E. F. Toler, by the probate court of Gentry county, Missouri, and duly qualified, and has ever since been, and now is acting as such administratrix; that plaintiffs have requested the said Ida E. Toler to join with them in this action; and have been unable to obtain her consent, and she has refused to join with them in this action, either individually or as administratrix of the estate of E. F. Toler, deceased, and they have for that reason made her a co-defendant in this action, individually and as administratrix of the estate of said E. F. Toler, deceased.

"Plaintiffs further state that they are willing, and now offer, to convey to the said James A. Judd any interest that might or would pass to them in the lands above described by reason of said conveyance of the said James A. Judd and his wife to the said E. F. Toler and Ida E. Toler, and are willing to transfer to said James A. Judd any...