Waddingham's Ex'rs v. Loker

• Decision Date: 31 March 1869
• Citation: Waddingham's Ex'rs v. Loker, 44 Mo. 132 (Mo. 1869)
• Parties: WADDINGHAM'S EXECUTORS, Appellants, v. LOKER, DEAN et al., Respondents.
• Court: Missouri Supreme Court

44 Mo. 132

WADDINGHAM'S EXECUTORS, Appellants,

v.LOKER, DEAN et al., Respondents.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

Cline, Jamison & Day, for appellants.

Thomas T. Gantt, for respondents.

WAGNER, Judge, delivered the opinion of the court.

Plaintiffs filed their petition in the Circuit Court, the general object and purpose of which was to subject certain stocks held by the widow and daughters of George W. Jencks to the payment of debts owing by him.The petition set out and described a judgment rendered in favor of Waddingham against Jencks while both were living, a revival of that judgment, partial payments, and the death of both parties; and proceeded to state, as ground of relief and for equitable interposition, that the stock in question had been originally purchased with the money and means of Jencks, and given to his wife and daughter, in fraud of the rights of his creditors.

The answer denied that the stock was in any manner, or in any sense or degree, purchased or acquired by the means or credit of Jencks.It sets forth the whole history of the purchase of the stock and the circumstances attending it.It states that when the Transfer Company was formed, the stock of which is in controversy in this suit, Jencks was an employee of the Ohio and Mississippi Railroad Company; that he suggested to the defendant Loker, who was an old and intimate friend, that the stock of the company afforded an excellent opportunity for good investment, and that it could not fail to be profitable; that Jencks urged Loker to subscribe on his own account to the stock, and also urged him to take a number of shares for the benefit of the wife and daughters of Jencks, assuring him that in his judgment the only money he would have to pay on account of the subscription for the wife and daughters of Jencks would be the first installment, that the dividends would speedily pay off the residue of the subscription and make the stock good, and refund to Loker the money he was requested to advance.The proposition was to make the last subscription in the name of “Geo. H. Loker, trustee;” to hold the stock in his own name, as security, until he was fully reimbursed, and then to transfer it to the wife and daughters of Jencks.Loker was a banker and possessed of wealth, and was about using his means for the improvement of his real estate, and he regarded Jencks' proposals as visionary, and refused to accede to them.Jencks was wholly insolvent, and supported his family on a salary which he received from the railroad company.At last, owing to the importunity of Jencks, and his evident distress at the penniless condition in which his family would be placed in the event of his death, Loker, on account of personal friendship, was induced to take the risk of making a subscription in his own name, as trustee, and to advance the cash payment; if the adventure was unsuccessful, to sell with as little loss as possible; and if Jencks' anticipations were realized, then, after paying himself and ten per cent. interest, to transfer the stock to Mrs. Jencks and her daughters.He subscribed accordingly for fifty shares, nominally valued at $5,000, and advanced in cash, as a first payment, $2,000.The stock proved extraordinarily remunerative.The dividends first canceled Loker's stock note for the deferred payment, then reimbursed him his cash installment and interest, and continued so profitable that the company expanded the stock, and what was originally fifty shares grew into five hundred, and still continued to pay handsome dividends.In process of time the two daughters of Jencks were married, and Loker...