"This is a suit in equity between the children of Hannah Sabrina Wenzel, deceased, in which plaintiffs seek to set aside the purchase at a trustee's sale by the defendant Belle D. O'Neal of lot 67, Ozark Land Company's addition to Springfield, and to have said lot, and another lot, to wit, lot 68, in said addition, partitioned amongst all of them, in equal shares, as provided by their mother's will. Mrs. Wenzel died June 19, 1914, at the age of 88 years. These two pieces of property constituted her entire estate. She had no personal property. She left no debts, to speak of, except a duebill for $582.20 to her daughter, Mrs. O'Neal, for borrowed money, and a note to Mrs. Barton for $750, secured by a deed of trust on said lot 67. Said lot 67 had a one-story cottage upon it, and was worth $2,500 to $3,000. Said lot 68 had a two-story dwelling house upon it, and was worth about $4,500. She left surviving her six children, the defendants, Emma J. Fitzwater (Buchanan), with whom she resided in Springfield, and Belle D. O'Neal, who then lived in Oklahoma, and the plaintiffs, Clara A. White, of Estancia, N. M., Sarah E. Rohlf, of Jacksonville, Ill., George E. Wenzel, of Chicago, and Ambrose W. Wenzel, who lived in St
Louis. All attended the funeral except Mrs. White and Ambrose. W. Wenzel. After the funeral the will was procured, which made Belle D. O'Neal executrix without bond, and divided Mrs. Wenzel's property equally amongst her six children. The condition of her estate was then discussed, and the existence of the $750 deed of trust and the $582.20 claim of Mrs. O'Neal against her mother was disclosed by Mrs. Fitzwater and Mrs. O'Neal to their brother George and sister Sarah, who made no objection thereto. The former testify they also told George and Sarah that the $750 deed of trust would come due in November, 1914, and that Prof. Calland had notified their mother before her death that it would have to be paid at that time; that George and Mrs. Rohlf promised to do their part toward taking care of the incumbrance, and to notify Ambrose and Mrs. White of it, so they might co-operate. This, however, is denied by them, and, on the other hand, they say that Mrs. O'Neal informed them that the note could run a year or two. Prof. Calland, of Drury College, was the trustee in the deed of trust, and had made the loan to Mrs. Wenzel for Mrs. Barton, who resided at Berkeley, Cal. He had been her general agent in handling her funds for many years, and was, it is fair to assume from the testimony, vested with authority to collect and foreclose deed of trust securing her notes, without special instructions from her. He also had been the agent of Mrs. Wenzel in her lifetime, and as such was in charge of her two pieces of property, which he rented, and from which he collected the rents. Mrs. O'Neal named as executrix, living in Oklahoma, was disqualified, and Emma J. Fitzwater was, in June, 1914, duly appointed executrix in her stead. By mutual agreement between the heirs present at the funeral, and consent and advice of the probate judge, Mrs. Fitzwater was to collect the rents without any order of the probate court, but account for them as executrix. Prof. Calland continued to have charge of the property as before, and collected the rents and paid them over to Mrs. Fitzwater as long as she was executrix, and to Mrs. O'Neal, when she was appointed executrix, which was in April, 1915, when the letters of Mrs. Fitzwater were removed by reason of her marriage to Mr. Buchanan. Mrs. O'Neal had moved to Springfield from Oklahoma at the time of her appointment. Nothing having been done towards meeting the $750 deed of trust, for the purpose of raising money to pay it off, as well as to pay the claim of Mrs. O'Neal, Mrs. Fitzwater, who was then still executrix, on October 29, 1914, executed two notes, in blank as to the payee, one for $582.20, and one for $800, and also executed a deed of trust to secure these notes on said lot 68 instead of lot 67, because the former was the more valuable and the money could more easily be obtained on it as security than upon said lot 67. She sent these notes and deed of trust to her brother George in a letter, which was as follows:
"`Springfield, Mo. 10/29/14
"`The note for $750.00 secured by deed of trust against home place is now due with interest and the holder wants her money, hence it becomes necessary to make a new loan. Also as you know sister Belle paid for mother the sum of $582.20 for rebuilding the house in April, 1907. Mother lacked this amount to pay for the improvements and she gave her a duebill for that amount, stating for what purpose it was given, a copy of which is herewith inclosed, and as she can either file this as a claim with interest from 1907 against the estate and have the home sold under the hammer or payment to her for the face value of the duebill will be acceptable to her if paid now.
"`We have added this amount with a probable $50.00 for expense for securing the loan to the $750.00, making a total of $1,382.30. For whatever amount less than the $50.00 for expenses we can get the loan it will be credited on the $750.00 note.
"`As the time under the laws of Missouri for filing Belle's claim is limited to one year from date of administration, this loan must necessarily be accepted or rejected at once.
"`[Signed] From your loving sister, E. J. Fitzwater, administratrix, Springfield, Mo.'
"George Wenzel replied to this letter, saying that the writer refuses to sign the notes and deed of trust above referred to, and that, as for the defendant Belle C. O'Neal having a claim against the estate, the writer had a claim also, as he stated, for money he had sent to his father and mother when they first came to Springfield in the early 80's, which, he said, would amount to around $1,000, and that, if the defendant Belle was going to put in her duebill for $582.20 against the estate, he was going to put in his claim against the estate. In his testimony George Wenzel says he visited Mrs. Rohlf, Christmas, 1914, and showed her Mrs. Fitzwater's letter of October 29, 1914. He says: `I told her I wouldn't sign any blank deed of trust and notes.' He understood from the letter that the deed of trust sent him to sign was to take up the $750 deed of trust. He also sent Mrs. Rohlf a copy of his letter of May, 1915, to Mrs. Fitzwater above set forth. He refused to sign the notes and deed of trust sent him, because they did not say who they were to be paid to. He consulted a lawyer about them as soon as he received them. He wrote also to his sister Mrs. White and his brother Ambrose, and sent them a copy of Mrs. Fitzwater's letter of October 29, 1914, and of his letter of January, 1915, in reply. He also visited Ambrose in St. Louis in February, 1915, to see him about the blank notes and deed of trust and Mrs. Fitzwater's letter of October 29, 1914. He also sent Mrs. White, Mrs. Rohlf, and Ambrose Wenzel copies of the blank notes and deed of trust.
"Ambrose Wenzel testified that he refused to sign the new papers, because they were in blank, and because they were on lot 68, and the mortgage was on lot 67.
"No notice of the trustee's sale, which occurred June 3, 1915, was sent to plaintiffs by any one, and plaintiffs had no knowledge of the sale until after it was made. Previous to this, on April 24, 1915, the probate court of Greene county allowed Mrs. O'Neal's claim against the estate for $863, being principal and interest, presumably, for a number of years.
"In the meantime, neither of the plaintiffs, up to the time of the sale, made any effort to raise money to pay off the deed of trust, or had any further communication with either of
their sisters at Springfield, after George Wenzel's letter of January, 1915, in which he refused to execute the documents sent to him and protested against the claim of his sister Belle.
"Prof. Calland had notified Mrs. O'Neal several times that the note would have to be paid when due, and after the statutory period of nine months from the death of Mrs. Wenzel had expired he wrote Mrs. O'Neal two letters, one dated April 16, 1915, stating that he would advertise the foreclosure on May 2d, unless the note was...
