Wimbush v. Danford

• Decision Date: 19 December 1921
• Docket Number: No. 22076.,22076.
• Citation: 238 S.W. 460,292 Mo. 588
• Parties: WIMBUSH et al. v. DANFORD at al.
• Court: Missouri Supreme Court

238 S.W. 460

292 Mo. 588

WIMBUSH et al. v. DANFORD at al.

No. 22076.

Supreme Court of Missouri, Division No. 1.

December 19, 1921.

Motion for Rehearing Denied March 14, 1922.

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

Action by Frank A. Wimbush and others against Fannie Danford and others. From judgment for plaintiffs, defendant named and Nelson R. Wimbush appeal. Reversed and remanded, with directions.

Geo. W. Lubke and Geo. W. Lubke, Jr., both of St. Louis, for appellants.

F. W. Imsieper, Geo. F. Osiek, and Geo. O. Durham, all of St. Louis, for respondents.

ELDER, S.

This is an action by which plaintiffs seek to establish a resulting trust in favor of John Wimbush, their father, who died May 28, 1910, in 10 parcels of real estate situated in the city of St. Louis and in certain notes, accounts, books, and money alleged to have been the property of said Wimbush at the time of his death. Plaintiffs are the children of John Wimbush by Julia Wimbush, his first wife, and defendants are the children of said Wimbush by Jane M. Wimbush, his second wife.

The amended petition, comprising 59 pages of the record, is unduly prolix. It sets forth the relationship of the parties and then in a desultory manner alleges substantially that John Wimbush died possessed of an estate of the reasonable value of $40,000, consisting of real, personal, and mixed property situated in the city of St. Louis and in the state of Illinois, all of which is described in detail; that said John Wimbush left a last will and testament, dated October 5, 1899, which was admitted to probate in the probate court of the city of St. Louis on June 29, 1910, the same being as follows:

"I, John Wimbush, of the city of St. Louis and state of Missouri, and being of sound mind and disposing memory do make, declare and publish this my last will and testament as follows:

"1. To my wife, Jane M. Wimbush, I give, devise, and bequeath all my property, estate and effects, real, personal or mixed, of whatsoever kind, character or description and wheresoever situated.

"2. I appoint my said wife, Jane M. Wimbush, my sole executrix herein and direct that as such she give no bond.

"3. I direct as such trustee the said wife, Jane M. Wimbush, while not remarried give no bond for said trust estate of said minors born of marriage.

"4. In invest my said executrix, Jane M. Wimbush, as such and without bond with full and absolute power, discretion, capacity, authority and power to sell, grant, convey end deliver in such manner, on such terms and at such prices as said executrix may elect, all or any part of my estate, real or personal or mixed, and to make perfect record title thereto and create perfect ownership thereof, all absolutely and forever the same as I could do if living, and to collect and reinvest the proceeds thereof or any insurance thereon for the benefit of herself and said children named hereafter: Frank A. Wimbush, John J. Wimbush, Maude K. Linberg, Thomas Wimbush, being children of my former wife, Julia A. Wimbush, who died July 29, A. D. 1886; also children of my present wife and executrix of this my will (Jane M. Wimbush), Fanny J. Wimbush and Nelson R. Wimbush. With the exception of an allowance of two hundred dollars ($200.00) which I bequeathed to each of my children named hereafter to be paid within two years after my death by my said wife and executrix, Jane M. Wimbush: Frank A. Wimbush, John J. Wimbush, Maude K. Linberg, Thomas Wimbush, Fanny J. Wimbush and Nelson R. Wimbush. The balance of my estate to be handled as above stated by my wife and executrix, Jane M. Wimbush.

"I hereby nominate my said wife, Jane M. Wimbush, the executrix of this my last will and testament, and I hereby request that she be not required to give bond for the faithful discharge of the trust hereby reposed in her as such executrix."

The petition then alleges that Jane M. Wimbush duly qualified in the probate court of the city of St. Louis as executrix and trustee of the said will; that the same was duly admitted to probate in the circuit court of Marion county, Ill., in chancery sitting, and was construed by said court; that Jane M. Wimbush duly qualified as executrix and trustee of the Illinois trust estate, administered thereon, paid to plaintiffs the legacies due them, and rendered her final accounting to the aforesaid circuit court of Marion county, which accounting was approved; that by the terms of said will plaintiffs and defendants and Jane M. Wimbush each became "vested in fee simple with a one-seventh interest in the rents and profits and in the proceeds which might be derived from any sale by said trustee of all the property located in the states of Missouri and Illinois so bequeathed in trust to said Jane M. Wimbush, subject to the payment of $200 to each of the plaintiffs and defendants Wimbush herein"; that said Jane M. Wimbush "took possession of said Missouri properties and effects and collected the rents and profits thereof," and, on December 30, 1912, filed her final settlement as executrix "without having rendered any accounting of the rents and profits which had come to her out of said Missouri trust properties in the course of her administration, and without having made any report of the proceedings had in said Illinois court of equity, whereby said will of John Wimbush was construed and said Illinois trust estate distributed and said Illinois trust determined"; that on March 14, 1916, Jane M. Wimbush died intestate, "leaving undischarged her duties as trustee so far as plaintiffs' four-sevenths interest in said Missouri trust estate and properties were concerned," and seized of the possessory right and title as trustee of said properties; that by the death of said Jane M. Wimbush the title to said Missouri trust estate "became vested and is now vested in this court as a court of general equity, with jurisdiction to administer on said estate and to dispose thereof and to determine said trust in accordance with said last will as construed and adjudicated by the circuit court of Marion county, Ill."

The petition then proceeds to set forth in somewhat redundant detail the pleadings and proceedings in the circuit court of Marion county, Ill., for the probate and construction of the will of John Wimbush, and in the subsequent appeal taken from the judgment of said circuit court to the Supreme Court of Illinois. Wimbush v. Wimbush, 253 Ill. 407, 97 N. E. 701.

Further proceeding, it alleges that the decree of the circuit court of `Marion county aforesaid, upon appeal to the Supreme Court of Illinois, was affirmed; that thereafter plaintiffs filed a bill of complaint in the circuit court of Marion county, Ill., praying for the termination of the Illinois trust estate and the distribution of the properties thereof; that, pursuant to agreement of the parties, the court, in said action, rendered a decree divesting Jane M. Wimbush of her title as trustee, adjudging that "the seven testamentary legatees were seized in fee simple as tenants in common of said Illinois trust estate properties and effects," and decreeing that plaintiffs and defendants herein and Jane M. Wimbush were each "seized and possessed in fee simple of an undivided one-seventh interest in said Illinois properties, real and personal"; that pursuant to order of the court commissioners were appointed and the said properties partitioned and divided among the parties in accordance with their interests as found by the court.

The petition further alleges that at the time of his death John Wimbush "was the sole and absolute owner in possession and control, and maintained a certain extensive interstate real estate, trading, and general contracting business, of which said Missouri and Illinois properties constituted the ambulatory trading assets, and which said business he had established about the year 1885, with valuable real and personal property of which he was seized and possessed in fee simple as trading capital, during the life of his first wife, Julia A. Wimbush, who died on the 29th day of July, 1886, in said city of St. Louis, and which said trading capital he had increased in value and holdings at the time when he made his said will in the year 1899, by innumerable trades and purchases of real and personal property, and by innumerable building and improvement transactions in the state of Missouri"; that from and after about October, 1891, the said John Wimbush made the mistake of "indiscriminately and interchangeably" causing to be placed in the muniments of title to the properties acquired by him any one of the four several names of "John Wimbush," "John or Jane M. Wimbush," "John Wimbush and Jane M. Wimbush," or "John Wimbush and Jane M. Wimbush, his wife," and that, had he not been "misled by ignorance of law touching the legal effect and result of such error upon the several Missouri and Illinois trusts, each one of which he intended to be executed by said Jane M. Wimbush, his second wife," he would not have committed said mistake.

The petition also alleges that pending the attainment by defendant Nelson R. Wimbush, son of Jane M. Wimbush, of his legal majority, it was agreed between plaintiffs and said Jane M. Wimbush that, in consideration of plaintiffs allowing Jane M. Wimbush and her children to continue unmolested in the possession, use, and enjoyment of the Missouri trust estate during the remainder of her natural life, she, the said Jane M. Wimbush, was to make a will by which she would divest herself of said property and devise the same to plaintiffs and defendants in equal shares, one-sixth to each; that, relying upon such agreement, plaintiffs permitted said Jane M. Wimbush, until the time of her death, to remain in possession of said property in Missouri, without any accounting to plaintiffs for their four-sevenths interest in the rents and profits thereof; that on March 12, 1916, two days before the death of said Jane M. Wimbush, plai...