Woolley v. Dorl

• Decision Date: 04 December 1933
• Docket Number: No. 17917.,17917.
• Citation: 68 S.W.2d 869
• Court: Missouri Court of Appeals
• Parties: WOOLLEY et al. v. DORL et al.

68 S.W.2d 869

WOOLLEY et al. v. DORL et al.

No. 17917.

Kansas City Court of Appeals. Missouri.

December 4, 1933.

Rehearing Denied February 19, 1934.

Appeal from Circuit Court, Miller County; W. S. Stilwell, Judge.

"Not to be published in State Reports."

Suit by Charles O. Woolley and others against Gottlob Dorl and another. Judgment for plaintiffs, and defendants appeal.

Reversed and remanded.

Kay & Starling, of Eldon, for appellants.

Embry & Embry, of California, Mo., for respondents.

BLAND, Judge.

This is an action for an accounting, tried as an equity case, resulting in a judgment in favor of the plaintiffs in the sum of $1,485.22. Defendants have appealed.

The facts show that plaintiffs are the grandchildren of one Gottlob Dorl, who died testate in Miller County in 1902. By the terms of his will the residue of his estate, after the payment of some small bequests and debt, was left to his widow, Wilhemina Dorl, "to hold and enjoy absolutely in fee simple to sell or dispose of at her pleasure for her benefit and comfort during her lifetime and at her death whatever part of said property remains to all my children share and share alike named as follows: Mrs. Minnie Woolley (Dorl), Emma Dorl, Elizabeth Dorl, Gottlob Dorl, Bertha Dorl, Willhelm Charles Dorl, and Ida Dorl, to have and to hold the same to them and their heirs executors administrators and assigns forever." Wilhemina Dorl was appointed executrix of the estate in compliance with a clause in the will that she should serve as such. She received from the estate the sum of $5,234.40, in addition to real estate which testator owned at the time of his death. There was some evidence that at one time the widow loaned a party some money on a farm and, subsequently, took the farm for the debt, and later sold it.

After the death of her husband the widow and two unmarried children continued to live on the home place, consisting of 160 acres, for a number of years, using the machinery, stock and personal property left by testator, as well as the real estate. Thereupon, she sold the home place and at that time gave to each of the seven children the sum of $500.00, which defendants claim was the proceeds from the sale of the farm, but the record is not clear upon this point. At this time, Minnie Woolley, the mother of the plaintiffs, received $500.00. At another time the widow gave three of her children the sum of $100.00, each. Whether the mother of plaintiffs was one of these three is not plain. There is no evidence from what source these gifts came, except the $500.00 ones.

Immediately upon the death of her husband the widow began to receive a pension of $30.00 per month. She continued to receive this pension until a year or two before her death, in 1929. During the latter part of her lifetime she received a pension of $40.00 per month.

There is evidence that the widow had no property at the time of her husband's death. When she died her estate was appraised at $10,369.55, consisting chiefly of notes and cash. There is no evidence from what source this money came, that is to say, whether it was accumulated entirely from the widow's efforts or from property left by her husband. The evidence is meager as to the widow's business ability. However, it does show that she was frugal and modest in her needs. There was testimony that from 1920 until the time of her death she had apparently but one bank account. No one knew what money she loaned or what money the notes held by her at her death represented or what money the bank account represented, except that her banker testified that she deposited her pension money in the bank as well as money from interest.

Minnie Woolley, mother of the plaintiffs, died in 1918. In 1923, the widow gave to Ed Woolley, surviving husband of Minnie Woolley and father of plaintiffs, a note in the sum of $1,500.00, which he owed her. Defendants, two of her sons, are the duly qualified and acting executors of the widow's estate. Under the terms of her will plaintiffs were bequeathed the sum of $1.00 each. The residue of her estate was given to her surviving children.

It was plaintiffs' theory in the court below, which theory was adopted by the court, that the executors of the estate of Wilhemina Dorl were trustees for these plaintiffs for their part of the unused portion of the estate of Gottlob Dorl and, as such, they were required to account to these plaintiffs and, although there was no evidence as to what assets remained of the estate of Gottlob Dorl coming into the hands of these defendants, they have co-mingled those assets with those belonging to Wilhemina Dorl...