201 Mo. App. 697 | Mo. Ct. App. | 1919
— This is a suit in equity to establish a claim for $3500 and interest against the es
Herman J. Krembs, Sr., a real estate agent, had been acting as such for plaintiff, Mrs. Bertha Beck, and in the course of his dealings with her, about November 3, 1914, had in his hands $1648 of money, which he had collected for her on an outstanding deed of trust, that including principal and interest. At the same time he also had in his hands of her money $2000, which had been secured on real estate. About November 3, 1914, Krembs offered Mrs. Beck a new investment in the form of a building loan, purporting to be made to one Corman, for $3500, secured by deed of trust upon certain property. Krembs gave Mrs. Beck the note for $3500, secured by this deed of trust, the note payable to her, paid her $3 in cash and gave her a receipt for $175, in' this way accounting for $3648, moneys of Mrs. Beck, which he had in his hands. He had collected the $1648 some time before, on account of Mrs. Beck, and had paid her six months’ interest on it. The $2000 was evidenced by a note for that amount secured by a deed of trust. Herman J. Krembs, Sr., died March 26, 1915. By his will he constituted his wife, Lizzie A. Krembs, executrix. She qualified as such and entered upon the administration, but after-wards her letters as executrix were revoked and she, in connection with one Monti, was appointed administra-trix, with the will annexed, of his unadministered estate. The action is against these two parties, hereafter referred to as the administrators, as also against one William Corman, the party by whom the note for $3500 and the deed of trust securing it were given, and also against one Luecking,' trustee in the deed of trust executed by Corman, plaintiff being the beneficiary. It is charged in the amended petition upon which the case was tried, that the estate of Herman J. Krembs, deceased, is insolvent; that there are large claims against it, exceeding the" assets and funds in the hands of the administrators and that plaintiff has no ade
The answer by all the defendants, admitting the appointment of the administrators, denies all the other allegations in the petition.
At the trial before the court it found that plaintiff was entitled to an allowance of her demand against the estate of Herman J. Krembs for the sum demanded,
A careful reading of the testimony in the case satisfies us that the conclusion arrived at by the learned trial court is sustained by substantial evidence; in fact we may say by the preponderating evidence'in the case. It distinctly appears that Krembs, during his- lifetime, had in his hands $3648, belonging to plaintiff; that he turned over to her for that the Corman note for $3500, secured by a deed of trust on certain property in the city of St. Louis, paid her $3 in cash and gave her a receipt-for $175, it being the intention and the agreement between Krembs and plaintiff that Krembs would pay out this $3500 in the construction of a building upon the lot. In point of fact Krembs did not use any of the money in his hands belonging to plaintiff in improvements upon the property and it would appear that no improvements had in fact ever been made upon it, although that property is incumbered by the deed of trust referred to for $3500. The evidence is very persuasive, in fact preponderates, in favor of the proposition that none of this $3500 fund ever came into the hands of the executrix or of the succeeding administrator and administratrix, and did not go to swell or enlarge the amount of the estate in their hands. While the estate of Krembs was inventoried as containing- a large number of assets in nominal value, its indebtedness largely exceeded its pur
Learned counsel for appellant relies upon the decisions of our Supreme Court in' Evangelical Synod of North America v. Schoeneich, 143 Mo. 652, 45 S. W. 647, and in Tufts v. Latshaw, 172 Mo. 359, 72 S. W. 679. We do not think that the facts in the case at bar bring it within the facts of either of these cases. To the contrary, we think that .this case falls distinctly within the cases of Paul v. Draper, 158 Mo. 197, 59 S. W. 77; Bircher v. Walther, 163 Mo. 461, 63 S. W. 691, and of Pearson v. Haydel, 90 Mo. App. 253, and the later case of Raymuth Real Estate & Building Co. v. Robinson, Admr., 199 Mo. App. 515, 204 S. W. 256. The learned trial court appears to have had these cases, except the Raymuth Case, which followed the others named, before it in the consideration of the case and on their authority decided it as it did. In this we find no error.
It is suggested by learned counsel for respondent that plaintiff has an adequate relief at law, at least for the recovery of a part of the $3500 loan made on the deed of trust given by Corman. We do not consider nor pass upon that but content ourselves with dispos
The judgment of the circuit court is affirmed.