Beck v. Krembs
213 S.W. 487
Mo. Ct. App.
1919
Check Treatment
REYNOLDS, P. J.

— This is а suit in equity to establish a claim for $3500 and interest against the es*700tate of Herman J. Krembs, deceased, and for a decree ordering the payment of the ‍‌​​‌​​‌‌​​‌‌​‌‌‌‌​‌​​​‌‌‌​​‌‌​​‌​‌‌​‌‌​‌‌​​‌​‌‌​‍claim ont of the assets of the estate in preference to the general creditors.

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, thаt 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, monеys 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 evidenсed 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 whоm 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 beneficiаry. 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*701quate remedy by proceeding in the- Probate Court or at lаw; that the executrix first, and then the administrators had full charge and control of all the real estate in the estate and that the fund belonging to plaintiff, that is the $3500, is now in рossession and control of the succeeding administrators and so commingled with the funds, property and assets of the deceased in the hands of the administratоrs that it is impossible to separate, identify or distinguish the fund in the possession of the administrators, or that the fund was paid out by Herman J. Krembs during his lifetime in the course of his business and usеd in paying Ms debts and obligations of various ldnds, thereby enlarging the value of the estate received by defendants as administrators, plaintiff charging “that either said funds of plaintiff as aforesaid actually passed into the hands of -said administrators or that said fund ‍‌​​‌​​‌‌​​‌‌​‌‌‌‌​‌​​​‌‌‌​​‌‌​​‌​‌‌​‌‌​‌‌​​‌​‌‌​‍of plaintiff was paid out by said Herman J. Krembs during his lifetime as aforesaid, but this plаintiff is not informed as to which of said alternatives is true.” The prayer is for judgment against the administrators in the sum of $3500, with interest from November 3, 1914, for a decree that the plaintiff have a lien upon all of the assets in the hands of the administrators for the payment of the same, that the court order that plaintiff be paid her claim in full out of the assets before the assets or any part thereof are used for the benefit of the general creditors of the estate, and that it order and decree that Luecldng, trustee in the deed of trust executed by Corman, release that of record, and that the deed of trust and all the promissory notes desсribed therein, which it is averred are filed with the petition, be disposed of by the court in such manner as it shall deem meet and proper.

The answer by all the defеndants, 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 tо an allowance ‍‌​​‌​​‌‌​​‌‌​‌‌‌‌​‌​​​‌‌‌​​‌‌​​‌​‌‌​‌‌​‌‌​​‌​‌‌​‍of her demand against the estate of Herman J. Krembs for the sum demanded, *702with interest, and that she have judgment against the administrator and the administratrix of the estate of Herman J. Krembs, deceased, fon $3809.75, and for costs; that this be allowed as a demand in the fifth class and be certified as such to the Probate Conrt. The conrt further found and adjudged that the fact that the plaintiff’s funds were commingled by the deceased Krembs with his own funds was not sufficient to establish a preferentiаl lien against the assets of the estate and that plaintiff, having failed to show that any of her funds passed into the hands of the administrator or administratrix of the decеased, the preferential claim demanded by her must be and it was denied.

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. Lоuis, 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 appeаr 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 рersuasive, 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- а large number of assets in nominal value, its indebtedness largely exceeded its pur*703ported assets and beyond tbe sum of about $50 in cash, in bank and on hand at the time оf his decease, Krembs left nothing beyond a lot of worthless stock, uncollecti-ble notes, and equities of doubtful value in a number of parcels of real estate. None of this $3500 is traced into any of these real estate deals, and it is impossible to trace any of the $3500 as having gone into the purchase of any оf these properties or the equities in them, or as having been invested in anything that came into the hands of the executrix or administrators, or as being any part оf the assets in their hands. Krembs, during his lifetime, seems to have used this plaintiff’s money as well as that of other of his patrons and customers, indiscriminately in his various operations and to have practically lost it during his lifetime. At any event, it does not appear that any of it came into the hands of his legal representatives after his death. So the learned trial court found.

Learned counsel for appellant relies upon the decisions of our Supreme ‍‌​​‌​​‌‌​​‌‌​‌‌‌‌​‌​​​‌‌‌​​‌‌​​‌​‌‌​‌‌​‌‌​​‌​‌‌​‍Court in' Evangelical Synod оf 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 fоllowed 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 fоr 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*704ing of the ease in the manner in which it was considered and disposed of by the learned trial court.

The judgment of the circuit court is affirmed.

Allen and Becker, JJ., concur.