72 Mo. 227 | Mo. | 1880
Lead Opinion
I.
There was no necessity for a motion for a rehearing of the grounds upon which the court dis
II.
We have no doubt, either, as to the point concerning jurisdiction. This question has been recently discussed in this court, and the conclusion reached that though in the ordinary routine of administration the probate court has original and exclusive jurisdiction, yet that such jurisdiction does not extend over matters of purely equitable cognizance. The allegations of the petition, in this instance, show very conspicuously that the probate court, a court of statutory origin and limited jurisdiction, is endowed with no powers by the law of its organization, and it is the possessor of no others, whereby it can follow a trust fund through all its various transformations from money into personal and real property during a long series of years.
This is no case of a demand against an estate for the debt of the decedent, where the allowance of that demand would be followed in usual course by an order for the sale of the lands for the payment of the debt, and where, of course, the remedy at law being amply efficacious would constitute an insuperable obstacle to equitable interposition, but a case where the beneficiaries, the pursuers of the trust fund, may, upon sufficient evidence of the conversion of that fund into certain specific property, elect to take the property itself; in which event it is quite obvious that the legislature has furnished the probate court with no machinery whereby the property in specie, the result of the misappropriation of the trust fund, could be delivered to the beneficiary. And this is especially true if that property should consist of landed estates; for it would scarcely be seriously insisted that such court could, without transcending its statutory functions, without overstepping the narrow boundary of its strictly legislative authority, assume to itself the exercise of chancery powers, and doing so, proceed to enter a decree declaring the rights of the parties
These considerations induce us to reiterate our conviction that a court of equity is the only forum where a party can safely appeal in this class of cases; a forum which, at one hearing and one decree, can with its peculiarly flexible powers — powers unknown to other jurisdictions — adjust with nicety all conflicting interests, thus at once avoiding a multiplicity of suits and affording a measure of justice both adequate and final.
III.
It was an erroneous ruling to dismiss the petition because there were no proper parties plaintiff, or that Lawson, the administrator of Gregory’s estate, was a necessary party defendant, or that Tillett’s heirs.were necessary parties plaintiff, since our statute has made ample provision for such contingencies, by providing that: “ When a complete determination of the controversy cannot be had without the presence of other parties, the court may order them to be brought in by an amendment of the petition or by’a supplemental petition and a new summons.” 1 R. S. 1879, § 8568. Under this section it was the duty of the
Besides, a party cannot take objections of the character mentioned at the trial. We are not aware that any objection has ever been taken in this State to the introduction of-any evidence on the trial, except upon the score that the petition did not “ state facts sufficient to constitute a cause of action.” According to express statutory provision, the objection of a defect of parties can only be taken by demurrer or answer. R. S. 1879, § 3519; Ruegger v. Lindenberger, 53 Mo. 365 ; Horstkotte v. Menier, 50 Mo. 158; Dunn v. Railroad, 68 Mo. 268; State v. Sappington, 68 Mo. 454. In New York it is held that at the trial, but two objections can be taken, the one as to the jurisdiction of the court, the other as to the petition not stating facts sufficient, etc. Winterson v. Railroad, 2 Hilton 389; Ludington v. Taft, 10 Barb. 447.
So far as Lawson, the administrator of Gregory, was concerned, it was not necessary to amend the petition, as by that he was already made a party defendant; all that was necessary for the court to do, if satisfied that Lawson was a necessary party, was to set aside its order respecting him, thus reinstating him as such party.
Relative to the point as to who are necessary parties plaintiff, we regard the present plaintiffs in that light, being the administrators and legal representatives of those, who if living, might have maintained the present proceeding, and the authorities cited for them, we think, show this. But they are proper and necessary parties plaintiff) only so far as concerns the personal estate of their respective de
IV.
We are not of opinion, for the foregoing reasons and others which will readily suggest themselves, that there has been any misjoinder of causes of action, or that the petition is multifarious.
V.
The next point for consideration is, whether the petition states facts sufficient to constitute a cause of action. Considered apart from the question of laches, or 'the statutory bar, there can be but one opinion as to the sufficiency of the petition, for its allegations set forth a very flagrant, instance of the abuse of a trust. If a party makes his objection by demurrer to a petition, on the ground that it does not state facts, etc., he is thereby deemed to confess the truth of its allegations, denying only their legal sufficiency ; and it is not unreasonable that a like result should follow, when he takes the same objection, ore tenus, instead of in the ordinary way. Taking this as true, then, the alie
YI.
Regarding the petition then as sufficient in a general point of view, is it to be regarded as insufficient, because showing upon its face a great lapse of time to have intervened since the breach of trust took place? We are not of that opinion, and for these reasons:
The departure of Gregory from North Carolina, and his studious concealment of his whereabouts, would prevent the statute from running. The language of our statute is express on this point, (R. S. 1879, § 8244,) and is couched in the same language as was the statute of 1835. Harper v. Pope, 9 Mo. 402; Wells v. Halpin, 59 Mo. 92, and cases cited.
The statute would not run for the further reason that as the purchase by Gregory of property in his own name, with the funds of the estate created a trust in favor-of the latter, such possession would not be adverse until the trustee had done some open and unequivocal act deny-, ing the right of the cestui que trust. Until that occurrence the possession of the trustee was that of those benefici-. ally entitled. The admitted allegations of the petition show that the possession of Gregory was never adverse,, but that he always acknowledged the character in which he held the property. In such circumstances the statute-does not run. Norris’ Appeal, 71 Pa. St. 106; Carter v. Feland, 17 Mo. 383.
Nor does the statutory bar attach for the additional reason that no letters had been granted on the estates of" those whom the plaintiffs represent. The authorities cited on their behalf fully support this position.
Nor under the allegations of the petition is laches, chargeable to plaintiffs; for laches presupposes not only-delay in the institution of proceedings for relief, but such knowledge of facts on which the claim for relief is hot-.
The judgment is reversed and the cause remanded.
Dissenting Opinion
Dissenting.— The probate court had exclusive jurisdiction of the subject matter of this suit. The whole purpose of the bill was to obtain an allowance against the estate of Gregory, for the sum of $40,000 and interest, that being the value of property alleged to have been held by him in trust and converted to his own use. It was a mere money demand which should have been presented to the probate court for allowance. Acts 1865-6, p. 83.
