*1 OCTOBER, 1934. George
Kate Cunningham, Stephen, Administrator Estate of J. W. Simons, Deceased Respondents, (Plaintiffs), A.Wm. Kinnerk, Executor of the Estate Kate Appellant. Deceased (Defendant), (2d) 74 S. W. 1107. Appeals. Opinion
St. Louis Court filed October 1934.
- Loev'y appellant. A. E. *3 respondents. H. Brammer Wackwitz and
Arthur L. *6 suit, equity by C. This BENNJCK, are jointly pursuing a trust fund the hands of defendant executor. having with parties to do establishment of. trust .and E, controversy growing present Camp- with the out of it. are James Kentucky; Madisonville, sister,. Sophronia Martin; his her bell of *7 Harris; Cunningham, Simons, J. W. N. children, Kate and Edwin widow, and the Kate Harris. latter’s they facts, by court, undisputed as found the of as stand in 1909, record, prior Camp- to in James
the disclose E. his death Harris,.' of nephew, bell intrusted to his sum had Edwin the N.. City by the $5,787 to latter real estate in of St. be invested in the same, Louis, Campbell’s and and In the to be held for- to use behalf. - сreated, conformity so Harris' invested with terms trust the a.building upon hyhis wife, a lot' money in owned the erection of .the being Avenue, Harris, same known as 1245-1247 Walton (cid:127)Kate the Louis; course, consequence was, St. of. of City and a of . it alleged Harris is thereafter to the trust such use of fund-that Kate Campbell of a use and-benefit and his have become trustee for the death, after his heirs had his will and testament before 1904, Campbell In executed last subscribing by for witnesses, which, providing after terms of two bequests, to his specific' he residue his estate certain devised nephew, his sister, Martin, niece, Cunningham, Sophronia his Kate and following equal Shortly shares. his death Edwin N. Kentucky, duly County, probate Hopkins in- admitted to will was n onOctober 1909, which effective fоr-the from and after it became case." by parties plaintiff:in- this' (cid:127)purposes relied brought against an them prosecution with Threatened action warranty Harris, by damages contract, Mr! Mrs. for and for breach July 1915, Conveyed in-.question real estate executed on deed - $10. So Cunningham for the nominal-consideration 'to Kate (cid:127) 19, 1921, settle- December some few months stood until after title quitclaim Cunningham, by litigation, -Kate pending when ment of the individually r'éconveyed Kate Harris property deed, subject, conveyance being expressly made $1, consideration however, -her oWn undivided onedhird interest Campbell. E. James drawn, quitclaim deed specifically found that The court Wm, defendant,- Cunningham by A. procured, Kate execution its agent attorney acting for both Kinnerk, at time who As. undoubtedly finding Harris. Such Mr. and-Mrs.- the .'court-was throughout trial there con- by-the fact that prompted ha'd.been - as to the bickering counsel motive back and forth siderable 'between inducing attorney governed defendant as which/ had suóh. containing reserving in- her sign the clause Cunningham the deed
757. terest estate, merely whether to mislead her into believing that she was rights reserving the all the Campbell heirs in the property, or: whether it was actually purpose his to have the - accomplished reservation acknowledged the execution of the deed..
Edwin 17-, N. Harris died on March leaving without 'descend- ants capable of inheriting, and Kate Harris on January died 17,1926. Thereafter, defendant, Vm. A.. Kinnеrk, duly appointed qualified as estate, executor of her testamentary letters being granted him January on 26, 1926.
On- 19, 1926, November defendant, as .of executor the estate of Kate Hárris, the property sold highest to the bidder for cash for the sum of $19,150, primary purpose of being the sale satisfy outstanding remove and an encumbrance-of $4,500, and secondary a being perhaps reason attempt Camp- to circumvent the bell heirs in the against assertion claim they asserting. had in fact shortly since after death Edwin *8 N. 1923, Harris in after a document executed Harris in acknowl- edgment of among his status as for trustee had found now; Campbell’s papers Admittedly and effects. is there a. balance in the estate of some twelve or dollars. thousand fourteen days 1926, 17, sale, On November Kate two before above the Cunningham City in instituted- her Court of the Circuit of suit the against defendant, Kinnerk; of St. Louis as executor of estate Harris, deceased, Kate to establish own individual and undivided her being equitable in estate, such found to interest be original fund, trust representing .of one-third of $1,929, sum residuary, the three arising her as one of of the and out devise Recovering in will. designated Campbell’s in E. legatees James fund, the case in the of court the.full amount her:interest for circuit wherein, Jan court, on this of appealed the estate on behalf respects was in all uary judgment the circuit court 10, 1926, the of (2d) 1 S. W. (Mo. App.), [Cunningham v. Kinnerk afSrmed. adjudicate present Obviously decision, though hot res аs identity of in reason, because, other of difference if no suit since it involved prime importance, parties, nevertheless ques- as well as the inquiry, very now trust establishment shares respeetiive rights of the claimants to tion of their E. Campbell. James the will of residuary elause of under fund the. intestate; May on had Martin herself died Sophronia Meanwhile Cunningham leaving leaving and unpaid, Kate- no debts only surviving her herein, as Simons, W. and J. Cunningham J. and Consequently, at law. Kate heirs children of their mother at the heirs law succeeded W. at once Simons -the their in the share .of mother share each undivided one-half an - Campbell; E. the interest of James brother, her deceased being Cunningham); an (as .Kate the case of Sophronia Martin Cаmp- E. residuary estate of one-third share James. undivided will. his terms directions of pursuant to the bell appeal this court on which reached the former case whereas so, And :Cunningham by Kate was a suit Kinnerk, supra), (Cunningham will, Camp J ames E. residuary legatee under the individually, as a establish, equitable interest individual: and recover her own bell, to presents sale, from this case its the fund derived in the or -W. Cunningham and J. jointly, Kate prosecuted demand, sole, Martin, Sophronia surviving at (cid:127)law' of heirs Simons, as the fund, Martin in the Sophronia interest of recover the to establish and already .have they death, we upon her succeeded which interest mind, have as we borne in But, course, it should be pointed out. stage opinion;, at an earlier out рointed, likewise considera under the-identical- one which' to be established trust (cid:127) Martin’s interest Sophronia case, in the former tion will Campbell’s E. James same clause of of-the fund arose ont -based interest was identical, individual Cunningham’s Kate upheld. present The suit City instituted the- Circuit Court of the -Louis, St'. March 16; However, prior on 1929. thereto, February, Cunningham both Kate and J. Simons had exhibited their n claim for allowance'-to defendant'as executor estate- of n being said estate under1 process of administration in the - County. Probate Court of purport St. Louis of the claim so filed was general not that the two claimants' should'simply share as estate, creditors in but'rather that the trust'fund should taken entirety in its estate, out of paid the assets-of the and be over to them nn as -the probate' court, beneficiaries of in' the fund. Disallowed an *9 appeal County, was taken to the wherein, Circuit'Court of St. Louis January again 21, 1929, disallowed; on the claim was and’there the stopped, being matter appeal no taken to this court.' argues with plaintiffs Defendant much insistence that are now by barred suit adjudication, plaintiffs as to this such former while argue, contrary, equity to the that inasmuch as their claim was one in pursuit in executor, of a trust -in fund the hands of defendant acquired' jurisdiction probate subject court could have no over- the - demand, matter of the’ court the circuit could have derived no by jurisdiction appeal to all of which served to render such it, adjudication nullity. prior say of this have more But we shall anon. appear claim, It that in if it would event thé could- otherwise n ' n regarded against 'estate, ordinary
be as an demand would have by-limitation probate been barréd time -when in the court in filed February, 1928, testamentary letters having granted defend- ant in January, 1926. But, course, so far as this case is concerned, - the nature and character of the claim itself import- matter of ance, and the .timely, of whether presented- it was in the - probate consequence court of- no if court, that because equitable relief called for, acquired- could no event jurisdic- have tion try the claim on its merits! petition upon
The alleged trial was had that the cause оf action “joint stated was the demand” though of the two plaintiffs, what pleader undoubtedly had in say mind to was it was that being prosecuted jointly; it set out the plain- creation of the trust and tiffs’ mother, succession to the Sophronia Martin, interest their therein, provided Camp- as the terms of the will of James-E. bell; judgment-rendered pleaded’that it further case the' adjudicat'd- Cunningham v. Kinnerk, issues- supra, was res- ' adjudged prayer in this that be the case. was re- Sophronia they law of have and Martin, sole heirs at and-that Harris, the of Kate defendant, cover from executor of the -state- as -Camp- Martin James E. Sophronia one-third in'the estate!of share among assets being mingled held bell, with and then same share on sum of such with’interest Harris, оf the estate of Kate Evidently 1921. selected from 19,- such.date'-was (cid:127)from December on that because date that run it was after which should conveyed by quitclaim deed to Kate- Cunningham property theory being-that by the-reservation-contained reason'of there- executed, trustee became the status of Kate Harris as deed so by fixed and established. cause Simons.-died, and thereafter -the
On March J. ~W. duly George ap- Stephen; the him- as to in the name revived estate; qualified pointed and administrator his plaintiffs, the separate each of-the. answers Defendant filed - the -ad Stephen, being -plaintiff identical to- answers save alleged inas Simons,- was it the estate of J. ministrator of question: proceeds of the estate, was real much as legal so that fiction, real sale defendant remained thereof thereof, any, passed if Simmons, his share upon the of J. "W. death - to his and not his administrator. heirs n denials, general pleaded the answers, Otherwise the in addition .one-year special limitation and ten-year five and statutes of on was limitation; of: action sued probate cause statute right, if of each character, any, joint but that not of a nature or individual; judgment single, that the plaintiff separate, - adjudicata not' res Cunningham Kinnerk, supra, case *10 h,is case,- that nor' party a Simons, not to was as to J. W. who was - adjudication against plain-; same; cause of action the ’ County circuit St-. probate claim in of Lоuis tiffs eourts right recover in their to this suit. conclusive toas reply form. -wasin conventional had, judgment plaintiffs rendered October trial with .on A the-judgment being plaintiff eaeh recover of 9, 1933, have and the estate defendant, executor of of the sum of as share principal for his share $964.50, as and one-half orvher per Sophronia Martin, at six of with thereon rate of (the probate date per from October of the- of cent annum $2,353.88 of due Campbell’s will), aggregating James E. eaeh sum support judgment the court to were plaintiff. The facts as found its in about as narrated them our statement we have heretofore appeal case. in usual course. has followed Defendant’s to court this points. raised defеndant in somewhat Taking-up numerous acquired logical order, of a we- his contention that note first mother, Sophronia Martin, title at law to James no as-heirs of their although Missouri, Campbell’s if-any, property, because, E. in concededly probate Kentucky, in will of admitted to decease, not for record the State his it was filed in of. residence and City Louis, probate St. to officein1the or admitted the recorder’s St; consequence City Louis, Court the- in Probate Martin,. title to passed Sophronia which claims that no defendant solely property was as claim an interest in the Missouri whose residuary -legatee under will. such argument upon the of section attempts
He to base his terms Ann., pro- (Mo. p. 338), St. Revised Statutes sec. any any in vides, among probate will admitted things, other therein, State, together- admitting, probate the same to with- the order according probate Congress, shall be admitted certified to act of thereby, any is or county in in where real estate affected this State county, and that all in the office-ofthe recorder deeds such- filed any probate such certified, theretofore admitted to such wills so give any county, office, recorder’s shall or filed for- such record thereof, be shall admitted thereof, they, copies certified notice and- or in all courts this State. as evidence harmony course, along with is, to be -read and in This section (Mo. 254, 549, Ann., St. 254, 549, 1929' secs. sections Revised Statutes general which, follоwing the doctrine 164, 337), the substance of pp. foreign for a will matters, provide that applied is to in such State, validity disposing property real this it.must far according of this So to the laws State. have been executed concerned, requirement execution is otherwise, personalty render- according law of the domicile foreign will to the testator’s a theory personal that- -thereto ing pass title it effective to governs subject law which has-no'locality, but
761
person of the owner.
v. McGhee,
[Thomas
320
519,
Mo.
8 S.
(2d)W.
71; White v. Greenway, 303
691,
Mo.
263 S.
104;W.
Keith v. Keith,
Campbell estate in Missouri, whether -real or personal, must be de termined in view of the material and substantial: exist distinctions ing in requirements disposition for the of the two prop forms of erty by case, foreign will; and as to this feature of the canwe reach no other conclusion than that Campbell interest under inquiry, though concededly an undetermined, equitable undivided at the time of both Campbell’s Sophronia death, Martin’s nevertheless real property. Even as Campbell between and Edwin Harris, the terms of the trust wére indefinite other that the than funds were to be invested in estate; St. Louis real but as between him and relations, Kate there proof was no contractual whatsoever, so that hér Campbell- status as to at least aof. resulting' trustee trust, under a one_raised which is implication justice money of law to meet where, here, the ends of invested as- legal party, improved that of the one with property title to the solely party. Fitzpatrick, 218 708, vested Mo. other v. [Stevens 51; 1022; 118 282 Pelt, S. W. 314 Sanford v. Van S. W. Mo. .(2d) Myers, 1066.], v. 320 9 W Ebert Mo. S. where one And another, in land as trustee for it is an interest holds title to real interest, property, upon he an holds, personal estate and not (as. death beneficiary in'the case of the the death of the intestaté recovery- of heirs, and in 'the Martin), descends Sophronia to his- beneficiary’s- estate, adminis of-the in the absence of debts which, 115, 126, Downing, 224 Mo. v. concerned. trator is not [McKee 202; Clay 91, 121, 73 S. W. Johnston, 173 Mo. 7; v. W. Johnston S. 965; 65 C. J. (2d) 961, (Mo. App.), S. W. Walker v. that, title-to understand true, we do not though the above is But this, us so proceeding directly involved estate is real .oust whole, suit upon the record appeal, jurisdiction over th.e. judg recovery . moqey of a. fOr the ultimately into one resolves itself shares of respective of the the value representing a sum ment for Martin, the mother, Sophronia their the share of in and to from among proceeds being by defendant derived held same Clay begun. long suit was [ this before piece sale right which is words, pecuniary it is a supra.] In other Walker, v. sense in -a though dependent determined, sought and is to be judg land; and title .to. the former condition question money, without payment is one for the lower court ment of Were the situation itself. affecting real title anywise Cunningham jurisdiction had no have otherwise, we would appeal. merits on on entertained supra, which we the. Kinnerk, dispute Cunningham is no and J. Now there' but. surviving Sophronia law of Simons, Martin, as the sole heirs at took acquired title whatever she under the to his real estate .will Louis, determination is St. so that the for our whether estate, passing such will had effect of title to Missouri real it having in’Kentucky, having probated been executed and-not lay, having not probated St. Louis where the land been filed *12 in deeds We think that for record the office of the recorder of here. (cid:127) case, parties, and under the circumstances of this as betwe'en these the will was title. pass sufficient to Generally in State a probate of a will another is speaking, n
judicial to of which full faith and credit prоceeding, the record Congress. given according How to certified to the aet of when (cid:127) ever full faith Constitution and the act and credit clause of the Congress only foreign in so far the court of the State apply as juris foreign. jurisdiction; a is without had and the court- of State State. v. over the to located in another diction title lands [Keith Hines, 243 147 W. When a supra; Hines v. Mo. S. Keith, 774.] foreign merely adjudges á it it. be the probate, State' admits will to to with, comply will have so as to of the deceased and to been.executed adjudication obliged are to State, of that to which we laws —ah foreign undertake give credit; court- does not full faith and but land, a title Missouri say to that the will is to transmit to sufficient jurisdiction; having have not’ quеstion it no over which could adjudication, probate fact of the to make such the- assumed have the credit foreign in and of itself State does1not will in the affecting State, in 'and title this in that State of to land we even give that it not it a credit here does upon are called to therefore not Consequently, probate. its in the State own execution have foreign give probate of a to the the force and effect which we must upon depends is concerned will far real in this State in so as having with' the to do the statutes heretofore referred real owned in Missouri nonresident of estate devise of this State. proceedings in in the courts such will [Keith use of supra.] McGhee, Keith, supra; Thomas v. v. executеd Campbell’s will Was riot is not point here Now the inadmissible, evi- it was State, nor that the' law of this
according to admission merely was neither offered for suit, that it but this dence office of the recorder of probate here nor filed for reeord what the effect of the question, therefore,’ The decisive deeds. against steps was as to have taken' either such failure fight Sophronia Martin property, of the the récord owner residuary in St. as a Louis Campbell’s real estate taken title to to have legatee will. under his statute, either of the
Quite obviously, plain implications from the 763 probate foreign of a .State, filing will in this or its for record with the recorder deeds, both which acts put upon are a parity 552, suprа, section is a mere act determining ministerial validity located, pass the will realty title State. It is this foreign from the adjudication validity the will its derives as the will deceased, ancillary proceeding in the local jurisdiction merely give serves binding thereof, notice adopt or to nn subject will by. to the interposed lex limitations re-i the. sitae so far as real may thereby. be affected v. McGhee, [Thomas supra.] Consequently we think foreign. it must will, follow that a unrecorded in this State proved (assuming and not anew it to have 'according executed to our was), laws this one will have the same force (Keith and effect as an Keith, unrecorded supra; deed v. Ewart,
Graves
v.
971;
Syckel
Mo.
S. W.
Van
Beam, 110
v.
Mo.
Here there can be or is to be no doubt but that Kate Harris had *13 charged knowledge outstanding interest, with of be- the' attorney 1921 to draw employed cause in she her the defendant as by reconvey Cunningham prop- quitclaim which Kate was to the deed Cunningham’s one-third her, undivided erty and in which Kate to specifically reserved. Campbell was James E. interest in the estate of interest, there Cunningham a one-third if Kate had must Obviously, outstanding in interest also corresponding two-thirds a have been such knew of Harris Kate And of course parties. or more other one it was drawing because deed, the of time of the to the prior into written knowledge reservation that the her on account are her executor notice, having she had Consequently, the deed. interest; and Campbell’s disposing will the by the terms of bound anew proved nor here for record filed was neither that it the fact ’ claims. resisting, nothing avails defendant above the under discussion of our portion Closely analogous ato adjudging in not erred court that the claim of defendant point is the (cid:127) Simons, W. J. original plaintiff, interest of the right and the that administrator; and his not to heirs and to his his death passed on Cunningham’s Kate merit of the regardless of consequently, that here- rеcover to not entitled Stephen, is action, coplaintiff, her cause Simons. J. W. estate of administrator capacity of in in the 1929; 16, Simons March on was filed that suit recalled It will be Stephen shortly 1931; thereafter 26, and. March died on for his estate administrator qualified as the appointed action. cause of reviving Simon’s purpose relying upon
What defendant is is rule- -wherereal is for probate payment sold under order of the court de of the debts, surplus remaining payment cedeiit’s’ after such made realty for purpose retains character of of' succession or dis goes tribution, and to the heir or devisee’in whom the title to- Doud, to v. real estate-was vested when it was converted. use [State Delaney’s (Mo. App. 216 Mo. S. W. 923 v. Estate 480, Arrowood 522; Kreyling App. App.), O’Reilly, 97 Mo. 295 S. v. 71 S. W. 372.] ’ a is, course, person The reason for rule -of that when dies such estate-passes vests-in estate, the title such real to- and owner1 real subject- right instante, only to ad heir or devisee eo. payment-of the executor sell same for the debts ministrator or decedent; property character- of of the and inasmuch as the generally that-impressed upon purposes distribution of'descent or decedent, purposes character for is not it at the death of the such its- - during 'administration permitted the- course of the to' altered looking'to of the estate. the satisfaction the debts conversion supra.] use v. Doud, [State Kate application has no here since
But we think that such doctrine Cunningham not the heirs-of and J. W. Simons ’were the assertion of their of the and therefore property, decedent owner any kinship Strict dependent upon to her. present claims is in nowise having been ly property, iii the never speaking,- Campbell interest during lifetime,- her could not have Harris property of Kate death, her and therefore assets estate at part of her become . Walker, [Clay subject payment of her debts to the was never 871; (2d) J. 72 S. W. C. (Mo. App.), Unsell supra; Bond v. in sol'd had been this, all converted But aside from long the time prior cash defendant on November had, both at institution filed. What Simons present suit proceeds vested interest death; his was a of his suit and at *14 already regardless out; of pointed previously sold. As we have land determining whether of purpose character of the for the the will, of by Campbell purpose passed Sophrónia to Martin title of defendant in the hands trust’ funds simply pursue this suit to they as status of the plaintiffs accepting the executor; with 882; 23 C. J. involved. C. it; real estate is not title to found and [13 might maintained Stephen have is one which The ciaim J. 1138.] instituted previously not if had administrator even the suit as it was sub prosecution, of its Simon, therefore, purposes and administrator. ject name as Stephen’s to be revived being of a-trust fund pursuit suit purpose from-among assets its'entirety out is asked to take the court mingled- to order which it is with Harris’s estate 76.5 paid, entirety sаme.to in its plaintiffs over to as the beneficiaries jurisdiction of the fund, equity has alone over claims, and the acquired probate jurisdiction, court no previously over claims filed therein, being subject the issue one of v. St. matter. Louis Union [Orr 291 383, Co., 642; Clay Trust Mo. 236 W. S. Walker, v. supra; Abernathy (Mo. Hampe v. App.), 53 (2d.) W. 1090; S. Dietrich v.
Jones, 227 App. 365, (2d) Mo. 53 S. 1059; Unsell, supra.] Bond v.
There is having no here of plaintiffs attempted proceed to -in probate by waiving court suing general trust as creditors estate; of Kate Harris’s and, as we already pointed out, have fund was actually part no her Consequently estate. judgment the adverse of the Probate Court of County, St. Louis as well-as the Circuit Court Louis-County, exercising of. St. its deriva jurisdiction tive -adjudicata appеal on the were not res it, to of the plaintiffs’, of. the claims. Springs merits Bank of Willow [State v. Lillibridge, S. 968, Mo. 293 W. While the lower court fact, finding did not make express upon an question, -this that proceeded judgment it to a favor plaintiffs, against de fendant, silentio, -it-found sub indicates that properly so, And, such was without course, defense! merit. subject since the jurisdiction matter of claims was probate outside -the court, they required it, were not to be exhibited plea and defendant’s one-year probate special Limitation-(section 75, Statute R. 1929; Ann., 75, 45), S. Mo. St. p. was likewise without merit. sec. ten-year necessarily
Nor the suit the five barred or either (sections 1929; 861, 862, R. general of Limitation S. Mo. Statutes 862, 1139, 1143), Ann., 861, pp. both which defendant St. secs. designating which of thе two he. re- up has set defenses without as argues Sophronia Mar- gards applicable. What defendant is that. 1909, upon probate her of action
tin’s cause accrued will;, enforce Campbell’s inasmuch took no-action to her as she though 1925, lived until her rights the will at time she under 1919; in' or at best and that right of became barred action being her barred, necessarily heirs are likewise she barred. finding express issue in the court made no this
The lower obviously it have though must be- case, pointed as we out above defense was well lieved not taken. begins general of Limitations run rule,
As a while the Statute brought implied resulting trust as soon -as the facts are against an or que trust so that he steps can of the cestui knowledge takе (Shelby County Bragg, 135 Mo. S. W. same v. the' enforce 560), 119 W. such stat- 600; Williamson, Mo. S. Freeland -technical, run'against express trusts until trust utes will not *15 possession of the trustee is to repudiated by trustee, the the since is 766 the regarded possession beneficiary, as and the trust is a
be the of. 4 (2d) 816; S. continuing, Rowland, v. 319 Mo. [Koppel one. Zimmerman, App. Mo. v. Bender 138.] applicable rule, particularly latter while it is said that such And too may a technical, trusts, apply also case of trust express parties, convention of the recognized or the consent and created equitable already owner, the the plaintiff which property as in of Laughlin, equitable [Laughlin an interest. v. which he had or in Rowland, 1024; Koppel v. supra.] 237 S. W. Mo. respects. in all the at bar material exception fits situation
Such equitable Harris’ interest Kate dated Martin’s Sophronia property Campbell. likewise death James E. So did the interests the from legatees' residuary 'Cunningham whom Kate one. other the husband, N. distinguished Harris, her from Edwin Harris, as Kate resulting a bare trust more than a trustee under may have been no agreement proof between lack of Campbell because of the the procured preparation and execution of two,. but in she the reconveying in which property her, quitclaim deed, expressly recog Campbell estate was existence of the Hunting (Mo. [Morgner she be bound. v. nized, which should point Nor the evidence conclusion S. W. does Sup.), repudiated the trust. The most she hеrself ever thereafter that she investigation an as-to full nature was to conduct ever did between Thus think that -as Campbell heirs. we claims of finding proof Kate warrants Campbell heirs and continuing trust, Katé recognized and so treated Harris’ they a death; continuing her ánd with such ownership property until repudiated by trustee, recognized, not trust established run. Limitations would no Statute great upon the many points based
Defendant has a have shown the status of Harris sufficiency of the evidence to property, funds invested in her respect trustee against his contention such'points may ruled all but Cunningham Kinnerk, which;- -while not res authority v. supra, necessarily case, persuasive as decision adjudicata to our as to this facts. identical state of upon the hérein trustee, árgument’s he makes granting for sake that she- But subject because the matter plaintiffs should not recover point money, and there no been recoñverted into trust has now through change original in its identifying way of utterly- without merit. The doctrine original This contention is form. following trust into an required one the hands of 'funds once identify specie earmark and' such funds has be able to other to Walker, long exploded. [Clay supra.] happily since Martin, mother, Sophronia their insistence
76,7 adjudged should be guilty having in not prosecuted laches their claim sooner likewise stands for disapproval. .The of laches is to be from the each. determined facts of case. Here the claim-of - undoubtedly lachеs should not lie since Kate Harris, after recog nizing the Campbell property,- interest in the not had .thereafter repudiated trust, prejudiced and in was nowise the fact that claim for Martin’s had Mrs. not been asserted earlier. 246 Keiser, v. 297 Mo. S. Otherwise the [Davies situation W. 897.] might regarded differently, equity, since does not look with- favor delay upon, in the assertion a claim until party after the to be charged is dead unable and so his offer defense. argues plaintiffs
He also that are joint not entitled to .recover on a demand, of Sophronia Martin, because as heirs their claims are dis separate, tinct, right characterizing and individual. in He thus is claims, of their nature in petition they the statement suing upon joint were eoncеdedly a demand was inappropriate. How ever the facts in pleaded petition as the basis for the cause of action case, show the real nature of joinder which was the in plaintiffs separate against assertion their claims the same depending upon defendant and the identical-proof. Under such cir cumstances, being joinder in equity, the suit plaintiffs of the entirely same prosecution proper. of the Lumber & [Ballew . Hardware Co. v. R 288 Co., Missouri Pac. Mo. 232 1015; S. W. Harrison, v. 167 App. 404, Shelton Mo. S. W. 634.] points respect Certain minor are raised with to the admission and points of evidence. These need not be seriatim, exclusion considered ruling no of the court thereon would have since adverse affected the record, preserved been Everything has such result. rulings court, record, regardless particular of the trial we judgment equity pleadings may inas and evidence render such supra.] [Cunningham Kinnerk, v. warrant.
Complaint expressly made that is also the court did not decide every -by separate answers of the defendant. each and issue raised the- already judgment out, both pointed have As we interposed. rate, all But necessarily defenses at we a denial of to, points expressly determined thus adverted have ourselves rights prejudiced. at all of defendant are not' so overruling that the erred point anbther is court defendant’s Still at suit which was made the close of the- to dismiss the motion whole of. it was made at the close As a matter of fact not case. whole reopened, great a thereafter the case was deal more because case this, however, Aside from such motion introduced. a' had evidence equity. taking this, a suit in The court warranted place no required advisement, judgment render under and was not case (Mo. Sup.), immediately the merits. Holmes S. on [Cuthbert (2d) 444; Spencer, 238 141 S. W. Mo. 81, Troll v. suggestion judgment ,the ./The is- made in not brief classification as a proper provision form it no for its because makes judgment against say it the estate. Suffice while the demand estate, against will not defendant it constitute as executor classified, estate, as in case against and .will not be demand already pointed Rather, be, have the effect will demands. we among entirety the assets of the this fund in its out, to remove from part, having a' not technically has been of which it never *17 Harris.during Walker, [Clay Kate her v. property of lifetime. the supra.] Unsell, Bond v. supra; plaintiffs argues allow- in-
Finally that it was to defendant error 4, 1909, the date due them from October principal on the terest petition had Campbell’s- will, E. when the claimed probate of James by 1921,. execution only, 19, from December the date of the interest reconveying quitclaim Cunningham property of the deed Kate suggests fact,, that interest should be Harris. In he rather to Kate demand, he be only thé-date-of which from thinks.should allowed Cunningham Kate 1923, letter from regarded 3, as the date of a June rights regard her in the'estate. Harris in to to ’ right concerned, interest is plaintiffs to far as the So seem:that, theory regarding its the court’s allowance would it n liability payment for the of interest 'of Kate correct.' The Harris into which the trust upon- private her use of based is 685; 65 828); J. Cruce, 676, 81 C. gone (Cruce Mo. v. had fund appropriation' the time of should run-from and interest words, is under such J. In interest allowed C. other fund. 832.] [65 trustee, 'but rather purpose punishing circumstances, not for presumed beneficiary aetual or for the trustee’s compensate the to therefore, follows, It property. gains personal use of the trust from his an-agreement between depending upon ease, not that in such a n parties;where the use of ground money is the of thе trustee’s the trust running necessary start the payment- is for to liability, .no demand equities adju'st'the being instead between allowance interest, the C. J. parties. [65 832.] matter', of-interest from October of the the Allowance
In view this rights will Martin’s under the be- Sophronia 4, 1909, when claims, be, defendant that because unless it as vested, proper came 19,' only 1921, from'December the court prayed interest prior adjudge period for the trust interest powerless date. such taken, general un- rule point be well Ordinarily would a being claims interest from certain petition where the doubtedly recovery an a of interest from -earlier date. allow daté, is error to it however,-is This, a 2 suit App. Mo. Watkins, v. [Turnbull
769 equity; and powers while the equity a court of iu the matter оf giving réüef are indeed limited to the cause action and issues made by pleadings (Branner Klaber, 330 49 S. (2d) v. Mo. 169), it is nevertheless true if sufficient facts are stated entitle plaintiff relief, may the conclusions of law he draw from them, particular may ask, relief he may, necessary, if be disre garded, granted relief be which is consistent with the case by plaintiff made and embraced within [Sharkey issues. Mc Dermott, 107; Mo. 678; S. W. C. J. Sec. R. S. 1929 (Mo. Ann., 1080, p. St. sec. 1378).] Particularly is this the where, here, situation prayer general there also relief for regarded may serving “to aid and supplement special prayer expanding special relief sought, so as to authorize further relief of the C. same nature.” J. 681.] [21 pleaded
Plaintiffs’ cause of proved action entitlеd them to the full amount awarded; prayer gen- and under the eral relief court was special not limited to the date fixed from prayer computed.' and after which interest should be This claim consequently against of error ruled defendant. points raised,
Other not specifically herein, discussed have examined, nevertheless been and found to be without merit. *18 judgment affirmed;
The rendered circuit court should be and the commissioner recommends. so foregoing adopted opinion C.,
PER CURIAM:—The Bennick, judgment is, the circuit court opinion of the court. concur; Hosteller, JJ., accordingly, McCullen, affirmed. Becker sitting. P. J., not Millinery Corporation, Appellant, Company,
The Sonnenfeld F. and Mrs. J. Zirnheld, Zirnheld, also known Mrs. Mr. Respondents. (2d) S. W. 608. Zirnheld, Mrs. Ruth Opinion Appeals. 1934. filed Court of November Louis St.