148 Mo. App. 492 | Mo. Ct. App. | 1910
To render this case clear, a full statement of the facts is essential, and they were developed on the trial in a way that makes it difficult to ascertain from the record what they are. Much of the evidence put in consisted of testimony given on the trial of another case, wherein the final settlement of plaintiff as administrator was in contest, and many of the questions and answers on the present trial relate to what the witnesses testified at the other ■ trial. Moreover, the' testimony is, in many particulars, both vague and contradictory. This proceeding commenced in the probate court by plaintiff, as administrator de bonis non of the estate of H. G. Pitkin, presenting a demand against E. E. Parrish, as administrator of the estate of John B. Mudd, deceased, for the amount of three promissory notes signed by Barton Hunt, dated February 18, 1899, bearing seven per cent interest form date, one being tor one hundred dollars and the other two for two hundred dollars each, less a credit on them of one hundred dollars. The total amount claimed, principal and interest, is $558. Just when the demand was filed in the probate court is nowhere stated; but the date of the affidavit to the demand shows it was not prior to September
Going back now to the notes Hunt made to Mudd, it appears Hunt paid the amount of them to Mudd by check dated September 29, 1902, or three years before
A main contention for defendant is, plaintiff cannot maintain the proceeding because his final settlement as administrator of the Pitkin estate had been approved long before he filed the demand against the Mudd. estate. Whatever the law is elsewhere, in this State a man’s power as administrator ceases when he has submitted a final settlement to the probate court pursuant to due notice, and his settlement has been approved and he ordered discharged. Thereafter he can no longer act in
The fault of this proceeding lies deeper. Plaintiff; is seeking to collect in the ordinary way a money demand from the Mudd estate as a debtor of the Pitkinestate. But if anything is due the latter estate from the Mudd estate, the liability, in our opinion, did not arise in such a way as to make it recoverable in this kind of proceeding. It could only have arisen from Mudd being-trustee for plaintiff as administrator, first of the land; he bought in at the foreclosure sale under the Burkett deed of trust, and secondly of the notes he took from Hunt when the land was sold to the latter. In other words, to lay the Mudd estate liable for the proceeds of those notes, a trust must be established wherein Mudd was the trustee for plaintiff as administrator.' Moreover, this trust would necessarily be an express and not a resulting or constructive trust. Plaintiff advanced no money to buy in the land at the sale under the Burkett deed of trust when Mudd acquired the title-» Hence a resulting trust did not arise on that ground*, and the facts on which other classes of resulting trust®, may be raised are so unlike those of the case at bar that; it is useless to elucidate further why there was no such-trust. See 15 Ency. Law (2 Ed.), pp. 1124 et.seq. We-find no facts upon which Mudd could be held trustee of" a constructive trust for the benefit of plaintiff as admin
The judgment is affirmed.