204 Mo. 655 | Mo. | 1907
This is a hill in equity by the administrator of the estate of Mrs. Melvina Blanchard against the administrator pendente lite of the estate of Joseph Benoist for an accounting of assets and moneys alleged to have belonged t.o Mrs. Blanchard in her life time to the amount of forty thousand dollars, which, it is charged, were entrusted to the said Benoist by Mrs. Blanchard, and of which no accounting had ever been made by said Benoist to her in her life time. Plaintiff alleges that he was appointed administrator of the estate of Mrs. Blanchard by the probate court of Jackson county,- on March 18, 1901, and that Mrs. Blanchard died intestate at Kansas City, February 91, 1894. The defendant was the administrator pendente lite during the contest of the will of Joseph Benoist, deceased, who died August 16, 1899: The petition then alleges that Mrs. Blanchard was a sister of Joseph Benoist, and they were both horn in the French settlement near Montreal, Canada, and were reared as Canadian French; that said Benoist emigrated in early manhood to the United States, but his said sister remained in Canada and was there married to one Joseph Blanchard; that in the early part of the year 1868 said Melvina Blanchard and her husband came from Canada and joined said Benoist at Baxter Springs, Kansas,.where said parties, working and co-operating together, began and developed a large and profitable merchandise business and jointly accumulated a large amount of property; that said Joseph Blanchard died in the early part of the year 1877, and that thereupon Mrs. Blanchard took her three children and her household effects and returned to Canada, leaving- her property in the custody and control of said Benoist, who was authorized by her to, and who did continuously thereafter sell, invest and handle the same for her; that for many years he loaned and handled the money and property of Mrs. Blanchard for her benefit and she
To this petition the defendant answered, first, that he denied each and every allegation contained in the petition, and, second, that the cause of action, if any, alleged by plaintiff did not accrue to him or to his intestate, within five years next before the filing
On the trial of the cause, the plaintiff, McKee, was sworn as a witness and exhibited his letters of administration, dated March 18, 1901. He then testified that he had none of the original mortgages or deeds or notes or title papers pertaining to the estate of Mrs. Melvina Blanchard, and had never had the custody of any of these papers. It was admitted that the defendant, Thomas J. Seehorn, was the duly appointed administrator pendente lite of the estate of Joseph Benoist, deceased; that said Benoist died, leaving a will, and under that will A. M. Allen, Thomas McNamara and Daniel O’Flaherty were appointed executors of the said will, and that subsequently a suit was instituted contesting said will, and by virtue of that suit. and because thereof the defendant Seehorn was appointed administrator pendente lite, and the estate of said Benoist passed into his control and possession. Plaintiff then introduced in evidence the original inventory of the estate of said Benoist, consisting of real estate and personal property, consisting mostly of notes secured by deeds of trust, amounting in the aggregate to $76,311.13'. On cross-examination the witness stated that he had never made any inventory of Mrs. Blanchard’s estate, but had been guided in all the proceedings by his attorney who brought this suit. If there was any inventory, he presumes that he was sworn to it, but he had no recollection of who the witnesses were to the said inventory.
The defendant Seehorn was then sworn as a witness for the plaintiff and testified that there were in his hands at that time, notes, Government bonds and cash amounting to eighty-two thousand dollars, and aside from that there were four pieces of real estate
The plaintiff offered evidence that in August, 1890, a suit was begun in the circuit court of Kansas City, in which Homer Reed was plaintiff and Joseph Benoist and Melvina Blanchard were defendants. In that suit the inquiry arose whether Benoist was loaning out his own or Mrs. Blanchard’s money in Mrs. Blanchard’s name. Benoist’s deposition was taken and he was questioned upon that point, and among other questions the following were propounded and answered by him as follows: “Q. Now, Mr. Benoist, was that your money or Mrs. Blanchard’s money? A. It was Mrs. Blanchard’s money. Q. Is • this Mrs. Blanchard a person of means? A. I believe she is. Q. Prom whom did she tfet her money? A. She had some money from her father’s estate, I am not positive about that. I do not know where she got her money originally. Q. Now as a matter of fact, Mr. Benoist, are not you loaning your own money in Mrs. Blanchard’s name? A. I am not; I am paying interest on money
The plaintiff offered in evidence what purported to be a fragment of a letter written by Joseph Benoist which the court excluded. That paper reads as follows : ‘ ‘ There is here a Canadian by the name of Remi Adolphe Magnan. I have known him for eight or nine years. He is a brave and honest man, a gentleman and honest above all. Should I happen to die suddenly, you may write to him and he would give you the information to help you recover your moneys I have lent in your name, and which to-day amount to over twenty thousand dollars. Signed Joseph Benoist.” The exclusion of this particular piece of testimony was made the ground of exception by the plaintiff. Magnan was shown to have died before this suit was begun.
In September, 1878, Benoist wrote to Mrs. Blanchard and in his letter said: “With regard to your money, you may do as you please, it is your' business, • six per cent is a rather small interest, but it is better than to have a promise of a higher rate and to be troubled in getting it. I will not send you any money be
Plaintiff offered in evidence an ante-nuptial contract between Joseph Blanchard and Mrs. Melvina Blanchard by which the property of both went to the survivor thereof at the death of either.
There was other evidence in the nature of statements and admissions in writing and oral by Benoist, tending to show that he had money of Mrs. Blanchard’s which he was investing for her, but the amount thereof was not shown by such statements* The evidence on the part of the plaintiff tends to show that Mrs. Blanchard was a half-sister of Joseph Benoist and they were both born in a French settlement in Canada, from which place Benoist emigrated to the United States in youth. Mrs. Blanchard was married to her husband in the year 1860. They were people of the laboring class with small properties. Prior to 1868, Benoist had settled at Baxter Springs, Kansas, and had established a mercantile business there, which prospered very greatly under his management. In 1868, it would seem at his suggestion, Mr. and Mrs. Blanchard sold their home in Canada and went to live with Benoist at Baxter Springs. The business at Baxter Springs was all in Benoist’s name and Mr. Darnall, a witness, who clerked for Benoist at that time, testified that he knew Benoist and Mr. and Mrs. Blanchard well and that he had never heard of anybody being interested in that business except Benoist himself. That Mr. and Mrs. Blanchard stated to him that they were dissatisfied there and Blanchard stated that he was working for wages for Benoist. Indeed, on the subject of Benoist ownership of that mercantile business, there is no substantial evidence that anyone else had any interest in it except Benoist himself. Blanchard brought with him from Canada about five hundred dollars in money, which he gave to Benoist for safe-keeping. In 1870,
In 1883, Benoist was building houses in Kansas City, and on January 1, 1884, he borrowed one thousand dollars from Mrs. Blanchard, paying her six per cent interest in advance. The interest he paid her semiannually in advance, and in November, 1891, he paid the note itself. On September 12, 1885, there was filed for record in Jackson county, Missouri, a conveyance dated and acknowledged March 12, 1881, from Melvina Blanchard to Joseph Ben'oist for the express consideration of twenty-five thousand dollars for the real estate conveyed to her in the three deeds filed July 6,1878, February 24,1880', and November 25,1880.
In January, 1887, Azama Blanchard, the daughter of Melvina Blanchard, married F. X. Bissonnette, and on March 7 of that year Mrs. Blanchard wrote Benoist as follows: “I hasten to answer your letter of the 27th, which I have just received with the bill enclosed. Thousand thanks for your kindness. . . . Perhaps you are going to blame me for giving one thousand dollars to Azama to buy one side of a house of two lodgings, one for themselves and the other to be let
On March 4, 1889', Cazilde, the other daughter of Melvina Blanchard married Joseph Henry Roy.
On the 19th of March, 1889, Benoist loaned one thousand dollars to Enoch Gr. Dawson and Martha Dawson, his wife, and took their note for the same, payable in five years to Melvina Blanchard and secured by deed of trust to himself as trustee, this being the same note over which he had the litigation with Reed as to his priority. On December 27, 1889', Benoist wrote Mrs. Blanchard: “I send you herewith seventy dollars ; for the interest on my note for one thousand dollars to the first of July, thirty dollars; for your incidental expenses to the first of May, forty dollars. I also enclose you three insurance policies, which you will kindly sign where I have made the pencil marks. You will put them in an envelope which I also send you, and stamp it sufficiently that it will reach me safely. The properties upon which these policies were issued were in your name and when you transferred them to me, the policies became valueless unless they were transferred to the purchaser. I have neglected to send them before, but if the buildings happen to bum, I would have difficulty to collect the insurance. ’ ’ On February 22, 1891, Mrs. Blanchard wrote to Ben
Benoist visited in Canada in August, 1891, and the witnesses for the plaintiff, Mrs. Archamhault and Roy, the sister and son-in-law of Mrs. Blanchard, testified that at a certain family dinner party while he was there, Benoist stated that Mrs. Blanchard was certain to have fifteen thousand dollars for each of her children, that she was rich, and that her money was at the Friars in St. Louis, and she would have no trouble to get it. "When Benoist returned from Canada in 1891, he brought Mrs. Blanchard with him to Kansas City and he furnished a house for her there, but she concluded to return to Montreal in November of that year. He furnished her with her railroad ticket and money to pay her note of one thousand dollars and interest. Benoist at that time was sending the boy, Joseph Blanchard, to .school in St. Louis, and in1 the summer of 1892, he ordered Joseph back to his mother at Montreal. Mrs. Blanchard wrote him: “I am very sorry to learn that you have ordered the brothers to send Joseph away without knowing why. If he has done something wrong, I implore you in remembrance of his father and for me, give him the charity to permit him to graduate so that he could have got certificates and be placed by the brothers to make his living. . , , Bear brother, I beg your
I. That the plaintiff ^séakiJrelief in equity or a discovery of .assets, and to have those assets decreed to the plaintiff, both sides agree. The plaintiff insists that a suit in equity is the appropriate proceeding to
Plaintiff, however, relies upon section 187, Revised Statutes 1899, which provides: “All actions commenced against such executor or administrator, after
Neither does the case of Wernse v. McPike, 100 Mo. 476. The evidence introduced by the plaintiff was not directed to any discovery of assets. The court was not asked to require the. defendant to produce any undisclosed evidence. The testimony on behalf of the plaintiff was apparently entirely under his control. It consisted of the evidence of the two sons-in-law of Mrs. Blanchard, Bissonnette and Roy, and of the deposition of Mrs. Archanbault, a half-sister of Mrs. Blanchard, tending to show admissions of Benoist of the possession by him of property belonging to Mrs. Blanchard, also the testimony of Milton: Campbell, Esq., as to the execution of the assignment of the various notes and mortgages by Mrs. Blanchard to Benoist and the record of some eight or ten deeds of trust securing notes payable on their face to Mrs. Blanchard. All of this evidence could have been introduced in an action of law upon a demand made under the statutes against the estate of Benoist in the probate court. Certainly the small number of items introduced did not call for an accounting or reference.
II. But we have no method of ascertaining upon what theory the circuit court dismissed the bill, and as the learned counsel on both sides have discussed the case upon its merits, we have examined the testimony in the light of the pleadings. The allegations of the petition are so general and cover such a long period of time, some twenty-six years, from January 1, 1868, to March 1,1894, that the defendant can hardly be said to have been notified of what he was to meet, save and except that in a general way the plaintiff, as administrator of Mrs. Blanchard, seeks to recover moneys made from business ventures in which Joseph Benoist was engaged with Joseph and Melvina Blanchard, but when we turn to the testimony, there was no evidence worthy of the name of any joint business venture by Benoist and his sister and her husband. On the contrary, the evidence tends to show that Benoist alone had established a lucrative business at Baxter Springs, Kansas, as early as 1867, and from that date until he sold out his business, at that point, he was the sole and only owner thereof, and that Mr. Blanchard was employed by him as an assistant or clerk, and that Blanchard became dissatisfied with the wages he received and returned to Canada and remained a year or two and afterwards returned to Kansas, where he died in 1877, without having ever, to the knowledge of any witness in the case, made the slightest claim to an interest in Benoist’s business. Not only was it not shown that Blanchard contributed any capital to the Baxter Springs store, which was in Benoist’s name
m. Error is assigned by the plaintiff to the exclusion of the writing identified as exhibit “P” in the
There are other propositions as to the exclusion of evidence, such as a marriage settlement and the citizenship papers, but their exclusion could not in any event affect the real merits of the case.
Having given the case our best consideration, we are of the opinion that the judgment of the circuit