*1 property showing of the and there is no that a majority the board bishops, duly convened, or of the Assembly any General at time officially ordered custody; that divested (2), of such there was Bogue evidence the effect duly appointed that was the and acting secretary-treasurer bishops of the board of such, was and, proper custodian property funds and church, of the tending prove legally there no evidence that he re- had been moved; and, (3), Bogue, there was the effect Rieger, evidence to that and Dobson, at the time the trial, were duly bishops authorized Stone, Savage, Turland, plaintiffs, had been “silenced” as bishops, and were then not in office. supra,
-In connection with number is: “The the evidence Twelve” Stone, Savage January, 1943; “silenced” Turland and regarded that said “silence” in practice, binding custom and until set aside Assembly, on vote General which was done 7th; Assembly, June taken, action of the General so was set aside the Assembly vote of on June 8th. Therefore the evidence plaintiffs majority fails to sustain contention joined legally qualified acting bishops filing of the church this bill. judgment
For the reasons herein the and decree should be affirmed Boyer, G., sitting. and the bill should be dismissed. not PER opinion adopted CURIAM: The Sperry, foregoing C., opinion judgment at affirmed of the court. The and decree are J., Gave, J., concur; J., Bland, Dew, bill dismissed. P. sitting. Joseph F. Thomas, and Arline Memmel, Appellant, v. L. Thomas Respondents. 168. (2d) Appeals. City 1944. June
Kansas Court of *2 Embry Embry plaintiff. & H. Martin *3 Gallagher J. B. D. Boy respondents. Williams ’for SPERRY, is a C. This suit on a note. At the conclusion plain- tiff’s evidence the court indicated that he would sustain a demurrer. with,
Plaintiff an set involuntary took nonsuit to file motion to leave aside. ITis motion plaintiff appealed. was overruled and bas alleges petition
Tbe as follows: plaintiff defendants, promissory note “The states their February promised herewith filed “A” 15,1924, marked Exhibit dated pay-to order of L. Meistrell sum Thousand Dollars of One ($1,000), years date, five from date at rate of interest per payable maturity, six cent per annum, annually, until and at eight per per rate annum due. That after the same becomes cent maturity of said note extended to February” was day defendants, paid that the have note 15th interest on said of February, 1932. ‘‘ note; That of said is the owner and holder February 15, principal note, with interest thereon .1932, eight un- per compounded, at the rate of cent due and now ” plaintiff, personally either
Defendants, by answer, their denied that alleged representative capacity, note; in his of said the owner discharged. compromised, settled, paid that the had been compromised and Plaintiff, by reply, denied that said note had been settled. question note in was
Plaintiff’s evidence to the effect that death; A. H. after his that Sauter found the lock box of signed May a written instrument that in said box was died purporting J. Meistrell W. for himself and for Kingsbury Sauter; Meistrell assign IT. and transfer said note A. transactions; plaintiff and Kingsbury partners in financial were the estate the administrators of Mr. Fischer became were *4 Sauter, upon request of the heirs of deceased; thereafter, that directing to said administrators the an order jjrobate court made liquidated not been or turn of estate which had over certain assets said ad- question) and it is plaintiff, (including the to distributed by of the note force possession of plaintiff came into mitted here that probate court order. said signed that same was in evidence and shows introduced The note was Meistrell, to J. 1924, payable February 15, by defendant, dated 1932, the last February 15, paid thereon that interest was to and noted thereon by and having made Meistrell payment interest thereon. payments are’ shown by him. No other is founded on Section mentioned above probate The court order follows; is as which Statutes Missouri .Revised If disposed of. in kind—how partitioned “Property not sold or advantage to the dis- in kind with property cannot be divided such be sold same advantage that the their tributees, it would not be to and a of application upon the administrator, then by or the executor order the shall distribution, the court majority those entitled to of such, same person designate, to be delivered to shall in which by proceed selection minors guardian, shall their to act shall who collect, by otherwise, or notes, suit accounts and choses in action all received distributees, property so in the name of dispose the of all coming possession so his into or under his control to interests, their best collecting proceeds thereof, moneys the distribute all realized parties the person may, entitled thereto. Such in the discretion of the court, required be give Missouri, good bond to the state of securities, such sum may proper, as the court deem the for faithful discharge his duty, payment parties of of entitled thereto of moneys discharged all party may be collected. Said said trust upon his application, upon or application majority of a of heirs, appears probate when it court that it be for the will not interest of (Emphasis distributees said trust be continued.” ours.)
It plaintiff’s contention that the effect of the above-men- probate tioned order, plaintiff’s possession pursuant of the note thereto, to create a trust part, of'which the note forms a and of which plaintiff is the trustee. get meaning at the true language employed
“To in a statute the court must look at purpose the whole act, law it was ’’ change before the enactment and the in the law intended to made. Houston, v. S. 627, l. 636; Young 79 W. 180 Mo. c. v. [Pembroke Hudson, We should also consider the results 632.] suggested, being Legislature construction presumed it intended permit reasonable construction which will of beneficial results. Pacific, v. 658, l. Missouri [Darlington 672.] Prior to the enactment of this section administration of an estate only could out be closed all liquidated, assets were distributed in kind. No doubt it was to correct this condition that section was Adm’r., enacted. Simpson’s 820, l. 42 W. [Rutledge S. language Legislature The of the statute indicates had in mind the creation of a trust. The “trust” is used therein. word twice Indeed, the assets mentioned therein specifically are referred to as Legislature a trust. The that a trust intended of such assets be prescribed; having created in the manner ap- provided,for pointment person of a administer same, follows herein became and is the trustee trust created act probate court under virtue this section. We think the above the effect probate of the statute and of the order- of the court there- *5 language under. is in any There no contained said section that in way conflicts with such a construction. unliquidated
In a case where the and undistributed assets of an estate, remaining the time final settlement, by at of were ordered probate court to be over another turned to the under administrator provisions language the of a of the section statute wherein the is used with
almost identical that used in the cited, section above both the probate Supreme Court trust, referred to the as a assets party and to the to whom were ordered to delivered the Missouri, 1885, page 27; Rutledge Simpson’s trustee. of v. [Laws Adm’s., supra.] defendant, appears view the It the trial court have to therein, plaintiff concurred agent not merely a but was an trustee heirs; of the and that he not in could sue his name but must own in various principals. sue the name the Such a construction the justified language therein; statute is not in view of the used nor permit such a construction its applica- would reasonable and beneficial practice. in tion note; has
Plaintiff, trustee, owner of said and he same legally him; custody. in his It was transferred to fact that it was transferred without material. indorsement not [Welker Hayes, (2d) 1052, l. proper party c. He was the v. 1054.] bring 1939; 850, suit thereon. R. S. Mo. Snider v. to Adams [Section 526; Nicolay Fritschle, l. 77 Mo. Express c. v. Company, 915, l. 85 W. Stroub, Barber v. S. 916.] deposition in a of a wherein defend part There was read evidence compromised ant, Thomas, stated he had and settled the notes, in by having paid $1250 to Meistrell full settlement of four $1000, $1000, which was in the amount of another for the one at bar having each, *6 expressed understanding, rep- defendant’s ing tbe induced on resentation, that said debt ques Mr. inventory tbe note in showing
Tbe tbe estate of estate, among the of tbe tion inventoried and listed assets but, on Probate courts objection, was, in evidence excluded. offered required by them kept of record. Records to made and are courts be 1864, competent. are admissible in evidence when otherwise [Section 649; Galli v. Mitchell, Williams v. l. R. S. Wells, here offered tended to 239 S. W. The record l. property of deceased when prove question was the form an may record introduced was made. Such records it. exception hearsay error exclude rule. It was Boyer, remanded. judgment should he and the cause The reversed sitting. C., not C., adopted PER foregoing opinion CURIAM: The Sperry, cause judgment reversed opinion of the court. The J., sitting. concur; Dew, Cave, Bland, J., J., P.
remanded. Mary Administratrix McClellan, Appellant, Oliver, Alva C. Smith, Simcoe, Deceased, Willard of Amelia Estate Respondent. (2d) et 784. al., 181 S. Appeals. 1943. City December Kansas Court of notes executed two all of said been $500 payee, having made, payable makers same been same in notes were the same transaction. The other executed and delivered a if compromise, in this suit. Such made by parties concerned held not owned'by estate, not the Sauter would time note was at a when the probate court was no order of authoriz plaintiff because there bind 1939; Way 233, R. Mo. settlement. S. ing compromise said [Section (2d) 492, In Pendleton, 190, 85 S. l. 337 Mo. land 494.] compromise was made with that such knowledge it contended at bar is not case approval probate of the o.r or administrators, of, plaintiff or ever heard knew it contended that court; nor is long is claimed have been affected. until compromise, such any further foregoing, evidence, and without of the In view Thomas, written defendant, J. L. plaintiff letter mortgage release the secur- would that he indicated wherein any issue this material to case note, was not of this payment ing The letter did from evidence. been excluded have and should note. rights under plaintiff's a renunciation amount to [Sec- uncon- binding must be renunciation A R. S. Mo. tion release deed a that he would wrote Plaintiff specific. ditional theory that stated note, on the payment secured trust which to cancel renounce not offer He did note had of trust secur- deed release the merely existed, but then debt which