*1 566 injury in It true tbat kind. is injury of paid for an
be 3315 statute, but of section that question scheduled in is not compute compen- to commission quoted directs the which we have and, down the statute laid method sation accordance with the number of fixes the therefore, fairly said that the statute it can be kind, injury of this paid for an compensation that should weeks com- to the commission. computation matter leaving a mere that and found of the statutes has carried out the directions mission weeks, 40of disability permanent an constitutes a injury of this kind by the maximum allowed weeks, 400 being total of 10% statute. commission arbitrary in the refusal nothing
There was com- stipulation. province within the recognize It was that the character proportion or per mission to cent calculate that is injuries specified,” question “bears above injury in to the 1919) there no reason (sec. 3315, R. injuries S. the scheduled in ad- commission why fairly not have done could been be- employee. injury by This receipt of an an vance of the such relative discretion cause calculation involves the exercise quite apparent it is From have said particular case. what we application. is of universal laid down statute the rule calculation, empowered a mere All is make the commission is do injuries “bears that certain nonscheduled proportion that is having recognize injuries” refused to The commission scheduled. pro- which under the stipulation, provided settlement do, power to 1929, it had the Revised Statutes visions section anyone. binding the settlement was judgment concur. affirmed. All Respondents, al., et v. Benevolent Methodist Association Appellants. (2d) 474. al., S. W. et City Appeals. November Kansas Court of *2 Scarritt, Jones <& North,, Stratton Shartel Weightman and Boy for respondents.
Donald Lanib S. appellants. BOYER, By an action in equity plaintiffs C. sought to have court direct the administration of a charitable trust public of a nature created will, to remove the defendant bank disqualified trustee, as appoint a successor trustee, require the formal transfer of cor porate stock and the trustee, reissuance thereof to the new and priority establish a against demand the assets of the Bank of Sweef Springs in the hands of the commissioner of finance. The court found plaintiffs the issues for and found that they were entitled to the prayed, relief granted and said relief in substantial compliance with pra3rer petition. portion A of the decree directed that the Bank of Sweet Springs tlmto forthwith finance, over pay Cantley, commissioner L.S. This $1,104. sum Association, the Benevolent Methodist plaintiff, collected theretofore dividends from to be derived found sum sum was funds, the trust part of as a bank by said received hands in the of said assets fund, a trust adjudged to o" extent to the awith impressed were said Commissioner demand a allowed therefor claim sum, appointed newly Association, the Benevolent Methodist favor of in is the stated manner The allowance trustee. prose- appeal by this question brought in decree part of assets charge 'of in finance cuted Springs. Sweet Bank of points. principal comprise two appeal made contentions holding that erred the court (1) That court (2) question; funds trustee *3 proceed- this claim in allowing a in erred and jurisdiction show not does evidence allege the and petition did the ing because prior to finance of the filed with been that a 5337, Revised Section with accordance in suit of the institution the Missouri of Statutes divergence The evidence. controversy the over material nois There of effect the of views respective by their occasioned is parties of the fol- the show proved alleged and facts substantive The evidence. the County, Saline of Smith, resident a Mary D. circumstances. lowing duly estab- was will last Her January, 1912. in life departed this said of paragraph county the and said court of probate lished words: in these proceeding to material will that hereby direct doI and desire and my will It is 3rd. “Item stock, the being of stock bank Louis St. as known stock my bank Sweet of the Cashier to delivered Bank, be National Laclede for trust Missouri, in County, Saline in Bank Savings Springs Southwest ministers worn-out and of orphans and widows South, Episcopal Church Methodist of Missouri of Conference worn-out orphans and widows, said for in be held to stock said annually be therefrom derived dividend annual and the ministers min- worn-out orphans widows, said for Conference said paid to widows, to said given paid conference isters, by said ministers.” worn-out orphans and 27, 1911. May of the date bears question inwill The testified Springs Sweet of Bank of King cashier Louis The him. knew ever testatrix long before made will stock that the be conceded appears shows evidence sixteen shares by certificate evidenced decedent by
owned St. Bank of National Merchants-LacJede of stock capital in- Springs of Sweet cashier testimony Louis. dicates that this certificate of stock was process delivered to in him the administration; that it was sent-to the Merchants-Laclede National request Bank with a that it be cancelled and a new certificate issued lieu thereof name the Bank Springs of Sweet as trustee under Mary the will of D'. Smith. The new certificate was issued requested. Subsequently thereto the Merchants-Laclede National merged Bank was with Mississippi Valley Company Trust exception that certain assets of the former were withheld and newly corporation retained formed in the name of Merchants- Laclede Company Securities for the benefit of the stockholders of the Merchants-Laclede National Bank. After events, these upon re- quest from the St. Louis companies, the certificate for sixteen shares of stock in the Merchants-Laclede National Bank was returned them and in lieu Mississippi Valley thereof the Company Trust issued its for sixteen paid certificate full shares of $100 each of capital its stock to the “Bank of Sweet Springs, Mo. Tr. Mary U-W of D. Smith.” The Company Merchants-Laclede Securities issued a certif- icate for sixteen shares of stock its par value of one dollar each, appears and it the intention was to issue said certificate to the Bank of as trustee. caption and a following: certificate is the
“MERCHANTS-LACLEDE SECURITIES COMPANY “Incorporated Under the Laws of the State of Missouri. “—Bank Springs, of Sweet Missouri. certify “This is to that Trustee Mary will under D. Smith is the
owner fully paid Sixteen and non-assessable par shares of the $1.00 value of capital each of the stock of Merchants-Laclede Secur- *4 ities Company, . . .” The transactions relative to the issuance reissuanee of stock
are by shown in testimony of the cashier on cross-examina- tion as follows: “Q. You were cashier of the bank at you got the time and that you certificate and then sent that certificate down to Merchants-
Laclede they St. Louis and issued another certificate for the same number of shares —sixteen shares, in lieu of you the one that Say sent? A. again. that over “Q. say, I in the settlement of the estate— (interrupting) A. Oh, yes. “Q. being You bank, cashier of the and as cashier of bank, receipted for a certificate of sixteen shares of stock, you? didn’t A.
Yes, sir. “Q. yon took Then certificate, that as cashier of bank, sent it down to the Laclede National and told them to cancel and issue another certificate place in the of it? Yes, A. sir. “Q. you And told them how to it, you? issue didn’t A. Yes, sir. Yes,
“Q. A. sir. they And did issue it? these “Q. bank office there Then that was retained sir, Yes, on the kept part of bank records? A. accounts were ledgers. individual Yes, A. sir.
“Q. referring I in evidence. am to these accounts busi- “Q. then when Laclede National Bank went out And you otherwise, sent nominally, least, at consolidation or ness— request they certif- down their issued the two same certificate at Yes, they? sir. other, icates in lieu didn’t A. now evidence of that ‘‘Q. they party former exactly And to the same that the issued in? certificate was issued object that; "Well, the best evidence would we
“Mr. Lamm: the certificates themselves. They gone. are canceled and
“Mr. Scarritt: you object sir, Well, Yes, if of this— A. these to all “The Court: way they were issued the are marked.” The two certificates were of stock last mentioned described Springs by found in the Bank of Sweet the commissioner of finance special deputy charge or his took when he bank after it closed 12, They its doors November were claimed assets they the bank and the decree directed that suc- be delivered to the cessor trustee. On the back of the certificate issued Herchants- Company following penciled ap- Laelede Securities memoranda pear:
“$240.00 or Div. Received 11-1-29. 15% 240.00 or Div. Received 12-15-29. 15% 160.00 or Div. Received 1-16-30. 10% 80.00 or Div. Received 3-3-30. 5% 80.00 or Div. 4-2-30. Received .5% 96.00 or Div. 6-1-30. Received 6% 64.00 or Div. Received 1-13-31. 4% 48.00 or Div. Received 10-1-31.” 3% With eight the certificates stock the Commissioner also found certificates, purporting each deposit to be certificate of time for a stated per number months to draw interest; four cent corresponding each eight date and amount with one of items credit, receipts, or of indicated on the back of the stock certificate issued Securities Company. instance, Merchants-Laclede For the first of said certificates is dated November and recites:
“This certifies that King, Louis Springs, Cashier Bank of *5 Mary Trustee under will Smith, deposited D. has forty ($240.00) two payable hundred dollars to the or order of self his successor, as Trustee in current funds on the return of this Certif- properly date, icate 12 per endorsed months after 4 cent interest per annum. maturity. No interest subject after Not to check. Louis King, Cashier.” Tbe other deposit certificates of are of like effect, varying only in date and amount and signed are “G. W. "Weber, A. C.” and “G. W. Weber, A. Cashier.” All of the money represented by certif- these deposit icates of placed in the Bank of Sweet Springs passed general into its assets the same as other deposit. The cashier was witness, but it does not appear from his testimony or elsewhere the record that anyone he or for him claimed that he was entitled the possession of the said deposit certificates of as trustee or otherwise. appears It that the bank maintained upon its books an account income derived from the trust property and disposition thereof. Two sheets from ledger of the bank containing said account were offered in evidence counsel for the Commissioner. The first sheet bears the following title:
“BANK OF SWEET SPRINGS, Sweet Springs, Missouri. “Sheet No. 1. Acct. No. 113. “Name: Louis King, Church Acct. Address: 31.” This account extends from January 2, 1912 to 8, April 1926, fol- lowing which are notations made in March and April, 1930, which indicate balancing of that account. The second sheet ledger offered in evidence bears following title: “BANK OF SWEET SPRINGS, Springs, Sweet Mo. “Sheet No. Acct. 31No. Address_ “Name: Louis King Ch Acct “(Memoranda pencil) written in Board of Finance M E. C South C. E. Davis—Neosho Mo Remit July 1-Jan 1 Bank of Trustee Mary D. Smith.” This account contains entries from 7, June 1926 to including October 1931, and shows a balance of $96 due the trust estate. The receipts in these accounts were derived from the certificates stock issued the Mississippi Valley Trust Company or from the preceding certificate of stock. The $96 amount of in the account and the total amount of time certificates constitute the sum of $1,104. money This was all derived from the trust estate passed into the current assets of the bank and so remained at the time the bank failed. An account of the receipts from the Mississippi Valley Trust Com- pany was kept on the ledger individual and the other receipts were placed on time deposit as shown above. quote We the following ques- tion by the court and the answer:
“By the CouRT: Q. They came in through your general account? No, A. the dividend checks was a check from the Mississippi Valley Trust Company with the Bank of Sweet Springs trustee; we put them to this account and remitted it wherever it would go, and what come from the Merehants-Laclede Securities Company deposited we on time deposit, . .
The bank failed November 12, 1931; this proceeding was instituted January 23, 1932 and the case was heard determined March *6 tbe filed was no that admitted is It only proceeding the that suit and of institution the prior to finance of the bank the time at that shown It was action. pending
brought is the banks other in deposits cash; in $2,700 about on hand was closed there value amounting at face assets paper $2,850, and to about amounted assets paper of worth actual hand. $200,000 were on to about commis- deputy special testimony of the except the shown was not very little of were they that opinion gave his charge who in sioner preferred other of to the amount showing as There was value. demands filing for time the trial of date at the any, and demands, if may be Other facts expired. had not preferences and suits in referred will be appeal on points raised pertinent deemed opinion. of the course the of Sweet that by appellants It contended of express terms by the and that will named in not trustee trustee nominated was the said bank the “cashier” the will proceeds proposition this support of argument in such. acted as lawful was in trustee, being the cashier, theory that upon the legal a had trust; that he of the property funds and of the possession from amounts received bank; that funds deposit said right to but dividends Company were not Securities Merchants-Laelede faith of bad and in the absence corpus the estate part awere deposits said funds time right to make his he in therefor; if claim exists a from accept certificates argu- preferred. The not claim and a common it is plaintiffs behalf of against appel- be ruled point must convincing and the ment is assumed and conduct acts its own the bank First, because lants became property trust to the relationship reference in fiduciary expressly named in fact the trustee maleficio, was not it if ex a trustee upon which is sufficient evidence think the Further, we in will. bank, was to have the the testatrix intent of finding to base who of the individual trustee instead cashier, act as through its Ac- said bank. cashier of occupy the office of given time might at a long before the will made testimony the cashier cording to the not have individual Evidently she this did him. knew testatrix unnecessary to determine the intent of However, it is in mind. disposing of the con- subject purpose for the upon the testatrix question whether the assets sole this ease. The in matter tested this in demand subject to allowed bank are the failed fairly think evidence. We shown the circumstances under case bank did not act cashier of the record from the dedueible behalf, acted for behalf own but and in in his trust reference through all times bank at its officers that the bank and created agents act trustee of the and did to act assumed agents original instance of its At the Mary D. Smith. the will certificate of bank stock bp held the testatrix was reissued to the “Bank of Sweet Springs trustee, Mary under the will of D. Smith” and when this certificate exchanged for new they certificates were *7 issued in like manner. All evidence of the property belonging trust and all income receipts or of money belonging to said trust funds were at all times in custody the possession and of the bank. The last page of the bank account in which the funds kept were the bore notation “Bank of Sweet Springs Mary Trustee D. Smith.” All re- ceipts appear to have been representative transmitted to a the beneficiaries of except the trust $96 in this account and the total sum of $1,008 represented by certificates of deposit time the which cashier of the bank issued payable or had issued to himself. The amount represented by deposit money the time certificates received from the Company, Merehants-Laelede Securities and the cashier money part claimed that he represented that said “understood” a rea- instead of dividends and fund Qt 1)y oí WlH, son cíirecllOH ftlé and, retained it absence it in the bank on time money certificates. When this was received we think it was received the bank and not the cashier in in- his capacity. dividual All of the sums so received are noted as dividends on the back of the stock yielded certificate which them. All money went into the bank mingled and was with other its assets and wholly it is immaterial whether this money represented technically dividends or whether it was a corpiiis of the estate. The bank it and received held it as a trustee would hold other like funds. It acquired right no or title to money belonged which the beneficiaries of just the trust the same as the other assets of that trust. The principles equity upon which may trust funds be traced into from recovered the assets of failed banks many have been times ‘! expounded and the applicable pronounced. rule Missouri follows the that, rule if a trust fund is proved to have deposited mass, been in a and wrongfully and illegally mingled therewith, though even indis tinguishable, may it be recovered and taken from the estate of in solvent, ground on the went into, increased and swelled volume of the insolvent’s assets, chargeable and it is against in solvent estate to the amount of the converted preferred fund a demand. ” Attorney-General ex rel. [State v. Page Bank, 322 Mo. l. c. The facts in this bring 36.] case it within the rule stated. The funds sought to be were recovered trust funds wrongfully appropriated by the bank and said augmented funds the assets which passed to the commissioner of finance. The bank right had no to
money right of the Commissioner could not superior be to right of the bank. On that state of facts the money could properly be recovered as demand. aof the claim though that even further contend appellants But according Section proceed did not plaintiffs
preferred nature court is that made point 1929. The Missouri Statutes Revised equi- in this demand preferential adjudge a power right or filed having previously been without claim proceeding table provides referred statute The section Commissioner. part: ap- required to commissioner within the time “When months six within at time expired reject has claims prove or has not duly filed has been whose claimant thereafter, a an maintain may institute approved been shall No action banker. corporation or such against thereon action commis- while the banker corporation or against such maintained brought within business unless itsof affairs possession inis sioner *8 or In all actions section. in this specified of limitation period while corporation or banker such against instituted proceedings business, plain- property its and possession of inis upon which claim that the prove allege and required tiff shall be days elapsed sixty have duly filed and that instituted the action that said claims and filing said of time for expiration since the ’’ approved. not been has allege that a claim for not bar does case at petition in the ad- Commissioner, it was with was filed sought preference taken other no action was and that filed claim was that no such mitted However, petition suit. pending of the the institution than filing Com- claims with the for time expiration of the filed before suits, filing time for expiration of the before the as well as missioner any distribution to authorize course, the time before likewise, of Commissioner, bank, defendant had arrived. of assets charge personal commissioner in of the waived deputy special voluntary appearance in their summons and entered service of All appearance. defendants entered their defend- the other cause delay expense thereby to avoid a desire occasioned ants evidenced procedure. expeditious a for Conse- by useless formalities and desire quently elapsed tried determined before the time had the case priority for the assertion demands. divergence opinion in the appellate
There has been a courts of foregoing'section to whether the of the applies this State as statute recovery procedure a of trust funds. The St. Louis Court of apply it Appeals has held that does all claims. Mills [Bowersock Co., 298 v. Citizens’ S. W. & Power Co. Trust And this court 1049.] apply an recovery held that does not action for the has it of Exchange Trust Co. v. Farmers’ Liquida Bank In funds. [Commerce tion, (2d) has S. W. The latter case been certified to the 406.] Supreme for determination of the conflict Court where is now pending. There much in present case to distinguish it from both of the cases above mentioned. In the first place, this is an in dependent action invoking the plenary powers of equity jurisdiction to establish a trust, remove a trustee, obtain appointment of a new trustee, and for directory orders to conserve the corpus of a trust estate and to mold its administration; and incidentally to es tablish a priority demand for a part of the trust estate in the custody of the commissioner of finance. It appears agreed to be equity jurisdiction has been properly invoked parties over all and the entire subject-matter except the subject of a claim. In present case none of plaintiffs or relators any right asserts aas matter of law to the fund in question. They appear representative in a capacity and in the interest of a charitable trust of public nature. There was competent no trustee at the time the suit was instituted, at or time after the failure bank, of the qualified to file a claim until after this suit was tried and a appointed. trustee The case was voluntarily submitted to the court. There was no plea of limitation or of abate ment contained in the answer of the bank and of the Commissioner, and there was objection during the trial that the court was im properly hearing the claim for preference, and this claim was the mainly controverted subject in the case. The court was properly vested jurisdiction of the subject-matter whole and of all the parties to the possessed action and power to adjudge and deter mine of the issues but all rights parties inter sese according to the equities of the case. When a court of equity is once possessed of a cause it proceed will dispose of all issues raised in said cause and to administer justice complete to all the *9 parties. [Waddle v. Frazier, 245 Mo. 403; Hurst Automatic Switch Signal & Co. v. Co., Trust 291 68, Mo. 54, 8; S. W. Mc v. Gowan Parish, 237 U. S. 59 L. Ed. 21 C. J., pages 134, 138.] The generally accepted just rule stated should be applied to the case in hand. It is manifestly just to do so under particular the facts in evidence. opinion It is our as expressed heretofore in Commerce Trust Co.
v. Farmers’ Exchange Bank In Liquidation, supra, that the sections of the applicable statute to the filing of (5333 claims 5337) to do not apply to a proceeding to recover trust funds. However, ruling the in this case need placed not be upon ground. justified We are placing it upon ground equities, revealed on the accepted prac tice in equity, and on the ground further that there has been a sub- stantia] compliance with the statute in filing reference to claims if the statute applies. And further, that under the circumstances of time, appearance, appellants and trial waived the necessity of a formal presentation of the claim to prior Commissioner to suit. pur The pose filing a claim with the Commissioner is to him notify of its gain speed delay and avoid time, to stated existence within the suit case this In administration. and in the claims, settlement Com filing of claims. specified for the time within was filed his entered summons thereof, waived notified
missioner was filing of thereby waived think that he We voluntary appearance. demurrer was no There prior suit. him the claim hearing upon stay a move to abatement, no plea in petition, no appointed trustee the new so moved appellants If had the claim. time Commissioner with the have filed a claim could court brought mat would have which upon the claim a suit reinstituted of the possessed already very tribunal of the ter the attention upon effect whatever had have circumlocution could cause. This power had no rights in interest. The Commissioner party question to refer that and could priorities to determine filing Under the circumstances 5336, R. S. Mo. court. 1929.] [Sec. equity nor entirely law useless. Neither been claim would have of a said have What we performance useless or futile act. requires of a Bartlett very subject in of a similar with the discussion is in accord entirely just fair and seq. 316 Mo. c. 136 et It is McCallister, l. v. adjudged. properly entertained parties to treat this case as all injustice to gross day be a had their in court. It would parties give thereby ground proposed technical deny on the the claim equities case substance, of the precedence over and sacrifice the form formality. claim. too to file another of vain It is now late on the altar meet however, decree, one which does not There is feature approval payment and that is time and method of our the said commands. It is ordered and decreed “that defendants pay Commissioner, Cantley, forthwith of Sweet S. L. plaintiff Association the sum over to the Methodist Benevolent Dollars.” One The court was cor- Thousand One Hundred and Four allowing preferred demand, but the order to rect in sum as a might pay being preferred “forthwith” result in over other this general against like claims well as over the bank. Suf- claims claim, pay assets reached the hands of Commissioner ficient. but at priority un- the time trial the amount of other claims were expired, known. filing The time for them not had the value ascertained, assets of the had not and the time distribu- been tion of assets Under think arrived. such circumstances we payment that an premature order for immediate and that *10 preferred order paid demand unon should have been that it be regular the same manner other demands and in by course of administration the Commissioner. The allowed claim upon placed eauality should have been an claims. The other like payment accordingly judgment order should modified and the so modified should be affirmed. The Commissioner recommends. so C., Campbell, concurs. PER foregoing CURIAM: The opinion of BoyeR, C., adopted opinion as the of the court. The order for the payment
is modified in accordance with the opinion judgment so modi- fied is affirmed. All concur. Blanche D. Schmidt, Appellant, v. Aetna Life Co., Insurance Respondent. (2d) S. W. etc., 431. City Appeals.
Kansas Court of 21, November c&Harlan for appellant. Crawford
Morrison, Nugent, Wylder Berger c& for respondent. ARNOLD, J. This is an -action to upon recover a certificate of life insurance upon issued and under provisions of a certain group policy.
Defendant is an insurance corporation organized under the laws of the State of Connecticut, having its home office at Hartford State, said duly authorized do business State of Missouri. The record discloses that on 14, November 1927, defendant issued delivered E. M. Milton & Sons companies affiliated Sedalia, Missouri, group policy of insurance, for the benefit of certain of their employees who accept would by benefits thereof agreement with said employer, among whom John Schmidt. Under and by virtue of said group policy, a 89, No. certificate issued employer to said John Schmidt, November insuring his life for the $1,000, sum of naming wife, his Blanche D. Schmidt, plaintiff herein, as beneficiary. Under the terms of said insurance, part of the premium was deducted employer from pay of the employee, and the remainder premium of paid employer who remitted the total premium insurer.
On or about day the last of May, 1929, the said John Schmidt left