39 Mo. 292 | Mo. | 1866
delivered the opinion of the court.
This was a petition in equity by the administrator of one of several distributees of the estate of their mother, not making the others parties, against the defendant as trustee in an absolute and express trust under the will of the deceased father, who had been administrator of the mother’s estate, to set aside an alleged settlement of the administrator’s account in the St. Louis Probate Court, on the ground of a false and fraudulent statement of the account, whereby the distrib-utees had been defrauded of their respective shares in the distributable surplus; and the defendant was charged as having received this surplus from the administrators of the estate, when the estate was settled under the will, to be disposed of in accordance with the trust therein contained. The party represented by the plaintiff was not one of the beneficiaries in the trust created by the will.
The defence rested upon the several grounds, first, that the other distributees were not made parties; second, the statute of limitations; third, that the fraud was not proved; and fourth, that there was no evidence of any settlement or allowance of the account rendered by the administrator.
As to the parties, the petition proceeds upon the assumption .that the other distributees are represented by the trustee defendant as beneficiaries under the trusts of the will, and upon the allegation and proofs that all the other distributees of the mother’s estate were such beneficiaries and so represented. To this it may be answered that as beneficiaries of the trust merely they were not therefore represented, also, in their character of distributees of their mother’s estate.
The statute of limitations was no bar to the suit. The cause of action did not accrue to any person who had capacity to sue, until an administrator of the deceased distrib-utee had been appointed — Miller v. Woodward, 8 Mo. 169; Polk v. Allen, 19 Mo. 467. To a suit by a distributee for his share against an administrator, holding the fund in trust, the statute of limitations does not apply. No lapse of time is a bar to a direct trust, or a fraud, as between trustee and beneficiary — Ruby v. Barnett, 12 Mo. 3; Decouche v. Savitier, 3 J. Ch. 190; 2 Smith’s Eq. Jur. 62. There is no express statute provision here which has a particular application to a case of this kind, and modifies the rule of equity. This was not a suit upon any bond, or other demand, which was governed by any special statute.
As to the three years’ bar of the administration act, this was not an ordinary indebtedness or demand against the estate, but a trust fund held in trust for the distributee; and the distributee being dead, there was no person in exist
The other grounds of defence may be considered together. It is insisted that there was no proof of any settlement, final or other, nor of any fraud in the account settled. The only evidence which was adduced to establish these facts consisted in a copy of the affidavit and inventory, showing a debt and interest due to the estate from the estate of one Nash, an abstract of demand allowed against the estate of Nash for this debt, and a copy of an account rendered by the administrator by which it appears that he had charged himself with the amount of this debt and interest as collected from Nash’s estate, and credited himself “ by amount of my demand allowed by this court against the estate of John T. Nash, deceased,” the same sums for principal and interest, and a balance was struck in his favor. This paper is certified from the probate court to be a true copy of “the account rendered by said administrator, as the same now remains of record in the office of the judge aforesaid.” This was all the proof. It merely shows that this account rendered was handed in to the judge of the court and remained there among his papers. It is not even filed. There is nothing to show that it ever became a record, nor that any action was ever taken on it by the court, much less that the account so rendered was ever allowed by the court in any settlement whatever. A settlement must be the act and
Judgment reversed, and the cause remanded, with leave to the plaintiff to amend his petition.
The causes of demurrer assigned were, 1. That petition did not show a cause of action ; 2. That the suit should have been brought against the personal representatives of P. M. Dillon.