199 Mo. App. 515 | Mo. Ct. App. | 1918
This is a suit in equity, by which it is attempted to charge the assets of the estate of Sylvester J. Fisher, deceased, in the hands ■ of his administrator, with a special lien against those assets, on the claim that moneys collected by Fisher in his lifetime, as rentals on the property of plaintiff, went to swell and increase the assets of Fisher during his lifetime, and had passed into the possession and control of defendant as administrator, and “are now in the possession and control of said administrator and so mingled with the funds, property and assets of said Fisher in his hands that it is not possible to separate, identify or distinguish plaintiff’s funds in his possession, or that said funds of plaintiff were paid out by said Fisher during his lifetime in the course of his business and used in paying his debts and obligations of various kinds, thereby enhancing the value of the estate received by this defendant as administrator and plaintiff declares that it believes that either said funds of plaintiff as aforesaid actually passed into the hands of said administrator as aforesaid, or that said funds of plaintiff were paid out by said Fisher during his lifetime as aforesaid, but this plaintiff is not informed as to which of said alternatives is true,” and that the estate of Fisher is insolvent and that there are large claims, exceeding its assets, against it.
The cause was tried before the court as in equity.
At the trial of the cause the defendant administrator, being sworn as a witness in behalf of plaintiff, plaintiff offered and read in evidence the answer of defendant, as also a former answer, but that is not in the abstract.
Counsel, after stating the formal-averments of the petition as to incorporation of plaintiff and appointment of defendant, and that he is now in charge of the
He father testified that claims had been allowed against the estate up to October 16, 1913, amounting to $65,660.98; that of these claims there was only one first-class claim, which was for funeral expenses, amounting to $705, and that there was only one second-class claim for medical services, amounting to $184, and that there were no claims of the third and fourth class, but that all the claims allowed, except the two mentioned, were of the fifth and sixth class.
He testified further that there were no suits pending in which a similar claim for preference was made.
On crpss-examination defendant testified that he had received no money out of the safe or from the National Bank of Commerce, representing money collected for the account of Fisher, himself, or any of Fisher’s clients. Practically all of the general or fifth and sixth class claims allowed against the estate were similar to plaintiff’s, that is to say, rents collected by Fisher and deposited and mixed with his personal funds.
He further testified that a judgment was secured by Joseph Wright executor of one Susie M. Eodgers, for $13,000, including interest and costs, and that judgment was against Fisher personally and against the Fisher & Company Eeal Estate Company, a corporation ; that it was a reference case and the case was pending in'court on the exceptions to the referee’s report at the time of Fisher’s death and culminated in judgment after his death. That between January 3rd and January 20th, Fisher collected for plaintiff, on account of rents, the sum of $1056.66, and that amount was placed in Fisher’s safe or deposited in the Bank of Commerce or both, and mingled with Fisher’s personal funds and the funds of other clients; that during January, 1912, and for many years prior to his death, clients of Fisher were paid by him either in cash taken out of the funds so mixed and deposited in the safe, or by check against the funds so mixed and deposited in his bank accounts; and a part of the personal expenses of Fisher were also paid out of these funds in the same way. That on January 1, 1912, Fisher had in his safe the sum of $130.90, and in bank $574.95, being his own money, in addition to cash in the safe and on deposit belonging to clients; that during the month of January, prior to his death, Fisher, in addition, collected for his personal account and mingled with his clients’ funds the further sum of $561.11; that during the same month he collected for his clients alone $30,003.86, $4651 of which amount was collected between January 20th and 23rd.
Witness Robinson, continuing, testified that the value of the stock of the Fisher & Company Real Estate Company, which he held amounted to about $16,000, and was in the form of cash; that the corporation was a defendant in the suit brought by Wright, executor of Susie M. Rodgers, in which case judgment for $13,000 was recovered ; that it was also a defendant in the McCausland Case, which was for about $30,000, pending before a referee ; that the McCausland Case did not proceed against Fisher as an individual or against his estate.
The above and foregoing, together with the answer, was all the evidence introduced or heard in the trial of the cause.
The answer, in substance, admitted that Sylvester J. Fisher died January 23, 1912, testate; that by the course of dealings between plaintiff and Fisher, the latter would collect rental from the building' and remit to plaintiff, after deducting his commission of one and a half per cent, as such agent. It is also admitted that it was the practice of Fisher in his lifetime, as hereafter more fully set forth, to mingle with his individual funds and trust funds collected for numerous other patrons, the rentals collected for plaintiff. It is further admitted that the estate of Fisher is insolvent and that the claims that have been allowed against the estate aggregate a sum many times larger than the assets of the estate. Further answering, however, the defendant denies that the money mentioned in the petition as having been collected and received by Fisher for plaintiff, or any part thereof, has been received, or came into the hands of defendant since his appointment as administrator, and defendant denies that the moneys of plaintiff and of other customers of Fisher and his personal funds which were mingled and mixed in said depositories, or any part thereof had been received by defendant since his appointment as adminis
For salaries of employes,.................$843.85
For board of himself and family and other incidental expenses,...... 711.16
For nurse for himself,....................110.00
For maturing interest on personal indebtedness, .. .......................512.30
For advertising property for sale and rent in a newspaper,..............100.00
For premiums on life insurance policies in favor of his wife,...... ....... 55.25
That on and between January 20 and 23, 1912, Fisher paid out of the fund so deposited in the safe and in the bank, for his personal expenses, the further sum of $52; that during the month of January, 1912, and prior to his death, Fisher paid out to his patrons, whose money he had collected and deposited in the safe and bank above mentioned, the sum of $25,535.86; that on the day of his death, to-wit, January 23,1912, Fisher gave to one Lassen a check for $3400.87, drawn on the mixed fund deposited
There is a reply to this, and on the conclusion of the trial the court dismissed the bill. Filing a motion for new trial and excepting to its overruling, plaintiff has duly appealed.
Appellant assigns for error the action of the court in dismissing plaintiff’s bill and in not entering a decree in favor of plaintiff, and in not ordering plaintiff’s claim to me preferred above the claims of general creditors of Fisher’s estate, and in dismissing plaintiff’s bill without even decreeing a judgment in favor of plaintiff for the amount sued for and admitted by the defendant to be due.
We have concluded, on an examination of the authorities, that the action of the trial court in dismissing the bill is in accordance with the holding of our Supreme, Court in Bircher v. Walther et al., 163 Mo. 461. 63 S. W. 691, and that of our court in Pearson v. Haydel, 90 Mo. App. 253; and Hunter v. Mathewson, 149 Mo. App. 601, 129 S. W. 749.
In the Bircher Case, which went to the Supreme Court from our Court, as see Bircher v. St. Louis Sheet Metal Ornament Co., 77 Mo. App. 509, it is said by our Supreme Court that in the case of Paul v. Draper, 158 Mo. 197, 59 S. W. 77, the court had occasion to examine all the Missouri cases on the main question in hand (which was as to the right of plaintiff to a preference out of the assets in the hands of an assignee), and while in Paul v. Draper, it did not become necessary to formu
“If trust property has been mingled by a company with its own property, so that the one cannot be distinguished from the other, and it transfers its property to a trustee or assignee for the benefit of its creditors, a court of equity, as between the cestui que trust and the personal creditors of the company making the assignment, will follow the trust property or its proceeds, and if the same can be traced into the property or assets transferred to the trustee or assignee, will impress on such property or assets a lien in favor of the cestui que trust to the extent that the property or assets transferred have been swelled by the trust property or its proceeds. But, if there is no evidence that the trust property, or its proceeds, went to swell the company’s assets transferred to the assignee for the benefit of creditors, but on the contrary was paid out on the debts of the company and for its current expenses, this rule cannot be invoked, and a court of equity ought not to decree the claim of thq,cestui que trust to be a preferred claim over that of other creditors.”
This is a fair synopsis of the opinion, which is an elaborate discussion of the rule and the principle upon which it rests.
Learned counsel for appellant challenges the deduction drawn from this Bircher Case and claims that it is inconsistent with what was said by our Supreme Court in Harrison v. Smith, 83 Mo. 210; Stoller et al. v. Coates, 88 Mo. 514; Evangelical Synod of North America v. Schoeneich, 143 Mo. 652, 45 S. W. 647; and Pundman et al. v. Schoenich, 144 Mo. 149, 45 S. W. 1112. It is true that the Supreme Court, in the Bircher Case, did not refer to these cases, and that what is there, as also in Paul v. Draper, held, is not in line with those and earlier cases, but the Supreme Court had before it the opinions of our
Our court in Pearson v. Haydel, above referred to, did, however, examine not only all the eases cited by counsel for appellant from our own courts, but those of other jurisdictions, and in conclusion followed the Bircher decision, specifically holding that the rule in equity requires the trust fund or its proceeds to be mixed with the mass of the insolvent’s estate in the hands of his assignee, trustee, or other representative, in order for a preferential lien to be declared, and holds that the fact that it was at one time wrongfully mingled with it, is insufficient to authorize a preference. We cannot improve upon, .and it is unnecessary to enlarge upon, what is there so well said by Judge Goode, and we refer to that decision as here conclusive.
In Hunter v. Mathewson, supra, Judge Goode, speaking for our court and discussing the rule here applicable very fully, held that the trial court evidently had in mind the doctrine that the owner of a fund may follow it into the hands of an assignee for creditors and secure a lien on the assigned assets if he can show his money passed to the assignee, citing Paul v. Draper, supra. But, said Judge Goode, that doctrine is not applicable when it is clear that no money belonging to the plaintiff came into the hands of the assignee.
In the case at bar, it affirmatively appears that none of this money passed to the administrator in this case. All the money that he had was derived from the sale of real estate and personal property, and even that was real
It is said, however, by learned counsel for appellant that if plaintiff is not entitled to a lien for the full amount of his claim, it should, at least, be entitled to a' lien to the extent of $513.30, the amount used by Fisher, as it is said, in the payment of his mortgage indebtedness. The trouble with this contention is, there is no evidence in the ease to sustain this proposition. All that the evidence shows as to this is that that amount of money was paid out by Fisher on his personal account, but it does not appear by the evidence in the case for what purpose or on what account it was paid out.
It is further claimed by learned counsel for appellant that the trial court should have allowed plaintiff’s demand “as a general claim,” and certified it to the Probate Court as such. We are not aware of any statute of our State that provides for what counsel calls ‘ ‘ a general claim, ’ ’ no such term being used in the classification of demands against an estate. Furthermore, we are aware of no rule of practice, or statute, by which, in a case such as this, on the failure of the claimant to establish his demand as a preferred claim, it is within the power of the circuit court to order it certified to the Probate Court for allowance. Finally, and conclusively on this proposition, no such point was made in the trial court. It is true that in Pearson v. Haydel, supra, our
The judgment of the circuit court should be and it is affirmed.