Seehorn v. Gaugh, 11 S.W.2d 750

Seehorn v. Gaugh

11 S.W.2d 750

Mo.

1928

Check Treatment

THOMAS J. SEEHORN, Administrator of Estate of GEORGE G. GAUGH, v. WALTER W. GAUGH and GEORGE M. GAUGH, Appellants, and KARALEE RANKIN

Court en Banc

November 24, 1928

11 S. W. (2d) 750

The court made its order, cancelling the conveyance in view of all the evidence in both cases, upon the finding in this case that the Courtney farm was the property of Judge Gaugh, and, evidently in view of the finding in the suit of the administrator that the seventy-seven shares of stock of the Queen City Company were also the property of Judge Gaugh at the time of his death, and belonged to his estate. We hold the plaintiff failed to establish a resulting trust in the Courtney farm, and so much of the decree is reversed; but, we hold that the conveyance should be cancelled in so far as it operated as an assignment of the interest of the respondent in the seventy-seven shares of stock of the Queen City Company. An accounting can be had as between the respondent Maude Gaugh and the appellants, and appropriate orders can be made to that effect. The court can modify the judgment herein as heretofore indicated, taking into consideration its decree in favor of the administrator in the other suit, affirmed on the appeal in that suit.

The judgment herein is reversed and the cause remanded for modification of the judgment as above directed.

PER CURIAM:—This cause coming into Court en Banc from Division One, the foregoing divisional opinion by LINDSAY, C., is adopted as the decision of the court. Ragland, Atwood, Walker and Gentry, JJ., concur; Gantt, J., concurs in the result; White, C. J., and Blair, J., dissent.

Hackney & Welch for appellants.

A. N. Gossett, Ira B. Bruns and John I. Williamson for respondent Seehorn.

John S. Wise, Jr., for respondent Karalee G. Rankin.

LINDSAY, C.—This is a suit by Thomas J. Seehorn, as Public Administrator of the Estate of George G. Gaugh, deceased. The essential charge of the petition is that defendants Walter W. Gaugh and George M. Gaugh, sons of the deceased had wrongfully appropriated, taken and held to themselves certain personal property belonging to the estate of deceased, and had destroyed records and books showing the ownership of the property. The evidence was especially directed to the question of ownership of seventy-seven shares of the capital stock of the Queen City Building & Investment Company, a corporation, and to ownership of the business and certain chattel property of the Union Printing & Binding Company, which is not a corporation.

Under the allegations of the petition it was prayed that defendants be decreed to hold said property in trust for the estate; that the alleged fraudulent transfers of certificates for said shares of stock be canceled, and an accounting of income and profits be had. There was a finding and decree in favor of the administrator, as to said shares of stock.

This is a companion case to the suit of Maude F. Gaugh, Respondent, v. George M. Gaugh (Impleaded with Walter W. Gaugh et al.), Appellant, and Karalee Rankin, Respondent,

ante page 414, wherein respondent Maude Gaugh, widow of the deceased, sought to establish a resulting trust in favor of herself and the heirs of the deceased, in certain real estate, the title to which stood in the name of George M. Gaugh, and wherein also she sought to cancel the conveyance made by her to George M. Gaugh of her interest in the estate of the deceased; and Karalee Rankin, by her cross-bill in that suit, also sought to establish a resulting trust in said real estate.

The two cases were heard together, and the appeals taken were heard and submitted together upon a common bill of exceptions. The issues made by the pleadings, the evidence, and the conclusions applicable to both cases, are stated in the opinion in the case of Maude F. Gaugh, Respondent, v. George M. Gaugh (Impleaded with Walter W. Gaugh) Appellant, Karalee Rankin, Respondent,

ante page 414, and reference is made thereto, for the conclusion announced and decisive of this case. Under what is there stated, the judgment herein, in favor of the administrator for the aforesaid shares of stock, is affirmed.