*1 pointed out that Atl. Co., Branch 258 Pa. it Transit result right a lease would a denial of absolute to renew And in right property to the lessee. of a valuable destruction demonstrated, right pur- case, subsequent events have this may be ruin- right and its denial well building is a valuable chase the had Reising have some other hand Mrs. ous to Mr. Stein. On the during months selling building the first three compelling reason for subsequent months. However obtain in of the lease which did not losing harsh to consequence is bound to be the case is decided the find in the extrinsic circumstances and party. But we are unable to unequivocally demonstrating any upon the entire record fact meaning option was other parties or the intention they conditionally expressed than the lease. have it factors, option apart
Considering all three from its con text, circumstances, the lease as a whole and the extrinsic it can preferential Mr. had a conditional or be said that Stein building. option purchase Accordingly, absolute judgment performance is specific reversed. The foregoing by Barrett, C., adopted
PER opinion CURIAM Douglas opinion Tipton, Conlding, Banc. as the the Court en Leedy Clark, JJ., Ellison, JJ., Uycle, C.J., concur; dissent. c. a. of the Estate of Gustav
Arthur U. Administrator t. Simmons, T. Franz, Deceased, Appellants, v. Jesse A. and G. A. Buder, Sophie Franz, Estate of Friday, Administrator ad Litem of the Deceased, (2d)W. 90. Respondent, No. 41257 224 S. Two, September 1949.
Division Overruled, Rehearing to Transfer to Banc Motion for November *2 Taylor Sandison, Harry Blanton G. Buder-, G. A. Jr., appellants. *4 Friday
Jesse T. F. J. Doerner for respondent. Simmons, August 23, 1943, Arthur as U.
BOHLING, C. On Franz, deceased,:and A. c. t. a. of the estate of-Gustav Administrator Buder, Sophie of the Estate of G. A. as Executor G. A. Buder sued 'due on Trustees’ deceased, principally a claimed balance Franz, course, T. Sophie Franz trust estate. In due Jesse commissions of the Franz, Sophie litem of Estate of de Administrator ad Friday, as Buder, G. A. ceased, party defendant lieu of-said was substituted ap refer convenience we sometimes Executor aforesaid. For Trustees, respondent and to as defendant. plaintiffs and as pellants as plaintiffs’ petition was sustained. motion to dismiss Defendant’s plaintiffs’ contends action is barred Upon plaintiffs’ appeal, defendant limitations,. petition fails to general ahd that said granted. be upon claim which relief state petition, amended up plaintiffs’ second- which is This review is The first count out verbatim the Franz counts. sets two January instrument, the settlor 1909. The executed (stocks, bonds, cetera), notes et consisted of trust estate securities *5 absolutely Franz and securities in which by Sophie the will owned husband, a Franz, D> her deceased vested her with life Ehrhardt children; Among things, ten other to his she only, remainder estate and G. A. Buder as of said Gustav A. Franz Trustees trust appointed (we.understand,-said herself and others remainder- and named estate amounts pay specified were to The Trustees men)- as beneficiaries. semi- to account' -months, and were every three the' beneficiaries to for was to continue The trust of said trust. annually on the condition Buder A. and G. April Franz. She died Sophie the -life of May 14, 1930. of her Estate on Executor appointed approve the- court (1st) that the first count was prayer said hearing court, a after Trustees; (2nd) that of said final account “reason- rendered, fix and allow the respecting the services facts under all the just compensation for such services able and defendant (3rd) the court case”; direct the circumstances of this take- may allow and to court plaintiffs “such sum” as the pay approve court accounts; (4th) that the credit-accordingly in his Executor of the delivering to the Trustees in plaintiffs action of belonged to said Franz, deceased, such assets as Sophie Estate of plain- audit, report or account” of final “as disclosed Estate (5th) certify probate court; to the Trustees, and the same tiffs as developed- will be material facts general equitable relief. Other the-opinion. in the course -in sought impress assets petition said
The second count-of and an ac- plaintiffs in favor of of defendant with the hands of,their claimed interest in certain plaintiffs counting defendant assets et cetera. involved. jurisdiction, have is because
If we it amount say jurisdiction citing we have be Trustees, authority, ‘‘ accounting Franz involves an appeal cause the Estate $1,800,000.00 and Trustees’ reason totaling in excess of valuation jurisdiction given $7,500.00.” Our has compensation in excess of able government of a concern, for “under a constitutional the acts much prescribed organic" usurpa-, law are powers court not within grave by a court of last resort tions, and done when becomet ’1 menace. appellate jurisdiction jurisdiction when turns on the We have dispute in costs, “where the amount involved exclusive amount seventy-five (Emphasis hundred dollars.” ours.) the sum of exceeds $1,800,000.00” “a valuation of the estate has does not The fact that dispute $7,500.2 exceeds the amount establish that dispute-respecting compensa Whether the amount Trustees’ $7,500 is more involved. The trust did tion exceeds instrument appeal general compensation. Courts have specify appellate their appellate has limited jurisdiction. This court and its speculation or conjecture, to be left to jurisdiction is not burden 279, 284, Vordick, S. W. 592. § 1 Vordick v. 3, 13, p. Const.-1945, V, Laws Art. 2 Mo. R. S. v. Smith, A.; Higgins 346 Mo. Mo. R. S. S. W. 2d Fleischaker, 149, 151; 172; Fleischaker v. W. 2d Toberman, 613, 134 U. St. Trs. Co. S. W. 2d 45. Louis *6 818
being party asserting the here.3 "Where defendant prevails in for monetary relief, petition particularly actions the ordinarily prayer amount resorted to for a determination of the filing in dispute.4 By plaintiff usually aban petition amended prior petition dons the and all matters not restated in the amended petition.5 pray just compensation.” Trustees “reasonable and Our (Laws 1943,
new pp. seq.; Civil Code 353 Mo. R. 847.1 A., et S. §§ seq.) et provides recovery money demanded, 36: “If be § allegations amount shall be stated.” There are that after the death Sophie by Franz assets of segregated the trust estate were by Trustees into Franz Sophie absolutely the assets owned Franz, deceased, assets of the Estate Ehrhardt D. in which only interest, Franz had life com- that Trustees claimed per missions However, “five cent on the of each of assets said trust estates.” showing
amounts are not stated and find we no affirmative petition in the second $7,500 amended in excess of remains in dispute respect compensation. with to the Trustees’ Code, supra,
Our new provides Civil 44: “An to a exhibit § pleading part purposes.” is a thereof for all Barnett v. Prudential (Mo. App.), 317, Ins. Co. of 194 2d Am. S. W. to its Prior 318[1]. pleading enactment filed with a were part exhibits not a thereof for determining sufficiency on demurrer.6 There is pleading no to the petition. exhibit attached second amended presented The case was in the trial court here theory on the original petition that matters disclosed the Trustees’ and the ac A, as Exhibit which thereto is the count attached account of subject approval might be matter record that court, apparent This is from were for consideration. presented record and from by the to us for review filed briefs supra, 3 Higgins Smith, 2 and authorities v. note cited. Ass’n, 557, v. Fennimore Bank N. & Co. Mo. 4 Gast L. 49 S. W. 147 (Mo.), 886; Wagner 175 S. United Elev. Co. v. Sutherland W. & G. v. 977, 865, [1, 2]; Mederacke, 340 Mo. Ramming, 192 S. 354 Mo. W. 2d 866 Johnston v. [1]; Douglas, 2d 466 v. 100 S. W. Sofian 324 Mo. S. 23 W. Kane, [1];
2d v. 146 48 W. Kane Mo. S. Co., v. 5 New First Bk. C. L. Rhodes Produce Nat. 332 Mo. 742, 744[1,2], cited; (Mo. S. W. 2d authorities State ex rel. v. Hiller ; O’Kelley App.), (Mo. App.), Wise 133[2] 295 S. W. v. 198 W. S. 2d 1.04(h) (352 appendix i); 31 our Rule Consult Mo. [1-3]. Laws p. 369, 36, 43, 44; A., 847.36, 847.43, R. S. 847.44. §§ Haphe, [10]; ex 6 State v. 31 W. 2d rel. Pacific Co., & [6]; Lime & G. Co. Missouri Br. I. 286 Mo. 226 S. W. Langston, 826, 834[21]; Meyer Odom 173 S. W. Mulligan (Mo. 924, 928[3]; App.), Houts, 175 S. Pleading, W. 2d Missouri n. 95. generally Appellate courts as well as the brief of defendant. them theory.7 parties to their trial hold the faults of the itself, subject to the original petition, within juris- establishing appellate petition respect with
second amended A Exhibit diction, but in that it refers to and has attached as differs *7 Trustees’ account of record. account, detailing Considering A, find, we this Exhibit 22, 1931, original peti- in the it and is referred to that is dated June of their admin- tion as “a final statement of account [the Trustees’] Trustees”; and in istration, management stewardship as such account”; or under petition report, the amended as “final audit that Belonging Expenses” Income, to “Income and it discloses “Combined January 30, 1909, Sophie “Total, Franz Estate” to June $3,348,131.85”; “Expenses pay- and under Distributions” total January 30, 1909, from to ments to commissions $90,624.87. June of Under the subhead “Liabilities” Liabilities,” under there is an item “Due Franz “Assets G. A. Buder, Trustees,” 22, 1931,” and G. A. “Actual June Value Estate, “$10,062.87”; and an item “Net Per D” “Actual Exhibit 22, “$1,720,314.98.” 1931” Exhibit Value June I said account is Showing a “Statement Net Estate Distributable Heirs A. G. Executor, 22, 1931,” and Buder, as at June under “Deductions” from “$1,720,314.98” are said “Net Estate” shown “Claims of G. A. Buder, Trustees, Burroughs Franz and G. A. for Commissions: 5% Stock, Kind, Adding Company Shares, $20,343.75; Machine 875 Assets, Excepting Heirs, Amounting of all Distributions to Other 5% $1,359,319.91, $67,966.00,” $88,309.75. a total of Ordinarily Enterprises Lyris (Mo.), General Theatrical v. 121 S. W. 139, plaintiffs definitely control where fail 2d 140 should state [2-4], prayer. However, preserve in their the amount the constitutional court, pierce integrity pleadings, proof, of this we the shell sufficiently record, judgment far to determine our proper jurisdiction infringed improper jurisdiction or upon, is not is not upon Vanderberg us mere colorable amounts. foisted v. Kansas 456, Mo., Co., 908; Mo. 97 S. W. City, 458, Kline, Gas 199 Matlack v. Mo. 280 Mo. 226, 139, 154(1), 216 S. 228[2], 89 W. 2d S. W. 659[5]. 323, 327 [2] ; Ashbrook Willis, 338 part petition (§ 44, A as a Taking Exhibit supra), the sub- in dispute is that the amount stance of the situation the Trustees’ of the assets of the claimed commissions Franz trust 5% (in $80,000), whether entitled thereto not, against excess estate Dreckshage 7 American 1034, § 241 d. Sash [2] Dreckshage, ; Marr v. & D. Co. Marr, Mo. Commerce Trs. 342 Mo. 176 W. 2d S. 656, 117 Co., S. W. 2d 332 9[1], Mo. See 4 C. J. S. 98, 230, 56 S. W. 231 [1]; vesting deceased, $7,500, appel- Sophie Franz, exceeds Estate of late here. authority deceased. Sophie Franz,
Under the of Re Estate of (2d) Buder, of G. A. Franz and S. W. Claim G. A. involving legal identical defendant’s motion to dismiss issues, ground filed within appeal plaintiffs’ on the Notice of was not Appeal days (Laws 1943, p. judgment after the had become final A., 1943, p. 847.129) Mo. R. Laws S. is overruled. § R, 3.24, A., 847.116, 847.118; Mo. S. Rule §§ dismissed appendix xiv. Plaintiffs’ cause of action was June 1948. Plaintiffs’ Motion Dismissal was to Set Aside July 7, 1948, ap filed and overruled October 1948. Notice peal was filed October brings
This us to the statute of limitations.8 If limitations are applicable, says defendant whether the action is barred ten (§1013, (§ 1014, Id.) year R. A.) R. S. or the five years elapsed is immaterial as more than ten after the death *8 Sophie Franz, Ap'ril 14, 1930, well as as the rendition of the account, suit, Trustees’ June the before institution of August 23, 1943. See Newton v. Rebenack, App. 650,
Equity express has over trusts.9 fiduciary obligation by The owed a a cestui trustee from differs of a legal debtor to his creditor. The trustee has title the but cestui is the beneficial owner the trust res and recover it from third parties in appropriate instances if duty, the trustee breach his and discharged the trustee if stands the trust res be lost without his fault. general A against creditor’s claim his debtor personal, is rights in property, the property by debtor’s loss of the debtor discharge obligation. express does not his There no is trust of record covering the Trustees’ commissions. express continuing trust, In the case of general rule is “that the statute of limitations does run between the trustee que-trust long the cestui as the trust subsists.” 53 C. J. S. 19a; 954, 15, J. S. 16.10 C. nn. This because § § the fiduci- ary position possession the trustee causes his to be possession the- beneficiary possession and eliminates all adverse with respect 8 Ludwig (Mo.), 1035[1]; 65 S. Scott W. State ex rel. v. Yates. 276, 283(b), 673(b). 231 Mo. 132 S. W. seq., 890, 787; 9 65 940 et C. J. §§ Am. 566; § Jur. §§ Holman, (U. S.) 25, 873; Watkins v. 16 Pet. Grice, 10 L. Ed. Johnston v. 199 W. 410 [1]. S. seq.; Annotation, 10 Seealso 34 Jur. Am. 107 et 122 A. R.L. Bogert, (1935), 951; Perry, Trusts and Trustees § Trusts and Trustees (7th Ed.), 863; Wood, (4th Ed.), 948, § Limitations § 200. Mettee, 338 might run. Little of limitations which statute 1000, 1009.11 1223, 93 W. 2d S. not run do they say limitations rule when Trustees twist The relationship repudiated. the trust express trust unless against an Hunt Trs. Co. general rule: St. Louis U. are within the Their cases Winslow, 196 444; England v. 169 W. 2d (Mo. App.), S. by cestui for They were suits 237 P. Cal. [7-9, 12]. the trust while possession at time in the trustee’s trust res They are not this case. continuing. with the vested the Trustees Franz trust Sophie instrument including estate, over trust all powers and broad possession of res dispose of the trust or otherwise power the settlor to sell therefrom, and to collect proceeds and to' invest and reinvest estate, pay all due the and to income, all dividends et cetera recover adminis- charges expenses and other incident to the compensations, be were to payments to the beneficiaries of the trust. The tration They had no duties under the property. absolute as their received trust instrument. at the death of provided for its termination trust instrument hold the trust res for the Estate Franz and for the Trustees to
Sophie by Franz, deceased, “to administered the Probate Court Sophie be will City Louis, Missouri, in accordance with last St. the laws of the State of Mis- Franz and with and testament **.” souri expiration of a trust is the
A natural method for the termination settlor; life of settlor as instance, fixed of the time 182: We 54 C. “Under the in the instant ease. J. <}uote ** within the of limitation general rule that trusts are not statutes repudiation, been a termination or where until there has limitations, own with fully terminated either its settlement *9 by and beneficiary, or some act of the trustee intended under the trust, discharge in the parties both to be stood favor; begins run in the trustee’s for when then to limitations terminated, longer right no hold the trustee has to the the trust discharged pay to it over or transfer it property fund or but is bound Boyle, 257, 270(II), 287 266(I), Price v. from the trust.” See ; Latham, 155, 209 Latham v. 184 N. 206, 229 W. C. S. [2, 208[1], 3] Teachey Gurley, in v. 623, E. and observations 214 113 S. 627[2, 3], 288, 83, N. E. C. 199 S. 87[9-11].12 Henrici, 610, 718; Sup. 11 Speidel 7 U. S. Ct. 30 L. v. 120 Ed. 1, 86, 7; 955, 2; Bogert, Trustees, nn. Trusts and
34 Am. Jur. n. 53 C. J. S. 951, 20; Perry, Trustees, 863,»n. Wood, Limitations, p. 55; Trusts and 2 § § § 200, n. 10. 21, 22, 922, 21, 903, nn. nn. 180; J. 178, C. 149, 37 §§ 54 C. J. S. 12 Seealso 1003; seq., 991, 39-44, 7 et 951, nn. Trustees, nn. 22; Bogert, Restatement, §§ and Trusts 345; Perry, and Trusts -Trusts, § Trusts, on Scott § Trustees, 920. § 822 running limitations say general prevents
The Trustees rule not beneficiary. We think against the trustee and in favor of the including trustee, in rights under the A presupposes facts. trust trust. instant generally under the possession personal estate as (cited support in Kay Spickernell (Eng.), In v. 669 Hotham 1 which, in 863, 69, Trustees, m. Perry, in Trusts and the text § App.), (Mo. turn, v. Hunt quoted in Louis Trs. Co. dictum St. U. requested W. 444 o'f the trust 169 S. 2d life beneficiaries [18]), beneficiary gave moneys, and one writing, reciting trust, trust note, was held that said acknowledging trust,- his therefor. It and, beneficiary in subordination of the trust received the trust res having estate, recovery upon his death was a life its from his estate App. Div. Bouton, not barred Smith v. 221 limitations. See occupy different 223 Y. 166. and beneficiaries N. S. beneficiary res in positions; possession but when a has the trust fealty to like extent to the trust he holds unde'r the trust instrument Estate, 154 as the trustee while the trust subsists. Re Rutherford’s Kan. 118 P. The Trustees’ 2d differs on facts. [2, 3], distinguishable were filed within the statu cases are in that the suits tory period and the instant relation after the trust ceased to subsist ship is that debtor creditor. question may does that “a trustee wait until
Defendant (28 receive commissions” Am. termination of the trust then his Eng. Ed., 1044, 3) Law, ; paid & Enc. n. or that if income be beneficiary deducting commissions without intention compensation, may payments out of future waive it be deducted beneficiary (Restatement, Trusts, 249(2); same Scott §§ 3, 249.1). says 242.8 n. Trusts, point and cases Defendant application has no bar an whether limitations action where trustees, here, delivery after the termination of a trust have made agree. in accord trust. all trust assets with the We of a pro-
The Trustees assert that after termination its merely beneficiary do not start visions limitations because leaves Svgs. Bk., with v. the trust res the trustee. Jones Home 118 Mich. 377, 380; Rep. 76 N. W. 74 Am. St. Re Farmers Loan & Co., 359, 362, 363; Y. App. Trs. Div. 62 N. S. Johnston v. Johnston, 652, 654; Sager Minn. N. W. Highway State (Mo. 125 W. 2d App.), Comm. Svgs. Jones Home [4]. interpreted Trustees, Bank is Perry, Trusts n. 72: “After the termination of trust a reasonable time is allowed settlement, begins the statute Coudrey then See run.” Gilliam, Loan & Farmers Trs. Co. case involved a continuing trust, repudiated, nor neither terminated Sager as did the *10 held, facts, case. Johnston under the v. Johnston limitations did beneficiary against run the action set aside a settlement with ground discovery the the of fraud until the trustee on fraud; the ground. upon a might rested like Svgs. v. Home Bk. have and Jones trustee; beneficiary fiduciary, whereas the his his In case a sued each they suing fiduciary, a tendered their are not and Trustees instant res accord with the trust instrument. and delivered the trust in account holding negligence a in that mere trustee The Trustees’ cases (Chard duty v. O’Con discharging his does not start the 125, following England v. Win nell, 48 2d 120 P. 2d App. Cal. Cairns, 25 Ariz. slow, P. and Sumid 196 Cal. They 1084) controlling the facts are not under of record.
220 P. continuing had involved trusts which not terminated. May 14, 1930, allegations
From between that “various occasions commissions, Trustees, deducting August 5, 1943,” without delivery of all trust made under the trust instrument assets said Franz, say they functioning owned were estate If in the month the suit was instituted. the Trustees filed various re- ports aforesaid, report in between the dates the last shown this record A, being 22, 1931, report dated sole Exhibit June of record approved disapproved is the account that could be under the pleadings. original petition alleged A Exhibit was “final Trustees; statement, statement” their account as such final “that copy a of which is hereto attached and marked ‘Plaintiffs’ A’ Exhibit prepared copies dated as of June such all parties statement were sent to in interested the aforementioned estate, legal representatives **”; trust or their and the second petition amended approve asked the court to consider and “the final audit, report or account” of the Trustees. The Trustees overlook gist that the of their action is said account June and that they seeking any are not the approval of subsequent account rendered said June 1931.
The second count “a asked the decree of trust favor plaintiffs” in the assets of the Sophie Franz, Estate of deceased. This count petition May was added to filed 1948. There agreement no for a against trust or lien payment trust res for the trustee, Trustees’ “A commissions. compensation entitled to for services, his has a lien on property therefor,” the trust J.C. (the This “lien” title) truste'e legal has the is not an estate or a trust in or charge against an equity, trust res but remedy, protection compensation. trustee’s discussing Cases constructive trust (Happy County Bk., v. Cole 93 W. or the lien of an (Murphy execution levied [2]) Wil son, Mo. App. 178, 183) differ. The Restatement Law of ‘‘ Trusts, 242, e, reads: pay trustee need not over income with deducting out compensation to which respect he is entitled with income, pay principal need not over deducting compensation to which he is entitled respect with to the principal. To this extent the security trustee a has property interest the
824 authority de- ours.) no find compensation.” (Emphasis We for his of the possession against not in the creeing security property a trustee.13 alleged say because was tolled the it Trustees statute herein, plaintiffs one Buder, A. of of G-. one the Trustees that In Franz, deceased. Executor of the Estate of also the was sides represented both by person the Trustees one each case stressed 256, 96 N. E. Williams, 210 Mass. Bremer conflicting of a claim. v. Yeager 677, 685; 688; Quicksilver Co., 68 F. Gray v. Min. Peyton Nat. 47; F. 2d v. Chase Co. Liberty Royalties Corp., Buder A. A. Franz G. P. 596. G. Bk., Kan. Buder, A. Executor with G. and are not identical were Cotrustees They are limited one trustee. form collective aforesaid. Cotrustees 750, 85 James, 337 Mo. compensation. Walker v. to one reasonable 885; Kilpatrick Robert, 278 S. W. 876, 884, S. W. 2d n Re Trustees, 402, 408, 411. Perry, 887; Trusts §§ limitations, (b), relating of statement, Trusts, (2) to the statute in a breach person knowingly participated “If the third reads: beneficiary maintaining an action trust, precluded from of is not ** par (b) a who did not therefor, him unless cotrustee against trust, knowing of the in the breach of successor trustee ticipate bring against him an action against person, third fails to claim by of laches.” We think he is limitations or 'until barred ;the analogous. situations are ’ (cid:127) Furthermore, limitations were denied that Trustees cases neglect duty timely proceed, his be not benefited the trustee predicated upon being rights ought that to be the theo- the reason not n practically possibility but inconceivable that dishonest retical trustee dishonesty right in an had expose his action ‘the fraud he would neg- Trustees their own committed. The instant seels: benefit and the stated reason does exist. The Trustees had filed their lect Sophie Franz, deceased, in the demand commissions Estate aforesaid, May years Buder, prior G. A. Executor to. twelve filing do instant suit. cases not establish error. before say they argue estopped also defendant
The Trustees that They allegations following have no cause of action. stress to the effect: settlor, (April 1930) after death That the Trustees Court, pursuant in the States District to an order in’ filed United final their pending, therein statements of cause said administration estate, which segregating the assets in settlor'had-a life absolutely settlor,, and the owned interest assets said on claiming assets; a commission each of said that 5% Mayhall’s App.), (Mo. 13In Estate 151 S. W. 2d Bradury re Restatement, 569, 581; Trusts, h; Birchmore, g, 117 Mass. §§ Trustees, 12-16, (2), d; Bogert, Trusts and nn. n. §§ - 242.3, ,23; Trusts, n. 345.2. Scott (cid:127)' concerning exceptions said all exceptions accounts; were filed to overruled, absolutely by were the -assets owned settlor matters, ruling court prejudice,1 jurisdiction, for lack of such said jurisdicton Probate including commissions, “were within the passed and dis City upon Louis and be Court St. should therefrom; taken that on or posed therein”; appeal -that no *12 May 14, filed in said Court a 1931, about the Trustees had Probate against Sophie Franz, deceased, of their com demand the Estate for aforesaid, being claimed unable to foretell ultimate missions commissions; of regarding action District aforesaid said that Court May motion, 1943, by residuary legatees on a filed 23, named jurisdiction Sophie Franz, Probate did not that said Court have commissions, to entertain said claim for court dis Trustees’ said July 19, 1943, ground only said claim missed on on court of equity jurisdiction thereover; had appealed that there residuary from; legatees that reason of the failure of said more promptly to move the dismissal said claim ’defendant is interpose estopped, statute of limitations as a defense. The distinguishable Trustees’ cases14ate on the facts. City issue whether the Probate of the
The Court of St. Louis had jurisdiction nontestamentary ju over proceeding this involved ' subject subject risdiction over the matter. Jurisdiction over the mat- agreement parties not ter be based on or the estoppel deny party of a it exists. Strother, that United Cemeteries v.Co. 1115, 762, 342 Mo. 119 W. 2d Buckles, 405, S. 765 Re 331 Mo. [1-5]; 1055, W. showing exceptions 53 S. 2d There no is that [2], ground filed in the District were on the Court based Probate City jurisdiction, Louis had or Court St. that défeñdant or any party privity attempted (as him with ever in the Trustees’ casés) legal or , positions switch facts in the-.Federal, Probate, or opinion Courts. The Circuit' said District Court that Probate ¿11 had binding. parties Court at times were adversaries,1 equal opportunity with to be “Courts informed. - ** equity may grant relief acts and contracts executed against in ignorance facts; under mistake or of’material but it is otherwise party ground where wishes to avoid his act or on the he was .deed Redfield, ignorant of the law.” Andreae 255, v. U. S. 25 L. Ed. 158, 333, 18; 163. n. 34 Am. J. S. Jur. C. n. 48. have presented
We
reviewed
the issues
limitations.
A fundamental
is
the legal relationship
distinction
that
plain-
between
Mo.,
Farley
332;
14Hereford v.
Bk. of
Pettes,
National
v.
App. 262, 265;
County,
916;
Combs
Sullivan
105 Mo.
16 S. W.
Dist.,
938, 942;
State ex inf. v. Consolidated School
277 Mo.
209 S. W.
Harvey
Dameron,
App.
Welch &
47 Mo.
Runnels v. Lasswell
(Mo. App.),
Brewing
981 [1, 2];
Miller,
219 S. W.
Columbia
Co.
App, 384,
101 W.
debtor.
of creditor
liability, is that
defendant, if there be
and'
tiffs
to, the
prior
with, if not
existence
relationship came into
As this
August 23,
until
not instituted
22, 1931, and suit was
of June
account
reversed, the Trustees
Were the tables
is defense.
limitations
of June
account
insisting that
their
be
no doubt would
respect to all assets
with
position
definitely revealed their
to discuss whether
no occasion
There is
Franz trust estate.
respects.
in other
of action
a cause
petition
states
concur.
Barrett, CC.,
Westhues
judgment is affirmed.
Bohding, C.,
adopted
foregoing opinion
PER CURIAM: The
All
judges
concur.
opinion of the court.
as the
Rehearing
to Transfer.
Motion for
On
motion
appellants’
complaint
main
PER CURIAM: The
the rela
paragraph,
that
opinion,
in the
last
the statement
debtor,
liability, came into exist
if there be
tionship of creditor
opinion
conflict with
prior
on or
to June
causes
ence
deprive
362, 221
and to
Estate, 359 Mo.
S. W.
Re Franz’
*13
stressing
law,
process of
property without due
appellants of their
836, 92 L. Ed.
Shelley Kraemer,
1, 14, 68
334 U. S.
S. Ct.
Hill,
Svgs.
&
U. S.
Trs.
Co. v.
Brinkerhoff-Faris
think
451,
State Relator, Corporation, v. Waldo Judge C. the Cir- Mayfield, City Missouri, Louis, Successors, cuit Court of the St. and His Presiding Judge Respondent. of Said Court, as Topeka rel. ex Atchison, State Missouri Santa Fe Railway Corporation, Relator, v. The Honorable Company, Judge City David J. Court of Circuit of St. Murphy, Louis, Missouri, Successors, Presiding Judge and His of Said Court, Respondent, (2d) Nos. and 41558 224 S. W. 105. Banc, en
Court October Rehearing Denied, 14, 1949 November