*1 Stuber, Maud Young, Laclede Stuber John Laclede Studer, Deceased; of Rebecca Pen Executors Victor Basil ny; Penny; Leslie Marie Smart; Penny, Elsie Victor Basil Estate Nettie Penny, ; Deceased Administrator Ethel (Plaintiffs), Aubchon Respondents, v. W. N. Harlan Appellant. (Defendant), 687. Appeals. Opinion Louis
St. Court of filed November appellant. Avery Sowell Omer Frank S. *2 respondents. Bntere for
Theodore C. BENNICK, case, reassign- C.—This which the writer comes to ment, St. is a suit for of certain estate situated real County Charles and owned Studer at time of Rebecca duly By death will, on October terms of her County, admitted in the probate Probate Court of St. Charles *3 question deceased devised the real estate in in to her shares children, Studer, Penny, Aubuchon, four and Laclede Nettie Ethel subject, Maud in Young, however, specific provision the contained any money the will if she paid that should have out on account having signed any security obligation son-in-law, as for Edward Aubuchon, paid by then such out be deducted sums Aubuchon, from the share of her daughter, Ethel in her said estate. . suit, partition Thereafter there a the upon was instituted based theory partitioned great that the in without lands could not be kind prejudice thereof, might praying owners and that same proceeds among ordered to sold and the several distributed according parties their therein. interests 10, during October 1931, suit, On the pendency of defendant, W. Harlan, purchased N. in- undivided one-fourth terest of Young question Maud in to the real estate and in trus- at a tee’s sale under a trust. deed importance
It is of the present controversy to notice that involves dispute no regarding the title any or interest of suit, question whether, in the ultimate division proceeds and distribution of lands, derived from sale acquired by defendant, interest Harlan, shall be of $900 and by accrued interest owed predecessor title, his in to the estate of the deceased. Under such title circumstances to real suit, ap not in estate issue in the and pellate jurisdiction is therefore vested in this Court. [Cunningham Cunningham, v. 1161, S. W. Devoto, (2d) Devoto v. 511, 326 Mo. 31 805; Herehenroeder Herchenroeder, 75 Mo. App. 283 . The indebtedness Young of Maud estate of was by negotiable evidenced a promissory $900, note for on executed 17,
October 1921, bearing interest at the per rate of per cent
81é was Interest date. year after mature made annum, principal The 1927. 17, October note thereafter 1927, 17, subsequent to October accruing note, with all interest that expressly found unpaid, court and the now due insolvent. maker of note was Young, the de- note the execution of the at some time after appears Sav- St. Charles it with the pledged in blank indorsed it ceased her to for two notes owed ings security Bank collateral $225, 1923, other $500, January 3, and the bank, one for dated August dated among note collateral Young bank Thereafter the held un- discovering for some papers when, until in its had it herself notes reason two disclosed owed year within presented for allowance her estate not been charged the time, it by limitation of and were therefore barred loss, therewith turned as a amount of such off of its books notes deceased, the collateral note the executors of the estate of over to ad- subsequently probate supplemental who court filed inventory charging ditional the same. with the themselves words, position In other it had the bank’s was time security title to or interest collateral note save as payment deceased, for the of the two owed the bank notes so that
with interest, Young- accrued constituted claim valid in favor the deceased; of the estate'of that the share of interest Young in subject to the question and real estate in to the was from her defendant, due the note; to on that the and Harlan, was therefore entitled to an part one-fourth of undivided the lands, subject but to the the Young amount of indebtedness of Maud to the estate.
The court partition ordered that among of the real estate be had the entitled thereto according respective to their interests therein; inasmuch incapable as the lands were of in great prejudice without injury kind and to owners, the the same sold, should be the proceeds partitioned among those thereto; entitled much that so the of Young of de- to vised her the will as was to the amount due from to her the estate on her note be should to the estate, executors of the be applied by to upon them the indebtedness Young of to the estate.
815 appeal to this defendant’s judgment decree From such course. in usual perfected the has been the note whether question of upon primarily ease turns The deceased at property of was by Maud executed her an of thereupon have asset to become so her death as time of in interest one-fourth undivided estate, and, of whether the so, with to be properly Young lands devised to Maud estate. her indebtedness to the amount of any other have warranted hardly could adduced The evidence the deceased at property was the of that the
finding than note her thereupon asset of to become so time her death as by the deceased been Though had indeed indorsed the note estate. accord- bank, parties, the intention of the by her to and delivered by the bank evidence, not that note should held ing to was security as for absolutely, it be held collateral but herself the bank. of the the indebtedness deceased to payment Mo. Under such circumstances Matthews, v. 477.] [Wood note, rather did not become the absolute owner of the bank was in respect the interest of the trustee with constituted a security pay- bank with the for pledged by note thus her as D’Arcy, v. ment debt it. owed [Dibert 1116.] though even is of course true that notes owed bank when was made became limitation demand no barred security upon year, pledge them within bontinued still worth, obligation subsisting whatever it as a valid and for ac might by the the same have been bank held realized cording contract to the terms seen to have had bank fit legal adopted that course. J. This the reason that C. [37 701.] running special it theory of the limitation statute not of did satisfy, discharge, extinguish operate the debt the de self ceased, upon but merely remedy to bar bank’s it. The served legal is, however, consequences running fact special actually statute are concern no proceeding. us this regardless important thing rights is that might respect have been security, bank it thereafter principal extinguished, charg debt and, to treat elected loss, its ing the same books as a had further right off re duty but was note, tain the collateral return bound to the same to instance, pledgor, or, this executors of Matthews, additional them as an asset thereof. inventoried [Wood *5 pra; Chelsea, Bank of 211 App. 238, Garrett Mo. v. 241 S. su W. 87.] will had in Now the nowise release or purported by remit the debt owed deceased Maud when it note was as an asset estate latter’s inventoried became the 816 law by action at same, either duty of executors collect charging retainer, by equitable
upon it, else, theory or the estate share in against same the interest or the amount of the Young. bequeathed [Thomp Maud by deceased to devised Ennis, (2d) 41; v. McCune, W. State ex rel. 758, v. 333 Mo. 63 S. son App. S. W. 737.] Young’s con actual the estate words, In other interest Maud estate, what the’ so.that of her share less she owed sisted distributive Harlan, defendant, which not an undetermined interest was sale, acquired when the devised are ultimate trustee’s lands proceeds to be ly the order the court and the come sold under accord among divided distributed the devisees or their successors ing interests, respect with to their defendant’s status fundamentally will that status which such distribution occupied Young if interest herself would she her had retained personally asserting, claim her in the lands her undivided 1002; proceeds. Duffy, 144, 55 share of the v. 155 Mo. [Duffy Ayres King, 168 Mo. 67 W. Bank v. S. v. Dennis’ Traders’ (Mo. App.), 796; Hopkins Thompson, 221 W. 73 Mo. Estate S. App. 401; C. J. 487.] however, argues, any
Defendant the court was in event unqualifiedly charging Young’s error whole indebt- of Maud against regard real estate any edness share in the without to the being personal amount of the assets his estate, contention equity Young’s in all distributive fairness assets, personal against first any, be set off the amount estate, of her to the before estate her share in real defendant, presently charged as owned should be whole of such part indebtedness. this, As discloses there personal are as- indeed record may which or may value, sets of the not be estate de- considerable pending upon, may be realized from the sale of the land. hand, is of that the amount of amounting cash now on course.true and, $218.59, inconsiderable, is as found by court, the lower will pay the costs needed of administration. However note is itself an asset of the are as also *6 and penalized, one who be briefs, in the defendant is to out Young, estate having after her indebtedness to the had expense re- defendant, sole left free to discharged at the of is to be personal of not- estate, her full share assets this ceive and may withstanding personal fact that her share in such assets to offset well be sufficient amount of indebtedness to es- manifestly equitable, neither fair tate. Such a result nor and escape not there is should be countenanced court unless no to be from that conclusion. had required court in a suit is to determine and de-
Now the rights, titles, (See. 1560, Be- parties clare and interests of the 1738), Ann., 1560, p. Mo. St. vised Statutes Missouri sec. to having which end it has been held that determined the sought partitioned, interests of cotenants in lands be to may adjustment equities reserve in decree court its between parties, subsequent even a premises to time to of the the sale un- der the court. (Mo. order v. Devoto App.), [Devoto (2d) 1083.] situation unmistakably bar seems call applica- for the
tion principle. above pointed out, As we have already there dispute is no whatsoever about title or interest of par- of the ties proceeds entitled share in the lands, the sale of the and questions but that the court has ruled that feature the case correctly. Instead the controversy to be goes wholly to determined adjustment rights equities and parties, especial- ly defendant, Harlan, between whose undi- purchased. interest in the he vided lands To end the real estate be this should sold under the order upon the
court terms heretofore been directed. It will understood, then following be provision will, of the that from the share of Ethel proceeds Aubuehon in the sale, net of the an amount equal amount of the advances by the made deceased in her be- represent personal half will a asset the estate. Of course Ethel Aubuehon’s one-fourth share in the proceeds net may of the sale may not or exceed the amount of advances, such depending upon the amount which is realized from the sale. However this un- certainty in nowise equities affects relative in the im- case. The portant thing following is that the sale, the executors of the estate deceased, of the who are to this proceeding, will then be position a to determine from all the facts in possession their Young’s ultimate share personal distributive assets of will be. Whatever the amount be, of her may said share applied discharge should be of her indebtedness es- recourse tate before is had to the real estate her, devised then, share of personal such in the prove assets insufficient satisfy her said offset prop- in the circuit court by the showing of fact executors
er such sale defendant, Harlan, proceeds in the may deficiency whatever the circuit ex- over to such sum be, be entered an order distribution. of final ecutors at the time *7 the proced- to bare of is be outline This of course intended are which equities adjusting in by the court ure to be followed mechanics leaving actual calculations case, in the present at. parties pri- to and attended to be out of the matter worked court. always of the marily concerned, subject approval to the judg- final entry of procedure be that such makes may It said of dependent upon state in a measure ment in the court circuit is court, proceedings probate but that in the administration this why rights adjusted be parties is should not no reason true are the circumstances of case in the manner indicated. Indeed require regard necessarily each for the such as to that court due have to sought proceedings in the other. pendency of Here the lands subject have to the divided in interest descended against the claims estate of the in event of the insuffi- ciency personal pay same, of the assets to and in situation the this (Sec. 1558, circuit is forbidden 1929 court statute R. S. Mo. 1737) Ann., 1558, p. Mo. St. sec. to enter an order distribution un- finally is til the estate is that settled or all claims satisfied discharged. fully been same have Divinia, 141 [Chrisman Hart, Mo. Dildine v. 293 W. De S. 112.] There dispute further in regarding the ease to which time Young’s interest on Maud note should continue accrue in de- termining the amount of her estate. case be- indebtedness ing involving equitable doctrine retainer, think that we the date of the death of the deceased should determine this feature controversy. The will of the spoke date, as of that and it was then that Young became vested with her interest or in the consisted, share already pointed out, as we have of her distributive share less inherited she owed the estate. follows, therefore, such share was inor excess of her indebtedness, then no interest should accrue subsequent her note to the death of the deceased as of which date the executors are retaining so much Young’s of Maud share as will off- set indebtedness to the In words, estate. other her indebtedness discharged, payment actual not note, of prin- ciple equitable retainer, and it could only be in the event that her indebtedness to the estate exceeded the amount of her inherited distributive share that interest should continue accrue, and then only upon much of principal note inwas excess vesting the share in her. failing re- suggestion in Finally there is a court erred rents, use, quire plaintiffs to defendant accounting an from the date that defendant of the real estate from and after profits far Young’s undivided interest therein. So acquired to Maud title discloses, by the rents execu- record whatever were collected as this any pursuant probate time were collected order of tors charge directing pur- them to take of the real estate for that court could, Under claim pose. such defendant circumstances is, he any part however, event. The fact rents will receive nevertheless the benefit of their collection the execu- executors’ tors. The result of the rents is that the collection increased, personal thereby assets which means that are Young’s personal is.proportionately share in- assets creased, corresponding with a decrease in of her liability undi- vided the real estate to be with the amount to the estate. judgment It follows of the circuit re- *8 the cause with remanded directions circuit versed judgment up to enter with conformity new herein views ex- pressed. The Commissioner so recommends. foregoing PER opinion CURIAM:—The C., is Bennick, a-
dopted opinion as the of the Court. judgment is, of the circuit court accordingly, reversed cause remanded accordance the recommendations of the Hostetter, J., Commissioner. P. Becker McGullen, JJcon- cur. Grab, Infant,
Violet Her next Friend, Lena (Plain- Grab Company Respondent, tiff), v. Davis Construction (Defend- Appellant. 882. ant), Appeals. Opinion St. Louis Court of filed November 1937. rehearing
Motion overruled November 1937. February 25, Writ certiorari denied when those notes time two became limitation of barred having duty, bank’s to treat the indebtedness elected extinguished, deceased as to turn the collateral the ex- note over to ecutors process deceased then administra- tion. found, note, among things, other amount of the
Notes
notes from time to time security off the deceased son-in-law, as for her Aubuehon, which, the amount of aggregating Edward in excess of provision is, express virtue $4,200, will of de- ceased, from the share of to be her daughter, deducted Ethel Aubu- ehon. interlocutory judgment As the of the court stands, the whole ..now Young’s indebtedness to the be' one-fourth undivided interest in the real estate defendant, Harlan,- means, just now owned pointed