author: GANTT, J.

text:
    McKEE, Administrator of Estate of MELVINA BLANCHARD, Appellant, v. ALLEN et al., Executors of Will of JOSEPH BENOIST.
    Division Two,
    June 11, 1907.
    1. EQUITY AND LAW: Difference: Remedy. The Constitution secures to a defendant in an action at law the right of trial by jury. Therefore, the question whether a suit in equity or an action at law is the proper remedy, is one of substance.
    2. -: Discovery of Assets: Meaning of Section 187. Section 187, Revised Statutes 1899, providing that all actions commenced against the administrator, after the death of deceased, “shall he considered demands legally exhibited against such estate from the time of serving the original process against such administrator,” has reference to the time when demands shall he considered exhibited within the meaning of section 185, and is not authority for holding that a bill of equity is the proper proceeding to discover assets in the hands of deceased at his death and to obtain an allowance or a money judgment against his executor for the amounts of these assets.
    <t. -: -: By Administrator: Money Judgment: Trust Fund. Plaintiff sues in his representative capacity as administrator of the estate of a sister of defendant’s testator, and charges that said testator received in his lifetime moneys of his said sister and loaned and otherwise invested them for her to the amount of many thousands of dollars, which, together with the increase, plaintiff believes amounted to forty thousand dollars, and that the same remained in the hands of said testator at the time of his death, and the prayer is that his executor he required to pay over said sums with interest. Plaintiff did not sue as an heir or a devisee of an alleged beneficiary (the sister) entitled to have a decree of title to specific property, nor does he seek to pursue a trust fund into any specific property, but the purpose of his bill is to obtain an allowance in the form of a money judgment against the "said executor; nor was the evidence directed to a discovery of assets, and all the evidence offered could have been introduced in an action at law upon a demand, under the statutes against the estate of said testator, in the probate court; and the small number of items did not call for an accounting or reference. Held, that plaintiff had a complete and adequate remedy at law, and it was not necessary to have invoked the aid of a court of equity in order to obtain full relief.
    Í. TRUST: In Notes. A trust in notes cannot be declared upon the isolated fact that the lender and owner of the money caused them to be made to his sister .as payee. To constitute a trust there must be an explicit declaration of the trust, or circumstances that show beyond a reasonable doubt that a trust was intended to be created.
    5. -: ———: Carrying Property in Sister’s Name. The testator’s wife and children were dead, and he had been thrifty, and had employed his favorite sister’s husband in his'business, and after his death and her return to Canada, he bought real estate with his own money, and took the title ■ in her • name, and loaned money on real estate, and took the notes in her name, and. the deeds of trust in .his name as trustee and hers .as beneficiary, and took from her a general power' of attorney, and just before her death she assigned to him by a general assignment the various notes which were in her name, the notes at all times remaining in his possession. At various times he sent her money, mostly in reply to requests from her, and for that she again and again expressed her gratitude, and there is nothing to indicate that she considered he owed her money or had in his possession any money belonging to her, but all her letters bear the unmistakable stamp that she regarded - these remittances as gifts to help her support and educate her children. At one time he stated in her presence that she had forty-five thousand dpllars to divide among her children, and he made a will naming her as a legatee, but she died first, and he changed his will, and lived five years after her death, and ‘no effort was made by her children or heirs or administrator to collect anything from him during his life. Eeld, that no trust in favor of her administrator against his estate could be declared upon this showing.
    6. -: Evidence: Fragment of Letter. A fragment of a letter, signed by testator, in which he says that “in case X should die suddenly, you may write to” a certain person, “and he would give you the information to help you recover your moneys I have lent in your name, and which to-day amount to over twenty thousand dollars,” no date being given, and there being no showing as to whom it was addressed or written, or what the . contract was, is not competent as going to establish a trust. It Is not the case of an accidentally defaced paper, nor one where when a portion of a complete instrument is offered in evidence the opposite party has the privilege of offering the balance if he desires, for there was no evidence that any person had ' ever seen the complete writing.
    Appeal from Jackson Circuit Court. — Now. James Gibson, Judge.
    Affirmed.

      Ellis, GooTc é Ellis for appellant.
    (1) Plaintiff’s Exhibits ‘O” and “P,” incomplete letters from Benoist to Mrs. Blanchard, were admissible in evidence: They were complete in so far as the topics referred to were concerned. 1 Wharton, Ev. (2 Ed.), sec. 63; 1 Grreenleaf, Ev. (13 Ed.), sec. 566; Addis v. Graham, 88 Mo. 202; Lee v. Alexander, 9 B. Mon. 25. (2) Suit in equity was appropriate proceeding to enforce claim of the plaintiff. R. S. 1899, sec. 187; Butler v. Lawson, 72 Mo. 245; Estate of Glover, 127 Mo. 164; Leeper v. Taylor, 111 Mo. 321; Tufts v. Latshaw, 172 Mo. 367; Seymour v. Freer, 8-Wall. 214; 1 Pomeroy, Equity, sec. 151; Wernse v. McPike, 100 Mo. 476. (3) Benoist was trustee of an express trust. A trust in personalty may be established by parol evidence and parol admissions. These, when coupled with written statements and unequivocal acts, constitute conclusive proof of the trust. Harris Banking Co. v. Miller, 190 Mo. 664; 1 Perry, Trusts (3 Ed.), sec. 86, p. 76; 2 Pom. Equity, sec. 998, p. 552, note 1; 2 Pom. Equity, sec. 1008; 1 Beach, Trusts, sec. 51; 28 Am. and Eng. Ency. Law (2 Ed.), 870, citing cases from England and nearly all the States. (4) No set form of words is necessary to create a trust. Benoist’s sworn admissions and the statements in his letters that he held his sister’s money and loaned it for her and the fact he held power of attorney from her to handle her affairs and his parol admissions as to the amount of money in his hands belonging to her, established him as trustee of an express trust. Harris Banking Co. v. Miller, 190' Mo. 668; In re Soulard, 141 Mo. 664; 1 Perry, Trusts (3 Ed.), sec. 82; 28 Am. and Eng. Ency. Law (2 Ed.), 866; Ray v. Simmons, 11 R. I. 268; Lane v. Ewing, 31 Mo. 86; Clapp v. Emery, 98 111. 523; Beaver v. Beaver, 117 N. Y. 428; Bispham, Equity (4 Ed.), sec. 71. (5) Taking deeds of trust to Benoist as trustee to secure notes payable to Melvina Blanchard and placing the same on record established the trust as to those specific loans and fixed Mrs. Blanchard’s right as beneficiary; recording the deeds of trust was confirmatory and equivalent to a delivery to her. Harris Banking Co. v. Miller, 190' Mo. 640; Feary v. O’Neill, 149 Mo. 467; Brooks v. Marbury, 11 Wheat. 97; Cunningham v. Freeborn, 11 Wend. 240; In re Soulard, 141 Mo. 662. (6) Even though Melvina Blanchard had had no property nor money of her own in Benoist’s hands, still Benoist’s own declarations, oral and written, made voluntarily and without other consideration, were sufficient to constitute himself trustee of his own property for the benefit of Mrs. Blanchard; and once created such a trust is valid and enforceable in equity. Harris Banking Co. v. Miller, 1901 Mo. 671; In re Soulard, 141 Mo. 662; Leeper v. Taylor, 111 Mo. 312; 1 Perry, Trusts (3 Ed.), sec. 104; 28 Am. and Eng. Ency. Law (2 Ed.), 890, note 2; Bispham ’s Equity (4 Ed.), sec. 67; Willis v. Smyth, 91 N. Y. 297; Milholland v. Whelan, 89 Md. 212; Booth v. Bank, 122 Cal. 25; Bank v. Schwoon, 63 N. J. Eq. 503; Bath Sav. Inst. v. Hathorn, 88 Me. 122; Sayre v. Weil, 94 Ala. 466; Atkinson’s Petition, 16 R. I. 413; Gaffney’s Estate, 146 Pa. St. 49; Smith’s Estate, 144 Pa. St. 428; Blasdel v. Locke, 52 N. H. 238; Bank v. Albee, 64 Yt. 571. ‘* '

      G. 0. Tichenor, Allen & Allen, F. P. Sebree and Johnson & Lucas for respondents.
    (1) The circuit court had no jurisdiction to entertain a hill in equity for the discovery of assets. The proceeding should have been in the probate court, and discoveries of evidence parol and documentary could have been made by deposition. Claves v. Wood, 87 Mo. App. 97; Larimore v. Bobb, 114 Mo. 453. (2) The petition is not good as a bill in equity, because it fails to aver, or to show on its face by statement of facts that plaintiff has no adequate remedy at law; but in fact shows by its averment of the specific sum due; that he had an action at law. Eck v. Hatcher, 58 Mo. 235; Humphrey v. Milling Co., 98 Mo. 552; Gotcher v. Hoefner, 107 Mo. 270 ; Yerdin v. St. Louis, 131 Mo. 105; Mathews v. Eailroad, 142 Mo. 645; Benton Co. v. Morgan, 163 Mo. 661; Church v. Church, 73 Mo>. App. 421; Wells & Wiggins v. Clark’s Ex., 79 Mo. App. 401. (3) Defendant was not required to plead the assignment of securities from Melvina Blanchard to Joseph Benoist. Mussman v. Zeller, 108 Mo. App. 348; Jones v. Eush, 156 Mo. 364. (4) The assignment of securities by Melvina Blanchard was valid, because regularly executed, acknowledged and delivered, and because the securities assigned were in possession of Benoist at the time of the assignment. Lanier v. McIntosh, 117 Mo. 516; State ex rel. v. Jones, 131 Mo. 207; McFadin v. Catron, 138 Mo. 224; Becht v. Becht, Í68 Mo. 530; Fitzpatrick v. Weber, 168 Mo. 574; Lowry v. Danforth, 95 Mo. App. 451. (5) No express trust is alleged in the petition, and neither an express nor an implied trust was proven. Williard v. Williard, 56 Pa. St. 125; Savings Inst. v. Hathorn, 88 Me. 127; Young v. Young, 80 N. Y. 436; Phillippi v. Phillippi, 115 U. S. 151; Eeed v. Painter, 129 Mo. 682; Curd v. Brown, 148 Mo. 92; Pitts v. Weakley, 155 Mo. 109.
   GANTT, J.

This is a hill in equity by the administrator of the estate of Mrs. Melvina Blanchard against the administrator pendente lite of the estate of Joseph Benoist for an accounting of assets and moneys alleged to have belonged t.o Mrs. Blanchard in her life time to the amount of forty thousand dollars, which, it is charged, were entrusted to the said Benoist by Mrs. Blanchard, and of which no accounting had ever been made by said Benoist to her in her life time. Plaintiff alleges that he was appointed administrator of the estate of Mrs. Blanchard by the probate court of Jackson county,- on March 18, 1901, and that Mrs. Blanchard died intestate at Kansas City, February 91, 1894. The defendant was the administrator pendente lite during the contest of the will of Joseph Benoist, deceased, who died August 16, 1899: The petition then alleges that Mrs. Blanchard was a sister of Joseph Benoist, and they were both horn in the French settlement near Montreal, Canada, and were reared as Canadian French; that said Benoist emigrated in early manhood to the United States, but his said sister remained in Canada and was there married to one Joseph Blanchard; that in the early part of the year 1868 said Melvina Blanchard and her husband came from Canada and joined said Benoist at Baxter Springs, Kansas,.where said parties, working and co-operating together, began and developed a large and profitable merchandise business and jointly accumulated a large amount of property; that said Joseph Blanchard died in the early part of the year 1877, and that thereupon Mrs. Blanchard took her three children and her household effects and returned to Canada, leaving- her property in the custody and control of said Benoist, who was authorized by her to, and who did continuously thereafter sell, invest and handle the same for her; that for many years he loaned and handled the money and property of Mrs. Blanchard for her benefit and she trusted him implicitly with her affairs; that she was a person of small business experience herself, while said Benoist was a shrewd and successful business man; that Mrs. Blanchard a few months prior to her death came from Canada to Kansas City, Missouri, to live with her brother the said Benoist, and they lived together in the fall of 1893, until her death in February, 1894; that the letters, memoranda, receipts and other papers belonging to Mrs. Blanchard relating to her business transactions with said Benoist were, as plaintiff is informed and believes, then at the time of her death in her control in Kansas City, Missouri, and after her death the same fell into the hands of said Benoist, or were lost or destroyed; that because thereof plaintiff is unable at this time to state the amount of the moneys, and property and the items thereof, so by said Melvina Blanchard entrusted to said Benoist, or the dates when the same were so placed with him or the fashion in which the same were invested, but that between the first day of January, 1868, and the first day of March, 1894, the money and property so entrusted by her with said Benoist for investment aggregated many thousands of dollars; that the same, together with the increase thereof, remained in the hands of said Benoist, were by him collected and the same, or the proceeds thereof, were among the assets held by said Benoist at his death, and devolved upon the defendant by virtue of his appointment as administrator pendente lite; that the total value of the moneys and property belonging to said Mrs. Blanchard so entrusted by her to said Benoist, amounted at the time of h'is death to forty thousand dollars.

To this petition the defendant answered, first, that he denied each and every allegation contained in the petition, and, second, that the cause of action, if any, alleged by plaintiff did not accrue to him or to his intestate, within five years next before the filing of this petition, and having fully answered, defendant asks to he discharged with his costs. Plaintiff filed a reply denying each and every allegation of new matter.

On the trial of the cause, the plaintiff, McKee, was sworn as a witness and exhibited his letters of administration, dated March 18, 1901. He then testified that he had none of the original mortgages or deeds or notes or title papers pertaining to the estate of Mrs. Melvina Blanchard, and had never had the custody of any of these papers. It was admitted that the defendant, Thomas J. Seehorn, was the duly appointed administrator pendente lite of the estate of Joseph Benoist, deceased; that said Benoist died, leaving a will, and under that will A. M. Allen, Thomas McNamara and Daniel O’Flaherty were appointed executors of the said will, and that subsequently a suit was instituted contesting said will, and by virtue of that suit. and because thereof the defendant Seehorn was appointed administrator pendente lite, and the estate of said Benoist passed into his control and possession. Plaintiff then introduced in evidence the original inventory of the estate of said Benoist, consisting of real estate and personal property, consisting mostly of notes secured by deeds of trust, amounting in the aggregate to $76,311.13'. On cross-examination the witness stated that he had never made any inventory of Mrs. Blanchard’s estate, but had been guided in all the proceedings by his attorney who brought this suit. If there was any inventory, he presumes that he was sworn to it, but he had no recollection of who the witnesses were to the said inventory.

The defendant Seehorn was then sworn as a witness for the plaintiff and testified that there were in his hands at that time, notes, Government bonds and cash amounting to eighty-two thousand dollars, and aside from that there were four pieces of real estate which had never been appraised, bnt a general estimate of its value would be about thirty thousand dollars. He was then asked if he could tell which of the notes that were inventoried were payable to the order of Melvina Blanchard. Answered that he could not, that most of the notes had been paid, that the Elfedt note still remained in his hands, but it seemed to him that on one of the notes there was the signature of Mrs. Blanchard. The plaintiff introduced in evidence the records from the recorder’s office showing eight or ten deeds of trust from different parties to Benoist, as trustee, in which Mrs. Blanchard was named as a party of the third part or beneficiary. These deeds of trust secured notes amounting to about thirty thousand dollars and the said deeds except one or two were all shown by the said records to have been satisfied either by Benoist as assignee of the notes or his administrator or executors.

The plaintiff offered evidence that in August, 1890, a suit was begun in the circuit court of Kansas City, in which Homer Reed was plaintiff and Joseph Benoist and Melvina Blanchard were defendants. In that suit the inquiry arose whether Benoist was loaning out his own or Mrs. Blanchard’s money in Mrs. Blanchard’s name. Benoist’s deposition was taken and he was questioned upon that point, and among other questions the following were propounded and answered by him as follows: “Q. Now, Mr. Benoist, was that your money or Mrs. Blanchard’s money? A. It was Mrs. Blanchard’s money. Q. Is • this Mrs. Blanchard a person of means? A. I believe she is. Q. Prom whom did she tfet her money? A. She had some money from her father’s estate, I am not positive about that. I do not know where she got her money originally. Q. Now as a matter of fact, Mr. Benoist, are not you loaning your own money in Mrs. Blanchard’s name? A. I am not; I am paying interest on money instead of that. I can show you receipts for years, I am paying interest on good money.” In that same case, Benoist himself was a witness and testified as follows: “Q. You have had charge for a number of years of Mrs. Blanchard’s property? A. Yes, sir. Q. Did you have charge of Blanchard’s property after his death? A. Yes, sir. Q. Have you still charge of that property? A. It is about all sold. I could not say now, I think it is all disposed of, I mean by that, the real estate. Q. Has there been any administration of the estate of Mr. Blanchard? A. No, sir. Q. No administration upon it? A. No, sir. Q. And you had charge of Mrs. Blanchard’s property, and .Mrs. Bissonnette’s property here? A. Yes, sir, Mrs. Bissonnette has not had anything here, but Mrs. Blanchard has since 1868. Q. How much property did Mr. Blanchard leave? What time did he die? A. I could not say just what time without looking hack, it was twenty years ago.” In that same suit, Mrs. Blanchard’s deposition was taken at Montreal, in 1891, where she then lived. Benoist had written her telling her what her testimony should cover and indicating very clearly how she should testify in order to show that she was in fact the owner of the deed of trust which Mr. Reed was seeking to make subsequent to his own. Her deposition indicates that she followed his instructions, but after reading the letter of instructions given her by her brother, one is not very much impressed with the view that she really had any title to the note and deed of trust, but that, in fact, Benoist was the owner of the note and deed of trust and was resorting to this method in order to maintain his priority over Reed’s mortgage. In that deposition, however, of Mrs. Blanchard’s, she testified that she had business in Kansas City, and that her brother acted for her; that she had lived in Kansas City during her • husband’s lifetime, and after his death, her brother has acted for her. She testified further that she had her husband were in partnership with Benoist, that is to say, “we were not formally in partnership, we were working together. My husband left some properties when he died and my brother took chárge of my affairs ever since.” She testified also that she gave him a full power of attorney after the death of her husband. When asked how much money she ever sent Benoist to lend for her, she answered, she could not say, that he had sent her money, and as she could not lend it advantageously she had sent it back to him, and she could not state whether she sent in one or more letters. When, she needed money, she addresed herself to him and he sent her some; that they had never had a regular settlement or division.

The plaintiff offered in evidence what purported to be a fragment of a letter written by Joseph Benoist which the court excluded. That paper reads as follows : ‘ ‘ There is here a Canadian by the name of Remi Adolphe Magnan. I have known him for eight or nine years. He is a brave and honest man, a gentleman and honest above all. Should I happen to die suddenly, you may write to him and he would give you the information to help you recover your moneys I have lent in your name, and which to-day amount to over twenty thousand dollars. Signed Joseph Benoist.” The exclusion of this particular piece of testimony was made the ground of exception by the plaintiff. Magnan was shown to have died before this suit was begun.

In September, 1878, Benoist wrote to Mrs. Blanchard and in his letter said: “With regard to your money, you may do as you please, it is your' business, • six per cent is a rather small interest, but it is better than to have a promise of a higher rate and to be troubled in getting it. I will not send you any money before my buildings are completed, because I may be short of money.”

Plaintiff offered in evidence an ante-nuptial contract between Joseph Blanchard and Mrs. Melvina Blanchard by which the property of both went to the survivor thereof at the death of either.

There was other evidence in the nature of statements and admissions in writing and oral by Benoist, tending to show that he had money of Mrs. Blanchard’s which he was investing for her, but the amount thereof was not shown by such statements* The evidence on the part of the plaintiff tends to show that Mrs. Blanchard was a half-sister of Joseph Benoist and they were both born in a French settlement in Canada, from which place Benoist emigrated to the United States in youth. Mrs. Blanchard was married to her husband in the year 1860. They were people of the laboring class with small properties. Prior to 1868, Benoist had settled at Baxter Springs, Kansas, and had established a mercantile business there, which prospered very greatly under his management. In 1868, it would seem at his suggestion, Mr. and Mrs. Blanchard sold their home in Canada and went to live with Benoist at Baxter Springs. The business at Baxter Springs was all in Benoist’s name and Mr. Darnall, a witness, who clerked for Benoist at that time, testified that he knew Benoist and Mr. and Mrs. Blanchard well and that he had never heard of anybody being interested in that business except Benoist himself. That Mr. and Mrs. Blanchard stated to him that they were dissatisfied there and Blanchard stated that he was working for wages for Benoist. Indeed, on the subject of Benoist ownership of that mercantile business, there is no substantial evidence that anyone else had any interest in it except Benoist himself. Blanchard brought with him from Canada about five hundred dollars in money, which he gave to Benoist for safe-keeping. In 1870, Blanchard returned to St. Charles, Canada, Benoist having returned to him five hundred dollars and furnished him transportation for himself and family. In 1872, Blanchard returned to Baxter Springs with his wife and daughter, Azama, hut without any money. From that time until his death in February, 1877, Benoist furnished to Blanchard and his wife and daughter a comfortable home, with horses, buggy, cows, implements, garden, etc., and Benoist took his meals with them, but slept in a room over his store. The store and the money drawer were open to Blanchard and his wife and Blanchard worked for Benoist, but during the last few years of his life, he was a confirmed invalid. A son was born to Mr. and- Mrs. Blanchard in 1876 and named Joseph. Shortly after Blanchard’s death in 1877, Benoist closed out his business at Baxter Springs, and advised Mrs. Blanchard to return to her husband’s and her own people in Canada. He provided her with railroad tickets to Montreal and money to pay her traveling expenses and packed and shipped her personal effects and such household goods as she desired. Subsequently he sent her money with which she bought a home in a village near Montreal and lived there until 1882. She and Benoist corresponded at intervals from 1877 until 1893. The evidence also tended to prove that Benoist transacted a large part of his business in the purchase of real estate and in the taking of notes and mortgages in Mrs. Blanchard’s name. The evidence on both sides is quite clear that Mrs. Blanchard did not act or live like one who had property to any considerable amount. She lived in her little cottage near Montreal, did all of her work, including her washing. She promised to pay Bissonnette upon his marriage to her daughter, one thousand dollars, and this she afterwards did by investing it in a home for her daughter in Montreal. At that time she had about three thousand dollars in the Bishops’ Bank. She" also promised to pay Roy, her other son-in-law, one thousand dollars when he married her other daughter, hut she never did, although the evidence shows that Roy was a poor man working in a butcher shop, and his wife was doing all the work of the housekeeping. Mrs. Blanchard broke up her housekeeping and sold her little place and put the money into the Bishops ’ Bank, which left her about twenty-four hundred dollars, and she then went to live with Bissonnette, and worked in the housekeeping, but never paid any board, although Mrs. Bissonnette swore in court on a trial in Montreal, that Mrs. Blanchard owed her seven hundred dollars for board which she never paid. In the numerous letters written by Mrs. Blanchard to Benoist, there are many acknowledgments of the receipts of moneys by her from him. In November, 1877, she acknowledged the receipt of five hundred dollars which he had sent her. In January, 1878, he sent her one thousand dollars, and in her letter acknowledging it, she says it shows his kindness for her. In 1878, a deed of conveyance was made from Howenstein, re-, ceiver, to Melvina Blanchard to certain real estate in Jackson county for $3,686.27, and in the following November Mrs. Blanchard made a general power of attorney to Joseph Benoist empowering him to lend, let, mortgage, encumber, sell or demise said real estate in the State of Missouri and Kansas. In a letter of September 29, 1878, the one in which he told her she could loan her money as she pleased, he added this postscript, “I send you herewith a document, which you will kindly sign, and have it testified by a clerk or other officer, who has a seal same as the one I sent you a year or so ago. The properties I have here are in your name and this document is to1 authorize me to act as your agent.” This document was evidently the power o'f attorney already referred to. In December, 1879, she wrote acknowledging the receipt of ten dollars and saying, “I am well pleased and I thank you much.” In that letter she asked him to let her decide to have one of her daughters take music, saying it would cost twenty dollars a, year and then adds, ‘ ‘ The payment which I have to make is of eighty-four dollars in the beginning of January. If you could let me have the money to pay, I would be much pleased.” On January 6, 1880, she wrote: “I hasten to write to you to tell you I have just received your letter with two fifty dollars, which were in it. I thank you a thousand times for your kindness and I am glad to learn that you are a little better.” On the 28th of January, 1880, she wrote him telling him of her daughter’s financial distress, and says, “I beg you in mercy to be willing to protect her in this moment. The good God will return it to you. It is a charity if you can give her-twenty-five dollars.” In her nest letter referring to the education of her daughter Azama: “I should be glad to have the means for her instruction if you are willing. I have received your letter with the twenty dollars.” On August 31, 1880, she wrote that she would like to have her daughter study music and said, “You will tell me if you are not willing, as by myself my means would not allow it to me.” And in December of the same year, she wrote him that she was obliged to have her kitchen repaired and it would cost twenty dollars, and said, “If you could help1 me a little I would be very much pleased. ’ ’ On the 9th of January thereafter she acknowledged the receipt of fifty dollars from him and said, “It has been hard for me to ask help from you. I know you have always been good to me. A thousand thanks for your kindness. I will never forget you.” On November 13, 1881, Mrs. Blanchard wrote Benoist acknowledging the receipt of twenty dollars and saying, “I am much pleased. I paid ten dollars to the Sisters, who said they were in much need of it. I could not pay them sooner as I had no money. I dressed the little girl for winter. I am through with every thing which I have carried from Baxter — that brought me this far. I make no needless expenses, I have as much as possible. The money goes quickly. I should be glad if you could come and judge for yourself. A thousand thanks for your kindness.” On March 12,1882, she acknowledged the receipt of twenty dollars and referred to some complaint of his that her expenses were too high. Mentioned the time they had been separated and says, “I never spend a day without thinking of you. I think very often that I am not sure to see again that good brother who takes the place of a father to my children. I thank the good Lord every day to have you as a protector.” About this time Mrs. Blanchard sold her property in.Beloiel and removed to Montreal.

In 1883, Benoist was building houses in Kansas City, and on January 1, 1884, he borrowed one thousand dollars from Mrs. Blanchard, paying her six per cent interest in advance. The interest he paid her semiannually in advance, and in November, 1891, he paid the note itself. On September 12, 1885, there was filed for record in Jackson county, Missouri, a conveyance dated and acknowledged March 12, 1881, from Melvina Blanchard to Joseph Ben'oist for the express consideration of twenty-five thousand dollars for the real estate conveyed to her in the three deeds filed July 6,1878, February 24,1880', and November 25,1880.

In January, 1887, Azama Blanchard, the daughter of Melvina Blanchard, married F. X. Bissonnette, and on March 7 of that year Mrs. Blanchard wrote Benoist as follows: “I hasten to answer your letter of the 27th, which I have just received with the bill enclosed. Thousand thanks for your kindness. . . . Perhaps you are going to blame me for giving one thousand dollars to Azama to buy one side of a house of two lodgings, one for themselves and the other to be let for eight dollars per month. It cost her one thousand, six hundred dollars. I did it with good intentions. Since you have asked me if I wished to enjoy it when they were all large or after my death. The one thousand dollars which you were willing to give her, can be kept by you for me to reimburse what I gave her. The six hundred dollars I loaned for three years at the same interest five per cent as they were placed, four hundred only remained at the Bishopric at five. I hope that you are not going to be angry, that you are going to retain the same amount to me since you were willing to give them to her, that will reimburse me later.5 ’

On March 4, 1889', Cazilde, the other daughter of Melvina Blanchard married Joseph Henry Roy.

On the 19th of March, 1889, Benoist loaned one thousand dollars to Enoch Gr. Dawson and Martha Dawson, his wife, and took their note for the same, payable in five years to Melvina Blanchard and secured by deed of trust to himself as trustee, this being the same note over which he had the litigation with Reed as to his priority. On December 27, 1889', Benoist wrote Mrs. Blanchard: “I send you herewith seventy dollars ; for the interest on my note for one thousand dollars to the first of July, thirty dollars; for your incidental expenses to the first of May, forty dollars. I also enclose you three insurance policies, which you will kindly sign where I have made the pencil marks. You will put them in an envelope which I also send you, and stamp it sufficiently that it will reach me safely. The properties upon which these policies were issued were in your name and when you transferred them to me, the policies became valueless unless they were transferred to the purchaser. I have neglected to send them before, but if the buildings happen to bum, I would have difficulty to collect the insurance. ’ ’ On February 22, 1891, Mrs. Blanchard wrote to Benoist: “Azama wrote to yon that she did not know where I had taken (should he gotten) the one thousand dollars, which I gave her on the marriage, she knows if I had not had them here I could not have given them to her at the same time I lent her the six hundred dollars before her marriage. She saw always the letters you sent me since she is married, and the money which you sent me.” Then she adds in the same letter, “that makes a hundred and fifty dollars, which I have given them in hand in three and one-half years. I did not wish to give more. I have always worked for my board very justly. ’ ’

Benoist visited in Canada in August, 1891, and the witnesses for the plaintiff, Mrs. Archamhault and Roy, the sister and son-in-law of Mrs. Blanchard, testified that at a certain family dinner party while he was there, Benoist stated that Mrs. Blanchard was certain to have fifteen thousand dollars for each of her children, that she was rich, and that her money was at the Friars in St. Louis, and she would have no trouble to get it. "When Benoist returned from Canada in 1891, he brought Mrs. Blanchard with him to Kansas City and he furnished a house for her there, but she concluded to return to Montreal in November of that year. He furnished her with her railroad ticket and money to pay her note of one thousand dollars and interest. Benoist at that time was sending the boy, Joseph Blanchard, to .school in St. Louis, and in1 the summer of 1892, he ordered Joseph back to his mother at Montreal. Mrs. Blanchard wrote him: “I am very sorry to learn that you have ordered the brothers to send Joseph away without knowing why. If he has done something wrong, I implore you in remembrance of his father and for me, give him the charity to permit him to graduate so that he could have got certificates and be placed by the brothers to make his living. . , , Bear brother, I beg your pardon, be willing to help him through charity. You have always been very good and you will be still.” Again that fall she writes: “It is the greatest punishment I can have in the world to see him in the sad position in which he finds himself. I cannot abandon him. He must eat and be dressed. I recommended myself to you imploring your help. You have always been good and I hope you are going to help me.” In July, 1893, Mrs. Blanchard and her son Joseph returned to Kansas City and were established in a residence of Benoist’s at Thirty-fifth and Genesee streets, and Joseph was put at school at the Christian Brothers. In November, 1893, Mrs. Blanchard became ill, and was sent to the Girls’ Orphan Asylum in Kansas City, while there, on the 24th of January, 1894, she ex-exeuted, acknowledged and delivered an assignment of all the mortgages then standing in her name to Benoist. This assignment recites that she held these mortgages for the convenience of herself and Benoist with a conditional right in them in case she survived him. She' died February 9, 1894. As already said, this action is brought to establish a trust on behalf of Mrs. Blanchard’s estate against the estate of Benoist to the amount of forty thousand dollars, on the claim that the various properties conveyed from time to time to Mrs. Blanchard, and afterwards conveyed by her to Benoist, and the various notes taken in her name and by her assigned to him before her death, were in fact her properties and not his. The circuit court found for the defendant, and dismissed the plaintiff’s bill, and rendered its decree accordingly. And from that decree, the plaintiff appeals. ,

I. That the plaintiff ^séakiJrelief in equity or a discovery of .assets, and to have those assets decreed to the plaintiff, both sides agree. The plaintiff insists that a suit in equity is the appropriate proceeding to enforce the claim of the plaintiff. On the contrary, it is insisted by the defendant that the plaintiff has an adequate remedy at law if the facts which he states are true, by presenting a claim for money received by Benoist in his life time and owing by his estate to the plaintiff as administrator of Mrs. Blanchard. The question whether a suit in equity or an action at law is the proper remedy, is one of substance under our Constitution, which secures to a defendant, in an action at law, the right of trial by jury. This has often been pointed out by the appellate courts of this State. Thus, in Humphreys v. Atlantic Milling Company, 98 Mo. 1. c. 548, Judge Blaok, speaking for this court, said: “The general rule is that a creditor, before he can maintain a creditor’s bill, must show that he has exhausted all remedy at law; and this because a court of equity will not entertain such a suit where the plaintiff has a complete and adequate remedy at law. . . . The distinction between suits in equity and actions at law, so far as the trial is concerned, must be maintained, so long as parties have a constitutional right to a trial by a jury in actions at law.” And in Benton County v. Morgan, 163 Mo. 1. c. 679, it was said by this court: “There is, however, an insurmountable objection to the plaintiff’s petition, and upon that ground, if no other, the demurrer was properly sustained; and that is, that plaintiff, admitting all-of the allegations in the petition to be true, has a complete and adequate remedy at law for the injury sustained.” [See, also, Planet P. & F. Co. v. Railroad, 115 Mo. 1. c. 619; Walker v. Railroad, 57 Mo. 275; Grocery Co. v. Clark’s Ex., 79 Mo. App. 405; Church v. Church, 73 Mo. App. 421; Glaves v. Wood, 87 Mo. App. 92.]

Plaintiff, however, relies upon section 187, Revised Statutes 1899, which provides: “All actions commenced against such executor or administrator, after death of the deceased, shall he considered demands legally exhibited against such estate from the time of serving the original process on snch executor or administrator.” This section, however, simply has reference to the time when claims and demands shall be considered exhibited within the meaning of section 185, Revised Statutes 1899, which provides that all claims shall be exhibited within two years, saving certain disabilities, and is not authority for holding that a bill in equity is the proper proceeding to obtain an allowance for a money judgment. In Butler v. Lawson, 72 Mo. 1. c. 245, this court repeated what it had previously said, that the jurisdiction of probate courts in this State does not extend over matters of purely equitable cognizance. Speaking of the facts in that particular case, it. was said: “This is no case of a demand against an estate for the debt of the decedent, where the allowance of that demand would be followed in usual course by an order for the sale of the lands for the payment of the debt, and where, of course, the remedy at law being amply efficacious would constitute an insuperable obstacle to equitable interposition, but a case where the beneficiaries, the pursuers of the trust fund, may, upon sufficient evidence of the conversion of that fund into certain specific property, elect to take the property itself.” Whereas, in this case, the plaintiff himself sues simply in his representative capacity as administrator and not as an heir or devisee of an alleged beneficiary and entitled to have a decree of title to specific property, but more than that, the petition proceeds to state that the deceased, Joseph Benoist, received the moneys of Mrs. Melvina Blanchard and loaned and invested the same for her to the amount of many thousand dollars, and that the same, together with the increase thereof, remained in his hands at the time of his death; that the total amount of the said moneys and property at the time of the death of said Benoist was forty thousand dollars, and there was a prayer that the defendant, as administrator of the said Benoist, he required to pay over to plaintiff the said sum with interest. Applying the rule announced in Butler v. Lawson, supra, this is a case . of a demand against the estate for a debt of the decedent, Benoist, where the allowance of that payment would be followed in the usual course by the administrator or executors of said Benoist satisfying the same out of the personal estate and if that should be insufficient then resorting to an order for the sale of lands for the payment thereof. This is a case in which the plaintiff is not seeking to pursue a trust fund into any specific property. On the contrary, the allegations of the petition amount to no more than that the deceased Benoist in his lifetime had and received moneys belonging to Mrs. Blanchard, which he had not paid over or accounted for during her life, and that her administrator, the plaintiff herein, is entitled to recover the same to1 the amount of forty thousand dollars. Counsel also cite us to Leeper v. Taylor, 111 Mo. 312. In that case the petition set out a declaration of trust by the defendant of certain real estate for the benefit of his father and mother, and that this trust had been kept secret from Mrs. Taylor by the fraud of the defendant, and the purpose of the bill was to require the defendant, as the trustee of an express trust, to account for the use of the trust property There can be no doubt that a suit in equity can be maintained in. those cases where fiduciary relations exist between the parties and the duty rests upon the defendant to render an account. Moreover, in Leeper v. Taylor the answer itself prayed' to have the declaration of trust canceled, and that of itself invoked the powers of a court of equity. The case of Est. of Glover & Shepley, 127 Mo. 153, was simply an appeal from a settlement between a removed administrator and Ms successor and involved only tbe credits wMch should be allowed the removed administrator, and it was simply ruled that certain equities, wMch the removed administrator claimed, would not be allowed in that proceeding, to-wit, an appeal from the judgment of the probate court, because the probate court had no equitable powers, and that case does not aid us in the determination of the point now before us. Tufts v. Latshaw, 172 Mo. 359, involved the settlement of a partnersMp estate in which a surviving partner made an assignment of the partnersMp assets, and the administrator of the partnership estate sought a decree against the assignee for all the funds which he held as such. The case throws no light whatever upon the question now under consideration.

Neither does the case of Wernse v. McPike, 100 Mo. 476. The evidence introduced by the plaintiff was not directed to any discovery of assets. The court was not asked to require the. defendant to produce any undisclosed evidence. The testimony on behalf of the plaintiff was apparently entirely under his control. It consisted of the evidence of the two sons-in-law of Mrs. Blanchard, Bissonnette and Roy, and of the deposition of Mrs. Archanbault, a half-sister of Mrs. Blanchard, tending to show admissions of Benoist of the possession by him of property belonging to Mrs. Blanchard, also the testimony of Milton: Campbell, Esq., as to the execution of the assignment of the various notes and mortgages by Mrs. Blanchard to Benoist and the record of some eight or ten deeds of trust securing notes payable on their face to Mrs. Blanchard. All of this evidence could have been introduced in an action of law upon a demand made under the statutes against the estate of Benoist in the probate court. Certainly the small number of items introduced did not call for an accounting or reference. In our opinion, upon the evidence and the theory of plaintiff’s petition, he had a complete and adequate remedy at law, and it was not at all necessary to have invoked the aid of a court of equity to have obtained full relief, if, in fact, the estate of Joseph Benoist was indebted to Mrs. Blanchard, on account of-the matters detailed in evidence.

II. But we have no method of ascertaining upon what theory the circuit court dismissed the bill, and as the learned counsel on both sides have discussed the case upon its merits, we have examined the testimony in the light of the pleadings. The allegations of the petition are so general and cover such a long period of time, some twenty-six years, from January 1, 1868, to March 1,1894, that the defendant can hardly be said to have been notified of what he was to meet, save and except that in a general way the plaintiff, as administrator of Mrs. Blanchard, seeks to recover moneys made from business ventures in which Joseph Benoist was engaged with Joseph and Melvina Blanchard, but when we turn to the testimony, there was no evidence worthy of the name of any joint business venture by Benoist and his sister and her husband. On the contrary, the evidence tends to show that Benoist alone had established a lucrative business at Baxter Springs, Kansas, as early as 1867, and from that date until he sold out his business, at that point, he was the sole and only owner thereof, and that Mr. Blanchard was employed by him as an assistant or clerk, and that Blanchard became dissatisfied with the wages he received and returned to Canada and remained a year or two and afterwards returned to Kansas, where he died in 1877, without having ever, to the knowledge of any witness in the case, made the slightest claim to an interest in Benoist’s business. Not only was it not shown that Blanchard contributed any capital to the Baxter Springs store, which was in Benoist’s name alone, but the testimony of Mr. Darnall, who was a clerk in that business, establishes that Benoist furnished Blanchard’s family a home and supplies, and that Blanchard’s principal work was as a mechanic, and that he rendered Benoist his principal services ini making repairs as a carpenter upon the three farms, which belonged to Benoist, in that vicinity. Darnall says that Blanchard did not handle any of the goods save now and then^ when he might happen to be around the store he would assist a little, and that both Blanchard and his wife expressed themselves as dissatisfied with their position there because the wages Blanchard was getting were not enough. Moreover, all the testimony shows that neither Blanchard nor his wife had any considerable property in Canada and the testimony indicates quite conclusively that Blanchard and his wife came to the United States with the hope of bettering their condition financially. In so far, then, as, the case rests upon the theory of a partnership or of a joint venture of the common means of Benoist and Blanchard in business, it is without any substantial testimony to support it. Indeed, the argument of the learned counsel for the plaintiff proceeds largely upon the theory that Benoist had voluntarily constituted himself a trustee for Mrs. Blanchard after her husband’s death by taking conveyances of real estate in Kansas City in her name, though he, paid for the same with his own means and by loaning his moneys on real estate, mortgages and other securities and taking the notes in her name. And the learned counsel earnestly argues that a man of the shrewd business capacity which the evidence shows Ben:oist to have been, would not have risked such a great proportion of his wealth in the name of his sister, knowing, if she had died with the legal title to these papers in her name, the difficulties he would-have encountered in recovering them from her heirs, and that these transactions on his part stamped upon these papers the character of a trust of which he could not subsequently divest himself. And counsel in aid of this contention call attention to the fact that soon after Benoist had settled in Kansas City he acquired three pieces of real estate and caused the titles to be made to Mrs. Blanchard and then took from her a general power of attorney for the management of the same, but as to the real estate the evidence discloses that, on the 12th of March, 1881, at Benoist’s request, Mrs. Blanchard conveyed to him all the real estate in the said three deeds mentioned. Prior to that time, in- 1878, he wrote to Mrs. Blanchard that “the properties I have here are in your name and this document [evidently the power of attorney which he had caused her to give him] is to authorize me to act as your agent.” And later on after she had conveyed the properties to him, he sent her the insurance policies to assign to him lest in case of fire he might have difficulty in collecting the insurance. In all this large volume of testimony, there is not a word indicating that Mrs. Blanchard ever claimed that she was the owner in fact of said real estate, or that sbe ever made any claim in. all the long correspondence between her and her brother that he was indebted to her in any manner for the purchase money for said lots, which she had conveyed to him at his request. What motive Benoist had in placing his property in his.sister’s name, we can only conjecture. He was a lone man in the world, his wife and children having died in his early manhood, and the only relatives he had in the world were the half-sisters in Canada, and of these Mrs. Blanchard seems to have been his favorite kinswoman. After having caused the real estate to be conveyed to himself, Benoist continued to loan his accumulations on real estate security and to take the notes in Mrs. Blanchard’s name, and it would seem that these notes and their proceeds constitute the basis for the claim of forty thousand dollars, which is now made by Mrs. Blanchard’s administrator against Benoist’s estate, but while these investments in such large sums were being made by Benoist in his sister’s name, in all of the correspondence between them there is nothing indicating that Mrs. Blanchard regarded these moneys or these notes and securities as her own save as she said “if she survived him, she would have a conditional right therein,” and as he had doubtless informed her. On the contrary these letters of Mrs. Blanchard to Benoist breathed a most admirable spirit of gratitude on her part for the constant kindnesses which he was. showing her by ■ remitting her moneys from time to time for her support and that of her children. If Benoist had in any manner indicated to Mrs. Blanchard that he had invested for her moneys to the amount of twenty thousand to forty thousand dollars, her letters to him are inexplicable. In none of them are to bo found demands for rents or interest which would have enabled her to have escaped the hard work which she wrote him she was compelled to do in order to earn her board in her own daughter’s home. But over and over again these letters all demonstrate that she regards herself as the object of his bounty, which she again and again touchingly dwells upon. Thus in her letter of January 9, 1881, she says, “And at the same time I have received -the fifty dollars, which the letter contained. I was through my work at the end of October. It has been hard for me to ask help of you. I know that you have always been good to me. A thousand thanks for your kindness. I will never forget you.” Again and again she besought his kindness and charity to assist her in providing for her children. Out of the three thousand dollars, which he had provided her with which to buy her a home and to support herself, it seems that she gave to her daughter Azama upon her marriage oue thousand dollars and loaned her the further sum of six hundred dollars with which to buy a home. Speaking of this in her letter she said, ‘ ‘ The one thousand dollars which you were willing to give her, can be kept by you for me to reimburse me for what I gave her. I hope that you will not get angry, that you are going to retain the same amount for me since you were willing to give them to her; that will reimburse me later.” Again she applied to him to aid her other daughter on account of her poverty, and when she desired to have her daughter study music, she applied to him for his consent to do so, and saying that her “own means would not allow her to incur the expense,” and about the same time told him that she was through with everything that she had brought from Baxter Springs. But without reproducing these numerous letters all indicating unmistakably that Mrs. Blanchard was a woman without any means save and except those which had been furnished her by Benoist, the conclusion can be stated that they completely refute the theory and contention of the plaintiff that Mrs. Blanchard during all the period of that correspondence entertained the idea that she was the owner of the valuable estate in Kansas City, which her administrator now asserts. In 1883, it seems that Benoist was building some houses in Kansas City, and about that time gave his note to his sister for 'one thousand dollars and for six years afterwards he paid her six per cent thereon semiannually, and Mrs. Blanchard’s receipts for the same were endorsed on this note, and at the time of Benoist’s death, this note was found canceled among his papers. It seems that Benoist made a visit to Canada about 1891, and induced Mrs. Blanchard to return with him to Kansas City, but for some reason: she soon concluded to go back to her children. Again, in 1893, she once more returned to Kansas City and was established by Benoist in one of Ms houses, but her health began to fail rapidly and seeing that she must die, Benoist had her assign to him by a general assignment the various notes of his which were in her name. TMs assignment is assailed by the plaintiff, but the testimony of Mr. Campbell, the notary public who prepared the same and took the' acknowledgment thereof, and who was a witness for the plaintiff, affords no basis for the insistence of the plaintiff that Mrs. Blanchard did not understand the full nature of that transaction and that it was not a voluntary act and deed. On the contrary the certificate of the notary is corroborated by the sister of charity, who was present at the time, as well as Mrs. Blanchard’s own letters to the effect that Mrs. Blanchard understood English sufficiently well to know the character of the assignment, but not content with this Mr. Campbell testifies that the paper was translated into French and Mrs. Blanchard made fully acquainted with its content's. Much stress is laid in the argument upon the conversation which Joseph Benoist is alleged to have had while in Canada in 1891, at the house of his niece at a dinner at which his sisters and nieces and their husbands were present. Mrs. Archanbault and Mr. Roy testified that Benoist in- that conversation said that “Mrs. Blanchard was a woman of means, that she could afford to pay for .a good education for her children, that she had forty-five thousand dollars to divide among her three children and her boy would have fifteen thousand dollars, and that if he (Benoist) died first, Mrs. Blanchard would have no trouble, because a Christian Brother in St. Louis would be authorized to settle up everything. ’ ’ But the circuit court must have concluded, as we do, that such statement, resting entirely upon the uncertain memory of witnesses after so long a time, could not be made the basis of a decree or judgment against Benoist’s estate for fifteen thousand dollars and interest, when all the facts and circumstances are considered together. It must he borne in mind that Mrs. Blanchard died five years before Mr. Benoist, and that her children and her sons-in-law made no demand' upon Benoist for this money, nor took any steps to recover the same or for aught that appears made no inquiry as to the investment, of this large sum of money, of which their testimony clearly shows they were in, need at the time. Testimony of this character adduced for the first time after the party which it is sought to charge is dead, when there were ample opportunities in his life time to make the claim, is justly regarded with great suspicion by the courts and as entitled to very little weight. We have not been unmindful of the various propositions advanced by the learned counsel for the plaintiff to the effect that a trust in personalty may be established by parol evidence and parol admissions; and that no set form of words is necessary to create a trust, as to dealings between trustee and beneficiary, but all these propositions while recognized and established as they are, must be applied to the facts of a given case and moreover must be based upon proper allegations in the pleadings so as to advise both court and counsel of the claim of the plaintiff. We are wholly unable to agree with the learned counsel that the testimony in this case establishes any trust in Benoist for the benefit of Mrs. Blanchard. On the contrary, we are impressed after a careful reading of the record and a consideration of the relation of Mrs. Blanchard and Mr. Benoist to each other, that all there is to this case is that Benoist in his life time used his half sister’s name in his business, and that she recognizing that it was his property and not hers, in her last illness turned back to him the legal title to that which was already his, in order, as she said, “to carry out the true and honest purpose and intent to which I have heretofore held said property. ” We cannot escape the conclusion which forces itself upon us that these notes and securities were in fact and in truth the property of Joseph Benoist, which he had accumulated by his own thrift and energy, and it was never his purpose to deprive himself of the beneficial ownership therein as long as he lived; that he did at one time intend to provide liberally for his sisters, and that he did make wills with that object in view, there can be no doubt, but that he ever intended these notes to become irrevocably the property of his sister, we do not believe, nor do we think that his sister, Mrs. Blanchard, ever so thought for one moment.- He at all times retained possession of the notes. It was his money that was loaned to the several borrowers. We are asked to declare a trust in all these notes upon the isolated fact that Benoist' caused them to be made to Mrs. Blanchard as payee therein. To constitute a trust there must be an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created. [Young v. Young, 80 N. Y. 438; Beaver v. Beaver, 117 N. Y. 1. c. 428 and 430.] In this last-cited case, the Court of Appeals of New York, in a case in which a deposit in the name of another was claimed as a trust for such other, said: “We cannot close our eyes to •the well-known practice of persons depositing in savings banks money to the credit of real or fictitious persons, with no intention of divesting themselves of the ownership. It is attributable to various reasons; reasons connected with taxation; rules of the bank limiting the amount which any one individual may keep on deposit; . . . the desire, on the part of many persons, to veil or conceal from others knowledge of their pecuniary condition. ’ ’ To like effect, Getchell v. Bank, 94 Me. 452; Parkman v. Bank, 151 Mass. 218.

m. Error is assigned by the plaintiff to the exclusion of the writing identified as exhibit “P” in the record, being the same already copied in tbe statement, and which refers to tbe Canadian, Magnan, and in wbicb occurs this sentence, “Should I happen to die suddenly, you may write to him and he would give you the information to help you recover your moneys I have lent in your name, and which to-day amount to over twenty thousand dollars. Signed, Joseph Benoist.” When this paper was offered, counsel for the defendant objected to its admission in evidence, first, because there was not sufficient proof of the signature of Benoist to it, and, secondly, that it is only the fragment of a paper. It was not addressed to any person and bore no date, and there was absolutely no evidence as to what the missing parts were. The court sustained this objection. As this paper was not directed to Mrs. Blanchard and bore no date and confessedly only purported to be a fragment of some other writing, and with no evidence that any person had ever seen the complete writing or what it referred to, or what it contained, we are of the opinion that no error was committed in excluding it. The cases cited by learned counsel for the plaintiff where only a portion of a complete instrument is offered and the opposite party has the privilege of offering all the balance of the document if he so desires, do not meet the objection alleged against this paper, neither is the case of an accidentally defaced paper in point. The difficulty here is that no one can say to whom this paper was directed, if to any one, or in what connection it was written, or what the context of the paper was or its date. We think it was properly excluded.

There are other propositions as to the exclusion of evidence, such as a marriage settlement and the citizenship papers, but their exclusion could not in any event affect the real merits of the case.

Having given the case our best consideration, we are of the opinion that the judgment of the circuit court was correct, first, on a technical ground, that the plaintiff’s remedy, if any, was by the presentation of the claim or demand against the estate of Joseph Benoist in the probate court, and, second, that upon the evidence the circuit court correctly held that the plaintiff did not make out the case stated in his petition, and, third, that plaintiff established no such trust relation as plaintiff seeks to maintain in his argument and brief in this court, hut that if he had, such claim is contradictory of that asserted in his petition. The judgment of the circuit court finding the issues for the defendant and dismissing plaintiff’s hill is affirmed.

Fox, P. J., and Burgess, J., concur.


source: Caselaw Access Project

author: FOX, P. J.

license: Public Domain

text:
    MINERS’ BANK, Appellant, v. KINGSTON et al.
    Division Two,
    June 11, 1907.
    1. PETITION FOR REVIEW: No Appearance or Service: Knowledge. Where a petitioner made no appearance to the attachment suit and was not served with personal process as provided by the statutes, it is not incumbent upon her, as a precedent right to maintain her petition to review the judgment rendered against her in the attachment suit, to show that she had no actual knowledge of the existence of that suit; but whether she heard of the suit or not, she is entitled under the statute to maintain her petition for review, if brought in time.
    2. -: Attachment: Notice to Tenants. The statute requiring the officer in an attachment, brought by publication against alleged non-residents, to give notice to the actual tenants of defendant at least ten days before the return day of the writ, is mandatory and is not complied with by a notice given after the return term reciting that the case will not be triable until the next term — and that must be the ruling even though the clerk failed to issue an order of publication for the return term, and at that term an order of publication was obtained returnable to the next term. And where such are the facts the court should entertain a petition to review the judgment against the non-appearing defendant who was not actually served with process.

      3. -: Testimony. The petition of a non-appearing defendant in an attachment suit, who was not served with process, to review the judgment therein, being sufficient, should be sustained on testimony tending to show petitioner had a meritorious defense to that action or that the petition of plaintiff therein was not true in a matter material to the issue presented.
    4. -: Judgment: Further Proceedings. The order of the court reciting that the petition to review a judgment “is taken up and being seen and heard and fully understood by the court is sustained,” is correct as far as it goes, but- is not complete. It should be followed by an order that the judgment be set aside on condition that defendant answer or demur to the petition of plaintiff on which the judgment was rendered, within a reasonable time, to be ordered by the court.
    Appeal from Jasper Circuit Court . — Hon. Hugh Dabbs, Judge.
    Reversed and remanded {with directions).

      McAntire & Scott for appellant.
    (1) The court refused to consider the question of the carelessness and negligence of defendant Hannah M. Kingston in not appearing after she had knowledge of the existence of the suit against herself and her. husband, which was error. On October 17, 1902, a_s shown by her letter of that date, she had knowledge of the fact that the bank had brought a suit and named her as a party to that company. No distinction can be made between, the force and effect of a judgment rendered upon actual or constructive notice where •constructive service is authorized' by law, except such as is made by statute. The court in this case, when it rendered judgment in favor of the Miners’ Bank, had jurisdiction -of the subject-matter, and the service by publication was regular and as required by law, and such being the case, the judgment is as final and conclusive as it would have been if there had been personal service, — with the exception, however, of the right to review. Jones v. Drisldll, 94 Mo. 199 ; Irvine v. Leyh, 124 Mo. 366; Tooker v. Leake, 146 Mo. 430; Ryder v. Ins. Co., 101 Mass. 548. (2) The motion to set aside the order sustaining a petition for review and for new trial should have been sustained for the reason that the order was not made in accordance with the statute. The statute provides that the order can only be made “on condition that the defendant answer or demur to the petition of the plaintiff on which the judgment was rendered within a reasonable time, to be ordered by the court.” R. S. 1899, sec. 780. (3) The presumption is that the evidence was sufficient at the trial of the attachment suit case to authorize the judgment against both defendants, and if the defendant was, as we claim, negligent in not appearing and defending, the petition for review should not have been sustained. Irvine v. Leyh, 102 Mo. 200; Smoot v. Judd, 161 Mo. 687; Mueller v. Mc-Culloch, 59 ’ Minn. 409; Cutler v. Button, 51 Minn. 550. (4) Defendant was guilty of laches after she had knowledge on October 17, 1902, and again in June, 1903. (5) It is held that an application to open a judgment and for leave to answer made under the provision of a statute of Minnesota ought not to be granted when the presumption that the party in default has been diligent after receiving notice of the pendency of the action is expressly and conclusively rebutted, as it was in this case, even though done within the time fixed by the statute. Mueller v. McCulloch. 59 Minn. 409; Cutler v. Button, 51 Minn. 550.

      Thomas Bolán and H. 8. Miller for respondents.
    (1) There is no question in this proceeding either of diligence or negligence of either appellant or respondent. It is not a question of knowledge, or want of knowledge, of the action that is sufficient to so bring a party before a court as to have an unimpeachable judgment rendered against him, but service of summons as required by law. When this is not had, and ro appearance is entered, the statute provides that the judgment may on showing made be set aside. The statute makes no exceptions, either in favor of diligence or against negligence. (2) The other objection of appellant deserves more notice. It complains that the court did not make the judgment of review setting aside the judgment of appellant conditioned on respondent’s answering or demurring within a reasonable time to the petition of appellant. This was omitted, but the judgment need not for this reason be reversed, but may be. modified by this court. Elliott on Appellate Procedure, sec. 567.
   FOX, P. J.

This cause is here upon appeal by the plaintiff from a judgment of the circuit court of Jasper county, Missouri, sustaining a petition for review and setting aside a judgment rendered in an attachment proceeding in favor of the plaintiff and against these defendants.

This is an action instituted by petition in the circuit court of Jasper county, before the Hon. Hugh Dabbs,' on the 25th day of November, 1903, for review of a judgment rendered in said cause on the.4th day of March, 1903, which said judgment was in favor of the Miners’ Bank against T. H. Kingston and Hannah M. Kingston, partners, doing business under the firm name of T. 'H. Kingston & Company, wherein the Miners’ Bank brought suit by attachment and attached a lot and a part of another lot in the city of Joplin to satisfy a elaim against T. H. Kingston & Company for the sum of $457.35. The plaintiff in the attachment suit brought its suit on the 14th day of June, 1902. In its petition it alleged that the defendants were non-residents of the State of Missouri, and also in its affidavit for attachment alleged that the defendants were non-residents, and as a second ground of attachment that T. H. Kingston had fraudulently conveyed his property and effects so as to hinder and delay his creditors. The case was returnable to the September term, 1902. The clerk omitted to issue an order of publication for that term. At the September term, 1902, an order of publication was obtained against the said defendant, returnable to the March term, 1903. The real estate, lot 37 and the south thirty feet of lot 36 in Gray’s Second Addition: to Joplin, was attached on the 14th day of. June, '1902. On January 2, 1903, the sheriff of Jasper county served a notice upon M. B. Coburn and Annette Coburn, notifying them that those lots had been attached and levied upon by virtue of a writ of attachment which was originally returnable to the September term, 1902, and that the property was attached as the property of T. H. Kingston and Hannah M. Kingston, but owing to the fact of the failure to obtain service upon the defendants by publication, the same would be triable at the March term, 1903. Publication was made in due form more than fifteen days before the first day of the March term, 1903. The real estate was afterwards sold under special execution. Then on the 25th day of November, 1903, the defendant Hannah M. Kingston instituted suit against the plaintiff for a review of judgment. In her petition she alleged:

“That on the 4th day of March, 1908, the Miners’ Bank obtained a judgment for $430.08 on the first count of its petition and forty dollars on the second count of its petition. That the said judgment so obtained by said plaintiff was in an attachment suit against the defendant Hannah M. Kingston and T. H. Kingston and in said suit the said plaintiff caused to be attached the property before described. That the said plaintiff, in •its petition filed in said cause, alleged, among other things, that the defendants and each, of them, were non-residents of the State of Missouri, and could not he served with the ordinary process of law. That an order of publication in due form was thereupon issued to the clerk of this court and the same was duly published in the Joplin Globe, a newspaper published in Joplin, Missouri, at least once a week for four consecutive weeks, the last publication being at least fifteen days before the first day of the March term, 1903, and the plaintiff so gave constructive notice to the defendants in said suit, but defendant further states that she had no actual notice of said suit and no appearance was made by her or anyone for her in said suit, and the said judgment was rendered against her upon default or failure to appeal and plead in said cause. The said defendant Hannah M. Kingston further states that she had and now has a meritorious defense against plaintiff’s said suit, in this: That the plaintiff’s said suit was founded upon a certain promissory note executed to said plaintiff by said defendant, T. H. Kingston, for and in the name and on behalf of said T. H. Kingston & Company, a corporation then existing and being composed of said T. H. Kingston and Frank Kingston, who were the sole partners in said firm. That the said plaintiff in its petition alleged and charged that the said firm of T. H. Kingston & Company was composed of T. H. Kingston and Hannah M. Kingston, and alleged and charged that said defendant was one of the partners of said firm SO' executing said note, and jointly liable with the said T. H. Kingston.
“This defendant states that such allegation was not time, but that this defendant was not a partner in the firm of T. H. Kingston & Company and had no interest in said firm, and had no interest or share in the consideration for said note, and this defendant further states that she has not at any time claimed to have any interest in said firm or its business, and has not held herself out to the plaintiff as a partner in said firm, and this defendant further states that she was not at the time of said suit or at any other time indebted to the plaintiff. Wherefore, she asks the court to reopen and review the said cause and to discharge her hereof with judgment for her costs.”

The petition was sworn to. The answer of the defendant admitted that at the March term, 1903, it obtained a judgment against Hannah M. Kingston for $438.08 on the first count and forty dollars on the second count; admitted that the suit in which judgment was obtained was an attachment suit brought against Hannah M. Kingston and T. H. Kingston, and that in said suit caused to be levied upon lots 37 and south thirty feet of lot 36 in Gray’s addition to the city of Joplin; admitted that said plaintiff in said petition alleged among other things that said defendants, and each of them, were non-residents of the State of Missouri, and could not be served with process in this State; admitted that the order of publication in due form was thereupon issued and the same was duly published in the Joplin Globe, a newspaper published in Joplin, at least once a week for four consecutive weeks, the last publication being at least fifteen days before the March term, 1903, of this court; admitted that the plaintiff so obtained constructive service upon the defendants to this suit, and the plaintiff admitted that no summons was served upon defendant in person and no appearance was made for her by anyone, and that judgment was rendered upon her failure to appear and plead. The defendants denied the other allegations in said defendant’s petition for review. As a second defense the plaintiff herein answering, states, that the said lot 37 and the south thirty feet of lot 36 in Gray’s Second Addition to the city of Joplin, being the property levied upon by the plaintiff in this case, had been purchased with the individual money of the said T. H. Kingston, the other defendant herein', and that he, with intent to cheat and defraud his creditors, had the same deeded to his wife, Hannah M. Kingston, without any consideration whatever. That the said conveyance to his wife was made for the purpose of concealing and covering up his own property and with the intent to hinder, delay and defraud his creditors, all of which the said Hannah M. Kingston well knew. That after the said property was conveyed to the said Hannah M. Kingston, the said T. H. Kingston and Hannah M. Kingston, with intent to cheat and defraud the creditors of Hannah M. Kingston and T. H. Kingston, without any consideration whatever, and with intent to hinder, delay and defraud the creditors of T. H. Kingston, conveyed the property to the New England Home Buyers’ Association of Boston. Third, the defendant further answering to said petition of Hannah M. Kingston, states that on October 17, 1902, long prior to the time the said suit of the bank vs. the defendants was tried, the -defendant had actual notice of the pendency of said suit, and she carelessly and negligently failed to make a defense in said suit which she was entitled to make therein if she had desired to contest the same. Wherefore the plaintiff having fully answered, asks that judgment be rendered in its favor by dismissing said defendant Hannah M. Kingston’s petition for review. At the June term, 1904, the matters put in issue by the petition of Plannah M. Kingston for review of the judgment and the answer of the appellant, came up for trial. We deem it unnecessary to set out in detail the evidence introduced by the parties upon the issues presented. It is sufficient to enable us to determine the legal propositions to substantially refer to the tendency of such proof.

It is conceded in this proceeding that the petitioner, Hannah M. Kingston, in. the original attachment proceeding wherein a judgment was rendered against her, was not personally served, but was brought into court by order of publication in due form, more than fifteen days before 'the first day of the March term, 1903. The record further discloses that the writ of attachment in the original proceedings was issued and levied upon lots 37 and the south thirty feet of lot 36 in Gray’s addition to the city of Joplin, on the 14th day of June, 1902. This writ of attachment was made returnable to the September term, 1,902. The record further discloses that M. B. Coburn and Annette Co-burn were tenants occupying the real estate levied upon by the writ of attachment. It further appears from the record that the following notice was served upon the tenants in possession of the real estate on the 2nd day of January, 1903:

“ To M. B. Coburn and Annette Coburn:
“You as the actual tenants of T. H. Kingston and Hannah M. Kingston occupying lot thirty-seven (37) and the south thirty (30)- feet of lot thirty-six (36) in Gray’s Second Addition to Joplin, as their tenants, are hereby notified that the real estate above described has been attached by the Miners’ Bank and levied upon by virtue of a writ of attachment which was originally returnable to the September term, 1902, as the property of T. H. Kingston and Hannah M. Kingston, but owing to the fact of a failure to obtain service upon T. H. Kingston and Hannah M. Kingston by publication, the same will be triable at the March term, 1903, J oplin, Mo., January 2, 1903.
“James T. Owen, Sheriff of Jasper County,
“By C. H. Kier, Deputy Sheriff.”

The testimony on the part of the petitioner, Ham nah M. Kingston, tended to show that she has a meritorious defense against plaintiff’s original suit by attachment and that the allegation in the Miners’ Bank’s petition in such attachment proceeding, alleging and charging that the said firm of T. H. Kingston was composed of T. H. Kingston and Hannah M. Kingston, and alleging and charging that said defendant was one of the partners of said firm executing the note sued on and was jointly liable with the said T. II. Kingston, was not true.

The testimony on the part of the plaintiff, the Miners ’ Bank, tended to show that Mrs. Kingston, the petitioner in the case at bar, heard that the lots were attached, by letter received in June, 1903, by Mr. Kingston from Mr. Coburn, her tenant in the Joplin house. In October, 1902, she wrote a letter to the Miners’ Bank in which she said: “I understand you have brought suit against T. H. Kingston & Company and named me as part of that Company. I am not, nor never was part of that Company. Yours truly, Hannah M. Kingston.”

At the close of the evidence the cause was submitted to the court and on the 11th day of June, 1904, the petition for review of the judgment filed by Hannah M. Kingston was sustained. A timely motion for new trial was filed and by the court overruled, and from the finding and judgment of the court upon this petition for review the plaintiff prosecuted this appeal and the record is now before us for consideration.

OPINION.

The record in this cause discloses the following assignment of errors:

First. That the court erred under all the evidence in sustaining the defendant’s petition for review.

Second. The court erred in refusing to set aside the order sustaining the petition and to grant a new trial.

I.

It is conceded that the petitioner, Hannah M. Kingston, was not brought into court in the original proceeding by personal service, but by order of publication. This proceeding is predicated upon the provisions of section 777, Revised Statutes 1899, which provides that, “When such interlocutory judgment shall be made and final judgment entered thereon against any defendant who shall not have been summoned as required by this chapter, or who shall not have appeared to the suit, or has been made a party as the representative of one who shall have been summoned or appeared, such final judgment may be set-aside, if the defendant shall, within the time hereinafter limited, appear, and by petition for review, show good cause for setting aside such judgment.”

It is also conceded that the petitioner instituted this proceeding within the time provided by the statute, hence there is really but one question before the court, and that is whether the evidence developed upon the trial of the issues in this proceeding was sufficient to authorize the court to sustain the petition for review and vacate the judgment.

The record discloses that the petitioner made no appearance to the suit and that she had not been summoned as required by law.. There was also evidence tending to prove that the judgment which was obtained by the appellant was predicated upon a petition which alleged that respondent, Hannah M. Kingston, was a member of the firm of Kingston & Company, and that such allegation was not true in fact.

It is earnestly insisted by learned counsel for appellant that it was incumbent upon the petitioner, before she is entitled to the relief sought in her petition for review, to show that she had no actual knowledge of the existence of the suit. It is further urged that the respondent petitioner, as disclosed by the record,in this canse, having heard of the institution of this attachment suit and taking no steps to enter her appearance and make defense, she is in no position to avail herself of the provisions of section 777, supra. We are unable to agree with'learned counsel respecting these contentions. In support of this insistence we are cited to the case of State ex rel. v. Scott, 104 Mo. 31. An examination of that ease will clearly demonstrate that it has no application to the disclosures of the record in the case at bar. In the Scott case the defendant appeared at the original suit by attorney, and this fact is expressly stated by the learned judge rendering the opinion, and it is finally concluded that having appeared to the suit it presented simply a case where a motion to set aside the judgment for irregularity was the appropriate remedy, and it was expressly ruled that it was not the purpose of the statute to substitute a petition for review for a motion to set aside a judgment for irregularity. No such motion was filed in that case and the court very properly held that it did not disclose such a case as entitled the petitioner to the relief awarded under the provisions of the statute authorizing a bill for review.

Our attention is directed to the cases of Ryder v. Phoenix Insurance Co., 101 Mass. 548; Mueller v. McCulloch, 59 Minn. 409, and Cutler v. Button, 51 Minn. 550. A careful analysis of those cases convinces us that they do not support the contention of appellant. In the Massachusetts ease it will be observed that there is no similarity between that proceeding and the case at bar. That controversy related to a policy of insurance, and in the petition for review plaintiff claimed that there was some mistake as to the insurable interests of certain parties, and that the agreed statement of facts upon which the cause was submitted was entered into in consequence of that error. It was alleged in that case “that the plaintiffs, until about the time of filing the motion to vacate the judgment (when they were informed of their error by their counsel in consultation upon another matter), supposed and believed that the insurable interests of the Smiths were only five-sixteenths of the value remaining after deducting the amount of the plaintiffs’ advances, which interests would not exceed the amount of the prior insurance thereon; and that the statement of facts was agreed upon in consequence of that error.” The Supreme Judicial Court of Massachusetts, speaking through Justice Cray, deemed it unnecessary to determine other questions in the case and assigned as a reason why a review should not be granted in that proceeding, that “the.faets upon which it depends were peculiarly within the knowledge of the plaintiffs, and the legal effect thereof upon their rights might easily have been ascertained before submitting the case to the judgment of the court. To allow them to be shown after a case has been formally submitted and arsrued to the full court upon a state of facts agreed, and final judgment ordered and entered, would be to- establish a precedent which would encourage negligence and promote litigation. We are therefore of opinion that the plaintiffs show no cause for vacating the judgment or granting a review. [Clark v. Brigham, 22 Pick. 81; Taylor v. Columbian Insurance Co., 14 Allen 353; Gayler v. Wilder, 10 How. 509; Young v. Keighly, 16 Ves. 348.] ”

It is manifest that case furnishes no support to the contention of appellant in the case at bar, for in that proceeding, as evidenced by the opinion of the learned judge, there was a full appearance and the case was contested and formally submitted to the court by the parties appearing, and it was properly held that a review should not be granted and the judgment vacated. But that is not this case. We have here a petitioner for review who was not served with personal process as provided by the statute, who made no appearance, either in person or by attorney to the suit; hence we are of the opinion that the petitioner has brought herself clearly within, the provisions of the statute.

It is sufficient to say of the Minnesota cases that the provisions of the statute of Minnesota upon which those proceedings were predicated were entirely dissimilar to the provisions of the statute under which the petitioner in the case at bar is proceeding. It is apparent from the decisions in those cases that no definite time is fixed by the statute upon which they are based for filing petitions for review, but that this is a matter wholly within the proper exercise of the discretion of the court, as to whether or not the application to vacate the judgment has been made within a reasonable- time after the actual knowledge of such rendition of such judgment had reached the party applying to have it set aside. The statute under which the petitioner in this case is proceeding plainly provides that the final judgment may be set aside if the defendant shall within the time hereinafter limited appear and by petition for review show good cause for setting aside such judgment, and the subsequent provisions of the statute fix the time definitely in which the party shall have the right to resort to the remedy furnished by section 777 by petition for review.

We are unwilling to say that the mere fact that the respondent in this cause having heard of the institution of this suit by attachment and failed to appear either in person or by attorney, and make defense to the action, would deprive her of the right to avail herself of the provisions of the statute in reference to having the cause reviewed. There was no personal service with process, and even though she knew that the proceeding had been instituted, she would have the right to rely upon the provisions of the statute, and if within the period as fixed by it she presented her petition with a sufficient showing of good cause why the proceeding should he reviewed, we see mo legal reason to prevent her from being awarded the relief sought.

In Siling v. Hendrickson, 193 Mo. 365, it was sought in that case to avoid a defect in the proceeding in reference to notice to the actual tenants as provided by section 388, Revised Statutes 1899, by showing that al-. though the actual tenants were not notified as required, still they had actual notice of the pendency of the suit prior to the rendition of the judgment, and it was insisted that this sufficiently met the requirements of the statute. This court, however, announced in that case that this contention was untenable, and said: “It might with equal propriety be claimed that a court acquired jurisdiction of a defendant, who had not been brought into court by any sort of process, by showing, dehors the record, that the defendant actually knew there was a suit pending against him. The requirements of the statute are mandatory, and this is so for wise reasons, to-wit, that the record shall affirmatively show that the notice that the law requires was served upon the defendant and that the matter of whether or not a defendant had notice should not be allowed to rest in parol.”

But aside from what has heretofore been said as to the sufficiency of the evidence disclosed by the record to authorize the court to sustain the petition for review, it is manifest from the record before us that the court was fully justified in sustaining the petition for review and vacating the judgment for the very apparent reason disclosed by the record in the original proceeding, that the provisions of subdivision 3 of section 388, supra, in respect to giving notice to the actual tenants, were not complied with. It will be observed that the subdivision of the statute above referred to, after enumerating the essential requirements of the return of the officer upon the writ of attachment and what such, return shall embrace, then follows, this provision: “And the officer shall moreover give notice to the actual tenants, if any, at least ten days before the return day of the writ, and state the fact of such notice and the names of the tenants in his return.” This provision of the statute relating to notice and the necessity of strictly complying with it, has bad the careful attention of this court in the recent cases of Walter v. Scofield, 167 Mo. 537, and Siling v. Hendrickson, 193 Mo. 365. The questions in those cases were very carefully considered and all of the authorities touching the subject were exhaustively reviewed and the conclusion was announced that the provisions, of the statute requiring the actual tenants to be notified, were mandatory, and that it was essential to the jurisdiction of the court that the provisions of the statute be complied with, and as evidence of the compliance with the provisions of the statute it was equally essential that the officer, as required by the statute, should state the fact of such notice and the names of the tenants in his return. It was expressly ruled that the provisions of this statute were mandatory, and the matter of whether or not there was notice should not be allowed to rest in parol. The record in this cause discloses that the writ of attachment was served upon the 14th day of June, 1902, and was made returnable at the September term, 1902. The notice as indicated in the statement of this cause was not only not served upon the actual tenants ten days before the return day of the writ, but was not served until long after the term at which the writ was made returnable. It is sought to avoid the defects in this notice and in the service of it by the service of a notice which states to' the actual tenants that the land had been levied upon by attachment under a writ of attachment originally returnable to the September term, but that the case would not be triable until the March term, 1903. This was clearly not a compliance with that statute and there is no provision of the statute which authorizes or even recognizes the character of notice given to actual tenants in this proceeding as disclosed by the record. The notice to be given to the actual tenant is purely statutory and as this court has expressly ruled that the provisions in respect to such notices are mandatory, therefore in order to fall within the provisions of that statute they must be at least substantially complied with.

There was a sufficient showing made upon the trial of the issues before the court in this proceeding to warrant the court in sustaining - the petition for review. The testimony introduced by the respondent tended to 'show that she had a good and meritorious defense to the action and that the petition of plaintiff upon which the judgment complained of was obtained, was not true in a matter material to the issue presented by the petition. However, while we are of the opinion that the conclusion of the court, as reached in this proceeding, was proper, yet it is apparent that the order and judgment of the court in which the petition for review was sustained does not fully conform to the requirements of the statute. The order so far as it goes is correct, wherein it is recited that the “petition is taken up and being seen and heard and fully understood by the court the same is sustained,” but this should be followed by an order that the judgment be set aside on condition that the defendant answer or demur to the petition o‘f plaintiff upon which the judgment was rendered within a reasonable time to be ordered by the court. Therefore, it follows that the judgment of the court should be reversed and the cause remanded with directions, to the court to modify the judgment under review so as to conform to the statute as above indicated, and designate by order a reasonable time in which the answer may be filed, and it is so ordered.

All concur.