text:
    E. C. VANDAGRIFT, Receiver, Appellant, v. MASONIC HOME OF MISSOURI.
    Division One,
    March 29, 1912.
    1. BANKS AND BANKING: Depositors: Debtor and Creditor. The relation of debtor and creditor subsists between a bank and its depositor. This rule is reciprocal, so that when a bank permits its customer to overdraw, he thereby becomes the debtor and the bank the creditor.
    2. -: -: Overdrafts: Liability of Payee. The treasurer of a corporation had an account with a bank of which he was the president; that bank received more of the corporation’s money from the original depository than was returned, and it permitted the treasurer to divert this money to his personal account and then to overdraw that account by checks to creditors in order to replace funds of the corporation misappropriated hy him. The corporation, meanwhile, had no knowledge of such misappropriation and the treasurer’s hooks, 'frequently examined, were found to he correct. Held,, in an action hy the receiver for the hank as for money had and received, that the corporation is not liable for the unpaid balance of such overdrafts.
    3. REFERENCE: Compulsory: Appeal: Review of Findings. If a case, though referred by consent, is one wherein a compulsory reference might have been ordered, the Supreme Court upon appeal will review the findings of the referee.
    Appeal from St. Louis City Circuit Court. — Hon, G. C. Hitchcock, Judge.
    Aeeirmed.

      John A. Eaton, E. H. McVey and Franklin Miller for appellant.
    (1) An action for money .had and received, lies when one person has received money "belonging to another, which, in justice and right, should be returned. Eicbardson v. Drug Co., 92 Mo. App. 515; Gaines v. Miller, 111 U. S. 395. (2) On December'22, 1905, Tygard was a defaulter in his trust as treasurer of the Masonic Home, in the sum of $19,329.14. He was insolvent. He took $17,522.88 out of the Bates National Bank and used it in paying back the Masonic Home and in paying the obligations of the Masonic Home. (3) John E. Parson was the secretary of the Masonic Home, and one of its board of directors. He was the active financial officer of the home. He had knowledge of Tygard’s misuse of the home funds. He discovered the shortage while engaged in the business for which he was employed, i. e., the cashing of warrants and the making of deposits in the State National Bank. His knowledge therefore became the knowledge of the Masonic Home. Bank v. Schaumberg, 38 Mo. 244; "Williams v. Dittenhorfer, 188 Mo. 144; Carroll v. Railroad, 14 Mo. App. 498. (4) Tygard ’s embezzlements were made possible only by reason of tbe neglected duty of tbe Masonic Home in that tbe Home failed to exercise even tbe slightest supervision over him as treasurer and failed to use even ordinary diligence in connection with its funds. (5) Tbe moneys of tbe Masonic Home were so bandied by Tygard in tbe accounts in tbe Bates National Bank as to make knowledge from an investigation of tbe account as to tbe condition and amount of moneys belonging to tbe Masonic Home impossible, and as no actual knowledge concerning tbe peculations and embezzlements of Tygard can be imputed to tbe Bates National Bank by reason of tbe unlawful acts of Tygard, tbe Bates National Bank bad no constructive or actual knowledge of wbat was transpiring with reference to tbe use of its moneys for tbe benefit of tbe Masonic Home. (6) Tbe Bates National Bank is presumed to know wbat its president knows only when be is acting within tbe scope of bis agency, and bis fraudulent acts to tbe detriment of tbe bank cannot charge tbe bank with notice. Tbe bank is not imputed with knowledge as to tbe fraudulent intent of Tygard in withdrawing tbe funds of tbe Masonic Home from tbe fact that Tygard was merely tbe president of tbe Bates National Bank. Bank v. Slattery, 166 Mo. 620; Bank v. Proman, 129 Mo. 430; Bank v. Thayer, 184 Mo. 93; Bank v. Lovitt, 114 Mo. 525; Johnson v. Shortridge, 93 Mo. 227; Traber v. Plicks, 131 Mo. 186; Smith v. Boyd, 162 Mo. 157; Knobeloch v. Bank, 27 S. E. 962 ; 4 Thompson on Corporations, secs. 5205-6. (7) Tbe moneys of tbe Bates National Bank, having been appropriated and used for tbe benefit of tbe Masonic Home, by its treasurer, entitles tbe Bates National Bank to be reimbursed in respect to all of the moneys taken from it by tbe defaulting treasurer and used in payment of tbe obligations of tbe Masonic Home. Bank v. Lumber Co., 54 Mo. App. 327; Bank v. Lumber Co., 60 Mo. App. 255; Watson v. Bigelow, 47 Mo. 413; Mayor v. Ord, 57 Mo. App. 644; Boblmann v. Rossi, 73 Mo. App. 315; Fahy v. Grocer Co., 57 Mo. App. 77; Huttig Co. v. Gitchell, 69 Mo. App. 121; Mining Co. v. Bank, 96 U. S. 640; Society v. Mitchell, 26 Mo. App. 217; Assn. v. Bank, 126 Mo. 82; Hennessy v. Bank, 129 Fed. 557; Bank v. Morgan, 96 U. S. Sup. Ct. 122; Curtin v. Mining Co., 74 Pac. 851; Clement v. Clothing Co., 68 N. W. 224; Kerwin v. Match Co., 79 Pac. 928; Parsons v. Investment Co., 64 Mo. App. ' 32; Trust Co. v. Loan Co., 61 N. E. 688; Capital Co. v. March, 61 Pac. 876; Phillips v. Lumber Co., 62 Pac. 749; Bank v. Hughlett, 84 Mo. App. 268. (8) “If the treasurer of a corporation is a defaulter and his defalcation is as yet unknown and unsuspected, and he steals money from a third person and places it with the funds of a corporation, in order to conceal and make good his defalcation, and the corporation uses the money as its own, no other officer knowing any of the. facts, the corporation does not thereby acquire a good title to the money as against the true owner. But the latter may maintain an action against the corporation to recover back the same.” Newell v. Hadley, 206 Mass. 335, 29 L. R. A. (N. S.) 908; Mills v. Mills, 147 Mass. 268; Foote v. Cotting, 195 Mass. 55; Brookhouse v. Pub. Co., 73 N. H. 68; Holden v. Bank, 72 N. Y. 286; Gunster v. IT. & P. Co., 181 Pa. 327; Bank v. Dunbar, 118 111. 625; Ditty v. Bank, 75 Fed. 769; Bank v. Thompson, 118 Fed. Rep. 802; Electric Co. v. Electric Co., 65 Fed. Rep. 344; Bank v. Munger, 95 Fed. 92; Aldrich v. Bank, 176 U. S. 618; Bank v. Kellog, 56 N. W. (S. D.) 1071; Bank v. Milling Co., 1 S. D. 388; Bannantine v. Maclver, 1 King’s Bench, 103; 3 Am. & Eng. Anno. Cases 1143. (9) When Tygard repaid the money he had stolen from the defendant, by paying the Masonic Home debts with the $17,-522.88 stolen from, the plaintiff, Tygard, and Tygard alone, represented the defendant in> receiving the $17,-522.88. The Masonic Home must be deemed to have known what he knew, and the Home cannot accept the benefit of his act without accepting the consequences of his knowledge. The defendant cannot obtain greater rights from his act than if it did the thing itself, knowing what he knew. Newell v. Hadley, 206 Mass. 335, 92 N. Y. Bep. 507; Mills v. Mills, 147 Mass. 269; Aldrich v. Bank, 176 U. S. 637. (10) The annual examination of Tygard’s accounts as treasurer by the so-called experts was a farce. No effort was made to examine his bank account and check it up with the books. The trial court erred therefore in sustaining the findings of the referee.

      Jamison dt> Thomas and W. M. Williams for respondent.
    (1) The finding of facts by the referee stands as a special verdict. Coming here, as it does, with the approval of the trial court, the only open question as to the facts is, whether there is any evidence to support these findings. Perry Co. v. Bailroad, 73 Mo. 389; Berthold v. O’Hara, 121 Mo. 88; Tufts v. Latshaw, 172 Mo. 359. (2) There is substantial evidence to support each and every fact found by the referee and set out in his report. There was practically no dispute about the facts, and they are succinctly and clearly stated in the report. (3) “To maintain assumpsit for money had and received, plaintiffs must show that defendant has actually received his money, or prove such facts as to raise a fair presumption that he has received it.” Hutchison v. Phillips, 11 Ark. 270; Larry v. Hart, 12 Ga. 422; Madison v. Wallace, 30 Ky. 98. , The evidence does not tend to show that any money belonging to the Bates National Bank was ever actually received by the defendant corporation. The treasurer, Tygard, had sufficient money belonging to the defendant to pay every warrant drawn on him. The part which he kept in the State National Bank was undoubtedly so applied and enough of the money belonging to the home to meet all other warrants was deposited by him in his own bank. The presumption must certainly be indulged, in the absence of evidence to the contrary, that the money remitted to meet these warrants was from the funds of the home. The finding of the referee “that it has not been shown that the defendant received any money belonging to the Bates National Bank, nor has proof been submitted to raise a fair presumption that defendant received it,” is a proper conclusion upon the evidence. (4) Even if it had been shown that Tygard had embezzled some of the money of the Bates National Bank, and, without the knowledge of the defendant’s officers and directors, had used it to pay warrants drawn upon him as defendant’s treasurer, for the payment of which sufficient money had been previously placed in his hands by the defendant, still plaintiff could not recover in this action. “A payee is not bound to inquire into the authority of a person from whom he receives money in payment of a debt, for a different doctrine would be productive of great mischief.” Rankin v. Bank, 188 U. S. 557; Sanborn v. Bank, 115 Mo. App. 50; Hardware Co. v. Mayer, 110 Mo. App. 14; Hatch v. Bank, 147 N. Y. 184; Stephens v. Board, 79 Mo. App. 183; Smith v. Bank, 107 Iowa, 620. (5) The money of the home was used for the benefit of Tygard’s bank, and not the money of the bank for the use of the home. Many of the checks drawn against the account of Tygard, treasurer of the home, in the State National Bank were in favor of J. C. Clark, cashier of the Bates National Bank, and for money transferred to the last named bank. These transactions appeared upon the books of the Bates National Bank. Its officers and directors must be held to have knowledge of what its books show. At least two of the directors were shown to have had actual knowledge thereof, while defendant’s directors had no notice whatever of the condition of these accounts.
   BOND, C.

This, suit is by the receiver of the insolvent Bates National Bank, located at Butler, Bates county, Missouri, against the Masonic Home of Missouri, a corporatioon created for charitable purposes, in three counts, set forth in the petition. The first-two were based upon notes purporting to be signed “Masonic Home of Missouri, by F. J. Tygard, Treasurer,” dated, respectively, December 25, 1905, and March 12, 1906, and for the sums of $3000 and $1500. The right to recover on these two counts of the petition was not claimed on the oral argument in this court. The only count of the petition left is the third count, which is in assumpsit for $17,522.88. The answer to this count of the petition is a general denial. The case was referred by consent, and the taking of testimony before the referee was concluded, and a report made by him on the 26th of September, 1906.

The facts found by the referee are, in substance, that the defendant was organized as a corporation on the 12th of October, 1886, for the purpose, as shown by it articles, “to establish and maintain a home for indigent Masons of Missouri, and for resident needy widows and orphans of deceased Masons . . . and to hold such property and conduct such business as may be necessary for the successful maintenance of said home.” That following its organization of the first board of directors, F. J. Tygard was elected treasurer and was annually re-elected to that office for a period of twenty years, or until September, 1906; that during this time said Tygard was president of the plaintiff bank and its predecessor, and in each of said banks he kept an account headed, “F. J. Tygard, Treasurer, Masonic Home of Missouri.”

His duties as treasurer are defined in the by-laws of the defendant, as follows: “Sec. 3. The treasurer shall be the custodian of all moneys and securities belonging to the home, and disburse the same in payment of expenses by the direction of the board of directors, and shall not make any payment except On proper vouchers drawn by order of the hoard and signed by the president and secretary; submit to the board, or any member thereof, his books, papers and accounts whenever requested so to do, and to report annually to the president, and oftener if required, the financial transactions of the hoard of the home, and transmit to his successor in office his official effects.”

Under the by-laws of the defendant, its secretary (John R. Parson and S. O. Bunn) was required to record the proceedings of the board of directors when approved, take care of the seal and perform other duties required by the hoard, and “to receive all moneys belonging to this corporation; he shall give receipts therefor and shall keep an accurate account thereof. Funds which may come into the hands of the secretary from any source shall be by him paid over to the treasurer . . . and he shall take the treasurer’s receipt therefor.” By a later by-law the treasurer was charged with the duty of paying the expenses of the defendant under direction of its board of directors, and to submit to the board his books, papers and accounts when requested, and to make annual reports to the president. The secretary was also further -directed to deposit sums received by him “to the credit of the treasurer in such bank as the treasurer may designate.” The treasurer was further forbidden to pay out money “except upon drafts of the president and secretary issued in pursuance of orders from the board.”

The report of the referee further sets out that the •grounds and buildings of defendant were purchased by contributions and donations from various Masonic orders; that its expense funds were acquired by assessments laid upon their members by local Masonic lodges throughout the State of fifty cents per head on each member; that an appropriation out of said funds was made by the various Masonic lodges and paid over to the secretary of the home, who, in turn, paid the same to F. J. Tygard, treasurer of the home, or placed it to his credit in some bank; that for some years before 1906 > the secretary, under the direction of said Tygard, deposited such collections in the State National Bank of St. Louis, to-wit, “To the credit of F. J. Tygard, Treasurer of the Masonic Home;” that the treasurer used such deposits in the payment of warrants made out in proper form for the expenses of the home, or from time to time withdrew and transferred them to the Bates National Bank of Butler, Missouri, of which he was president; that he kept three separate accounts in said last named bank — one in his individual name, one as treasurer of the Masonic Home, and one as Treasurer of the Grand Commandery of Knights Templar, and used the funds in each account indiscriminately in crediting money held by him as treasurer, of the home, for paying out money for the home, as stated in plaintiff’s second amended petition. (These underlined words were the only change made in the report of the referee when it was confirmed by the court). And for credits and payments in his own account and as treasurer of the grand commandery, and in issuing checks to Tygard and Clark; and in transferring credits to a bank at Bich Hill, Missouri.

Tygard and Clark was a firm composed of Tygard, the president, and Clark, the cashier, of the Bates National Bank, engaged in making speculative ventures and using for that purpose sometimes money belonging to the home. The Rich Hill Bank was a bank at Rich Hill, Missouri, in which Tygard was interested and of which he was vice-president; that Tygard made full and regular monthly and annual reports of the condition of his accounts as treasurer of the home to the president of its board of directors, which were fully distributed; that his books and accounts were annually, and at times oftener, forwarded to the office of the Masonic Home and examined by direction of its board of directors and compared with the books kept by the secretary; and that annually an expert accountant was employed to examine and compare reports of these two officers; that warrants for the expenses of the Masonic Home were, by the direction of the treasurer, made payable at the State National Bank of St. Louis, and, after such payments, he took credit for the same as treasurer; that in three instances in which this did not occur, the payments were made under the direction of the board and shown by receipts instead of by warrants; that the evidence adduced on the trial disclosed that when the notes referred to in the first and second counts of plaintiff’s petition were executed, the treasurer, according to the showing of his books, had then on hand larger sums than were expressed in the face of said notes; and that early in September, 1906, before the plaintiff went into the hands of a receiver, the treasurer had on hand, according to his books, to the credit of the home, $1290.36; and that he paid over to his successor as treasurer this amount; that during the entire term of his incumbency as treasurer, he never attempted to create any obligation against the home or in its name other than the two promissory notes described in the petition.

“The members of the board of directors of the home knew nothing of the existence of the notes sued on until the institution of this suit; ’ ’ and that there was no authority given Tygard to create such obligations; that the evidence showed numerous instances where Tygard would use the deposits to his credit as treasurer in his own bank (the Bates National Bank) to start an account in that bank in favor of himself or others, and, subsequently, to transfer amounts to the credit of the home; that" “from 1893 to .1896 he checked out of the deposits to his credit in the State National Bank of St. Louis, as treasurer of the home, more than $120,000, $80,000 of the sum being made payable to J. C. Clark, cashier of the Bates National Bank, and remainder to the cashier of the Bank at Rich Hill, Missouri ; ’ ’ that about one-fifth of this amount, or $24,000, when received by the Bates National Bank was properly credited to Tygard as treasurer of the Masonic Home on its books; that the remaining four-fifths, about $96,000 when so received were placed by the Bates National Bank, at the direction of Tygard, to his personal account, or to the account of Bates National Bank, or to Tygard and Clark, or to the Rich ■Hill Bank.

The report then adds: ‘ ‘ There is no evidence that the directors of the home had any knowledge of this confusion of accounts and shifting of credits practiced by Tygard, as they appear only in the books and in the accounts of the Bates National Bank.”

The report then sets out that Tygard had general supervision of the management of the Bates National Bank; that J. C. Clark, it vice-president and cashier for twenty years, and S. P. "Warnock had charge of the details of its business; that for three years before its failure the board of directors of the bank consisted of Tygard, Clark, Newberry, Edwards and "Warnock, which held meetings every month or two months at which the president (Tygard) would submit statements of the condition of the bank; that “these reports showed his personal account and an account as treasurer of the Masonic' Home and an account as treasurer of the Grand Commandery, and that he gave checks on the bank and made deposits or transfers of credits or debits in connection with these various accounts;” that the bank had a discount committee who examined paper offered for that purpose; that the two notes mentioned in the first and second counts of plaintiff’s petition were discounted; that Tygard said to the cashier at the time “the home was needing money to pay for improvements and had overdrawn its account;” that Tygard admitted to him after the failure of the bank that he had no authority to make these notes; that interest appeared to have been paid upon them; that the books of the bank did not show from what source it was derived.

The referee then sets out a transcript of the balances shown by the treasurer’s books to have been in his hands to the credit of the Masonic Home at the close of each year from July 31, 1904 to September 1, 1906. It shows that at the latter date he held to the credit of the defendant $1290.36, as above stated. The referee then makes the following itemized statement of the ¿mount which plaintiff claims it is entitled to recover on the third count of its petition:

Warrants paid out of account of Tygard, treasurer of Home, in Bates National Bank ......................$ 3,524.79
Warrants paid out of account of Tygard ................ 4,507.70
Remitted out of personal account of Tygard in Bates National Bank to credit of Tygard, treasurer, in State National Bank and paid out for Home .............. 4,500.00
Remitted out of account Tygard, treasurer,, in Bates National Bank and credited to account Tygard, treasurer, State National Bank, and paid out for Home---- 10,500.00
Received from Masonic Home and credited to Tygard in Bates National Bank............$ 2,850.00
Received from Masonic Home and credited to Tygard, treasurer, in Bates National Bank. .$ 3,059.61 $ 5,409.61
Total $17,522.88

As to these items of account, the referee states that the warrants for the first item show that they were paid by the State National Bank; that presumptively the warrants for the second item were paid by the State National Bank; that the remaining two items claimed by plaintiff were between the period of January 11, 1906, and August 7, 1906, a little over seven months; that during this time the treasurer had in his hands a much larger amount to the credit of the home than the amount of both of these items; that the defendant had held in his hands since the first of September, 1905, as shown by his own books, $8347.40, and from that timé to September 1,1906, he had received in cash from the secretary $42,574; that from other sources (redemption of bonds and interest on loans) he had received during the same period $10,912.59, or total receipts the year ending September 1, 1906, $61,833.99; that his total expenditures as treasurer of the home during said year were $60,543.63, leaving in his hands the balance aforesaid, which was paid over as aforesaid.

This report of the referee was accompanied by his conclusions of law, upon which, as applied to the facts found by him, he recommended judgment in favor of the defendant.

Exceptions were' filed to his report by plaintiff, which were overruled by the court except as to the amendment by interlineation shown in the italicized sentence above. Thereupon, the court affirmed his report, and rendered judgment in favor of the defendant, from which plaintiff has duly perfected its appeal to this court.

OPINION.

I. The plaintiff (appellant) claims that Tygard embezzled money of the Bates National Bank, of which he was president, to pay certain creditors of the Masonic Home, of which he was treasurer, in a sum sufficient to replace his misappropriation of funds which came into his hands as such treasurer. Plaintiff (appellant) further claims that the Masonic Home knew of these facts and thereby became liable in the present action “as for money had and received.”

Before discussing the law applicable to this assumed state of fqqts, it is necessary to ascertain from the record whether the evidence proves that it really existed.

There is not a shred of evidence in this record that the Masonic Home had any knowledge that any of the moneys placed in the custody of its treasurer were embezzled or misappropriated. His books as such trustee were annually and also monthly examined and compared with those kept by the home by expert accountants, and found to be correct, both as to his receipts and disbursements, and the balance due at end of his office was paid over.

It may be conceded that Tygard did use these trust funds in his own ventures, but there is no evidence that the Masonic Home was aware of that fact. There is evidence that Parsons, defendant’s secretary, knew the treasurer did not at all times have enough of the home’s money on deposit in the State National Bank at St. Louis to meet checks on said bank for current expenses and obligations of the home; but there is no evidence that the secretary knew that the remaining funds of the home were not on deposit in the Bates National Bank, in the county where the treasurer lived.

The by-laws of the Masonic Home did not require him to maintain his deposits as treasurer in any one of the four banks in St. Louis which he successively used to receive collections in the first instance, and where the secretary was required to deposit them to his account as treasurer. He might, at any time after they were put to his credit, transfer any part of them to another depositary, and he did receive a large part of these funds and place them to his account as treasurer in his home bank in Bates county. Hence, the fact that, on occasion, he did not have in the St. Louis bank enough of the home’s money to pay a check thereon in the form of a warrant (as prescribed in the by-'laws) afforded no evidence that the full amount of the money shown by his books to be then in his hands was not comprised in the aggregate sums then to his account as treasurer in the Bates National Bank and in the St. Louis banks.

The referee was well warranted by the evidence in so finding. It is no doubt true that if the defendant had distrusted the showing of its treasurer’s books and had undertaken to ferret out all of the depositaries and receptacles wherein he kept its money, it would have discovered that he was engaged in speculations, and that the portions of its funds which he had transmitted to his account as treasurer in the Bates National Bank were used by him for the benefit of that bank, and in joint enterprises with the cashier of that bank, and for other purposes; but there was nothing in the transactions between him and the defendant up to that time which imposed that duty upon it as a matter of law.

A careful analysis of the testimony of Clark, the cashier of the Bates National Bank (who was jointly acting with Tygard in some of the uses of the money to his credit as treasurer of defendant) discloses that the funds so used were fully replaced. As to this he testified: “Q. And did Tygard and Clark pay back all of the money you say they borrowed in that way of the Masonic Home1? A. Yes, sir, and a good deal more.” This witness also states that for the overdrafts of Tygard or any other depositor, the bank extended credit to them and expected them to repay such indebtedness. This consists with the rule of law that the relation of debtor and creditor subsists between a bank and its depositors. [Utley v. Hill, 155 Mo. l. c. 259.] This rule is necessarily reciprocal, so that when a bank permits its customer to overdraw, he thereby becomes the debtor and the bank the creditor, or a reversal of positions takes place without any change in the nature of their legal relations.

The act of Tygard, with the consent of the Bates National Bank, whereby he withdrew the money of other persons and deposited it in his own name, if it did not charge the Bates National Bank with a trust, certainly could not charge the Masonic Home, or anyone to whom Tygard gave checks on the accounts thus established, with any obligation whatever to the bank. For if this were so, then no person could safely receive payment of a check without incurring a resulting liability to the bank which honored it, if the bank could show that the drawer of the check had created an account in his favor by depositing in his own name money which he held for another. Such a theory is unsound in law and impractical in business dealings.

So in the case at bar, when the Bates National Bank accepted deposits by Tygard as treasurer and afterwards consented to a redeposit of money drawn from that account by him in his own name, it thereby precluded itself from calling on any person to whom he gave a cheek on his personal account thus established, to reimburse the sums paid by the bank on such checks, whether they exceeded the account of the drawer or not.

The evidence in this case proves that the Bates National Bank received out of the money of defendant deposited originally in the State Bank of St. Louis a larger sum than was returned; that it permitted Tygard to divert this money in a great degree to his own uses by crediting it to his personal account. The fact that it afterwards permitted him to overdraw his personal account furnishes no legal ground for a recovery from this defendant or any other payee of the balance due said bank on the overdrafts made by Tygard. This seems to be the only manner in which Tygard conducted his business in the Bates National Bank so as to become its debtor. He did not rob the . till nor purloin the money in its vaults. What he actually did, as far as this record shows, was the creation of accounts, personal and otherwise, upon which he made overdrafts which were not repaid. This undoubtedly left him a debtor for the amounts thus loaned him by the bank, but it did not make the persons to whom he paid the money either debtors to, or trustees for, the bank. As to such third parties, the maxim applies, Res inter alios acta alteri nocere non dehet. [Broom’s Legal Maxims (8 Ed.), p. 954.]

Our conclusion is that the undisputed facts in this record, which we have re-examined (since the case is one wherein a compulsory reference might be ordered, Williams v. Railroad, 153 Mo. l. c. 495) clearly sustain the deductions of the referee, that the Masonic Home stood in no relationship either of knowledge or conduct which rendered it liable to account for the money paid out by its treasurer on its behalf in the discharge of his duty to account for funds entrusted to him.

This disposes of this appeal and renders it unnecessary to discuss the applicability of the rule enounced by a divided court in Newell v. Hadley, 206 Mass. 335, as to the measure of responsibility incurred by the principal where his agent has stolen the money of another to repay a theft from his principal, and suit is brought by the third party to recover from the principal.

The proposition that the owner of personal property which is subject to identification, does not lose his title thereto by the act of one'who steals it and sells it to an innocent purchaser, is fundamental in the law. The doctrine, however, on grounds of public policy and business necessity cannot be applied to unidentifiable money which has been received in good faith and for value by a payee of the person who obtained it by theft. But the case in hand does not call for the application either of the rule or its modification, for the facts necessary to support the legal theory on which appellant asks the reversal of this case are essentially lacking in the record before us.

The judgment of the trial court was manifestly for the right party and is affirmed.

Broivn, G., concurs.

PER CURIAM. — The foregoing opinion of Bond, C., is adopted as the opinion of the court.

All the judges concur, except Graves, P. J., not sitting.


source: Caselaw Access Project

author: BOND, C.

license: Public Domain

text:
    HIRAM HAYES et al. v. LOARN HAYES et al., Appellants.
    Division One,
    March 29, 1912,
    1. WILL CONTEST: Action at Law: Practice: Undue Influence. A suit to set aside a will for undue influence is an action at law, and where there was any material evidence tending to prove plaintiffs’ allegation of undue influence, the case was one for the jury.
    2. -: Undue Influence. Undue influence méans the substitution in a will, when executed, of the will and purpose of some person other than the testator. The allegation of undue influence as the sole ground of attach upon a will implies intellectual competency on the part of the testator except for the dominance over his mind and intentions in the disposal of his estate of a stronger will or different purposes from what he would have expressed if left to his own guidance.

      3. -: -: Partiality and Prejudice of Testator. Proof of a father’s partiality and prejudice as regards his children— such partiality and such prejudice, that is, as are not engendered by craft or fraud and which do not subdue his mind and free agency — is not sufficient to set aside his will made under the influence of those emotions. Nor would it alter the case that such emotions were unjustly harbored.
    4. -: -: Right of Alienation. The absolute ownership of property implies the right of arbitrary disposition of it according to the loves, hates or caprices of the grantor. The only limitation of the power of the owner to alienate his property (aside from coercion, fraud, or lack of mentality) exists when the instrument of conveyance was made at a time when the volition of the grantor was so far destroyed that the instrument expressed, not his own intentions and wishes, but the different designs and objects of those who controlled his actions.
    5. PRECATORY TRUST: Terms. In order to imply a trust from the use of precatory words, the terms employed for that purpose must be inserted in the will or other instrument of settlement, and used in. an imperative sense as to a certain subject and a certain object or person.
    6. EVIDENCE: Remarks of Testator: Undue Influence. The testator’s remarks, made at various times not contemporaneous with the making of the will, that the reason he did not give anything to his other children was to keep down dissensions in his family, were evidentiary only of the testator’s state of mind, -not of the truth of the things stated; and such remarks cannot be taken as proof of undue influence.
    7. WILL CONTEST: Undue Influence: Material Evidence Reviewed. Held, that there was in this case no evidence of undue influence exerted upon the mind of a testator when be made his will.
    Appeal from Barry Circuit Court. — Hon. F. G. Johnson, Judge.
    Reversed.

      W. P. Sullivan, G. Purd Hays and T. D. Steele, for appellants; James T. Neville of counsel.
    (1) An attack upon a will on tlie ground that it was procured by undue influence necessarily assumes the existence of a will otherwise valid and regularly executed. Upon this issue therefore, the burden of proof is on the contestants. Jones v. Roberts, 37 Mo. App. 163; Carl v. Gabel, 120 Mo. 283; Morton v. Heidorn, 135 Mo. 608; Doherty v. Gilmore, 136 Mo. 414; Campbelle v. Carlisle, 162 Mo. 634; Schierbaum v. Schemme, 157 Mo. 1; King v. Gibson, 191 Mo. 307. (2) Mere undue influence is not sufficient; to invalidate the will such influence must be so exercised as to result in the will made, and will not do so then, if such influence was of a wife or child and was exercised in a fair and reasonable manner, without fraud or deception. Crowson v. Crowson, 172 Mo. 691; McFadin v. Catron, 138 Mo. 197; Jackson v. Hardin, 83 Mo. 175; Maddox v. Maddox, 114 Mo. 35; Jackson v. Hardin, 83 Mo. 175: (3) When proponents have made out their prima facie case, it then devolves on contestants to prove undue influence by substantial testimony, failing in which, the court should direct a verdict for defendants. Sehr v. Lindemann, 153 Mo. 276; Schierbaum v. Schemme, 157 Mo. 16. It was the duty of the trial court to give a peremptory instruction to the jury to find, in favor of the will where a prima facie case was made by the proponents and there was no substantial evidence to sustain the contest. Jackson v. Hardin, 83 Mo. 175; Maddox v. Maddox, 114 Mo. 35; McFadin v. Catron, 138 Mo. 197; Riley v. Sherwood, 144 Mo. 354'; Sehr v. Lindemann, 153 Mo. 276; Winn v. Grier, 217 Mo. 420; Fulton v. Freeland, 219 Mo. 494; Gibony V. Foster, 230 Mo. 106; Mackall v. Mackall, 135 U. S. 167; Martin v. Bowdern, 158 Mo. 379; Catholic University v. O’Brien, 181 Mo. 93; Schierbaum v. Schemme, 157 Mo. 22. (4) Statements made by the testator, both before and after the execution of the will are admissible as evidence of the testator’s mental condition and the state of his affections, but such statements are not admissible as proof of undue influence, nor of the truth of the facts narrated. Crowson v. Crowson, 172 Mo. 691; Techenbrock v. McLaughlin, 209 Mo. 533; Seibert v. Hatcher, 205 Mo. 83.

      J. J. Gideon, G. A. Watson, J. S. Davis and

      James George for respondents.
    The court did not err in refusing the mandatory instructions at the close of the plaintiff’s evidence and at the close of all the evidence. The question of undue influence was the only question submitted to the jury, the question of want of testamentary capacity having been eliminated at the commencement of the trial. There was abundant evidence to justify the court in submitting this question to the jury. The defendants did not stand upon their demurrer but joined the plaintiffs in submitting this question in their instructions. We understand the rule to be that the trial court cannot be convicted of error when, after demurrer to the evidence has been overruled, the defendant requests and obtains instructions submitting the issues to a jury which finds against him. This is certainly so where there is evidence to sustain the verdict. Crum v. Crum, 231 Mo. 636.
   BOND, C.

This suit is to set aside, for undue influence, the will of W. R. Hayes, who died March 22, 1907, leaving a second wife, Adaline Hayes, seven children and one grandchild, the descendant of his eighth ■ child; all of whom are parties plaintiff and defendant to this suit. The will in dispute was formally executed August 4, 1898, and purported to devise to the said widow and one child (Loarn Hayes) all the real and personal estate of the testator. The remaining six children and the grandchild are expressly named in the will and excluded from any share in' the property therein devised. There was a mistrial in Christian county, and a change of venue to Barry county, where, after a second mistrial, the cause was again tried at the September term, 190.8, of the circuit court.

At the hearing,- the evidence, in substance, was, to-wit: The first wife of William R. Hayes died August 4,1876, after having given birth to eight children, the fruit of her marriage. A little more than a year thereafter he married Adaline Hayes, his widow and one of the defendants. No children were born of this union. Four of the children of the first marriage had married at the time of their father’s second marriage: Hiram, Martha Anderson, Eliza Downing and Mrs. Jones. The other children, not then of age, lived with their father, and included Loarn, two years of age; Minerva, fourteen; John, sixteen, and Prior eighteen. As they became respectively of age, they moved away from their father’s home, except Loarn who remained there and at another house on the farm during his father’s life.

Hiram Hayes, then fifty-five years of age, testified, that no misunderstanding occurred between himself and his father. “My relations with him remained friendly to the time of his death.” On cross-examination, he stated, as follows: “We had a little difficulty shortly after he married the second time. I don’t- remember how many years that I didn’t visit him, might have been as many as ten or twelve. We spoke to each other during that time when we passed, but had no conversation, I never tried to talk to him. He invited me to visit them and I went. It might have been only three or four years afterward, I don’t know. I remember this trouble was about buying that tombstone; he was asked to put up one, and didn’t, and a part of us went ahead and put it up. This was after father had married a second time. Sister Martha had asked him to put it up, I believe. I never asked him. Mrs. Anderson, Mrs. Downing and myself bought this tombstone. We put it up without saying to father what we were going to do. I knew father’s disposition; knew his feelings were easily hurt. I didn’t know whether it would hurt his feelings or not. I suppose it would. ... I expected it would make him mad and hurt his feelings at the time we did it. That is the trouble that came up between me and father first. It was not but two or three years till father came to see me and invited me to visit him, and I went and visited him off and on from that on. I don’t know how often. I plowed corn on his place once since that and the summer before he died him and stepmother came down and spent a day with me, one Sunday, and him and my cousin came down one Sunday. I never discussed the tombstone proposition with him. . . . When I married he gave me a team, chain harness, a year’s provisions and a cow. I didn’t have as much as father —he had land and I didn’t. When I went back to visit him my stepmother was there. I never had any trouble with her. She always treated me nicely. She never told me not to come.”

He was at his father’s house when he died, and had a talk with Loarn, who told him that “Pap made his will and willed it all to me” (Loarn). “Pap said for me to divide with you and John. ’ ’ That he (Loarn) stated he did not know what was in the will until told by his father, and that he (Loarn) went to Billings, where the will was deposited, and examined it “to see whether Roswell Jones’s (the grandchild’s) name was on it.” That he further stated to witness: “Hiram, Pap said for me to divide with you and John.”

Eliza 'Downing (nee Hayes) testified, that she and her husband moved away from her father’s house when he married the second time; that she and a married sister prepared the dinner.for him at his house on the wedding day, and received their stepmother; that she did not visit her father thereafter for twenty-five years, hut did go to see him when he had ‘ ‘ gangrene in his foot.” She stated also, that she never heard either her stepmother or her brother Loarn say anything’ to her father about his will, but she thought “he was influenced or he never would have willed his children out.”

Martha Anderson testified, that the first estrangement between her father and his elder children grew out of the fact that the stepmother stopped the younger children (who remained at home) from coming to sue her and the other married ones (who had moved away); that she thought he was influenced in the matter of making his will but she did not know how; that she did not visit her father’s house after December 24, 1877, while he lived; that she should have done so if she had thought she would be welcome; “that about four years ago Loarn told her that father had made a will and had willed everything to him, and remarked, *that he done just as he told him there with everything.’ ”

Minerva Carlin stated she stayed at her father’s house after his second marriage until she was sixteen years of age, when she was taken away by one of her brothers, after she had been, struck with a rolling pin by her stepmother for not getting breakfast early enough on a certain'Sunday morning; that she tried to defend herself; that her father came in the room, and each of them told her own side; that her father told her to “hush;” that she went back in the kitchen “and finished up breakfast,” and left about ten days thereafter and made her home with her sister Martha until she became twenty-five years' of age, when she married; that her father never asked her to return; that her stepmother never spoke to her until after her marriage; that she saw her father at Loam’s house in 1902 or 1903. He then asked her to visit him for two or three days; that Loarn wrote her about the affliction of her father; that she then wrote her father offering to come and see him, and received a reply from Loarn telling her not to come, that “he (her father) said he would like to see her, but he could not stand the abuse he would have to take if I would come,” therefore Loarn advised her not to come.

On cross-examination she testified, to-wit: “Q. Did you ever hear your stepmother suggest to your father he should dispose of his property in any particular way? A. Not to him, but she told me she didn’t intend to allow ‘your Pap to give you children anything.’ Q. Tour Pap did just about as he pleased, didn’t he? A. He did when he was by himself; when he was with her, I don’t believe he did. Q. As a matter of fact you don’t know of any influence exercised by either your stepmother or Loarn in making this? A. I know just what she said to me, ‘I don’t intend to allow your Pap to give you children a penny,’ and the will says we didn’t get it, that is all I know about it.”

Prior L. Hayes worked on the farm until twenty ■ one years of age, and left after a fight with his father, whom he knocked down in the course of the difficulty. He took his sister Minerva away after the fight between her and her stepmother. He did not revisit his father for twenty-two years, but saw him three times during the last two years'of his life.

John Hayes testified he left the home of his father when twenty years of age and about five years after the second marriage; that he and the younger children while at their father’s house were forbidden to visit their married sisters, whose husbands were disliked by their father. He left after an altercation with his father, but visited him regularly and often up to his death. He then talked with Loarn who told him that the property was all willed to him (Loarn), and that their father had requested him to divide. “Q. Just state what he said? A. He said that he was to divide with me and Hiram. Q. That is the substance of it? A. Yes, sir. Q. You could not give his exact language? A. No, sir, we had quite a talk about it. I expect we talked half an hour about it.” That he had heard of a previous will made in 1883, whereunder the estate of his father was equally divided between him and Loarn, except the widow’s dower, and a bequest of five hundred dollars to two grandchildren.

Samuel Angus testified, that the testator told him that he had given everything to Loarn; “that he allowed to help John some, but did not for he desired to have ‘a little peace,’ and ‘it kept up so much hell about it, that is the reason he said he fixed it that way.’ ” This talk was six or seven years before the-trial.

Frank Smart stated, that the following conversation was had between him and the testator: “That was in 1893, we shocked across the west end of that square of wheat and got down to the southwest corner and stopped there, he said let’s wait until the man comes with the water. It was a hot evening. While we was standing there he looked over the field and looked around, he said: ‘It won’t be long I will be here in the heat working, it won’t be long until this all belongs to Loarn.’ He says, ‘I am going to will everything I’ve got to Loarn and Aclaline.’ I said, ‘Aren’t you going to will Hiram and the other children anything?’ ‘No,’ he says, ‘I am not going to will them a penny.’ I said, ‘What is your reason for this?’ ‘Well,’ he said, ‘Frank, ’y Grod, it is to keep-war down in the family.’ ”

Lee Plodges testified as follows: “I was-acquainted with William E. Hayes, worked for him. I don’t remember what month it was, it was in 1899, I believe November, I am not sure. He told me he had willed his stuff to Loarn; made a will with the understanding that he was to divide with John and Hiram. I was not working for him at this time. This occurred over in the field by a bay barn. Mr. Hayes was my uncle by marriage. His first wife was my mother’s sister.”

Walter Davis testified as follows: “I'was well acquainted with William R. Hayes. I heard him several times make different statements about his property, in a will prior to this one here now. He made one will before this one; this will, I never heard him say anything in regard to it. He said he willed everything to Loarn and John in that will. That statement was made, I think, about 1883. Q. I will get you to state if you ever heard Adaline Hayes say anything about what she intended to do as to his property. A. I heard her in this first will — I heard him and her talking. I heard her claim if she could have her way the older ones could not have a dollar of it, something to that amount. He always told me he intended for John and Loarn to have what he had. I was working •there.”

Defendants introduced a number of witnesses who stated that the testator told them what disposition he had made of his property, both under his first and second will; that he expressed a strong feeling against those of his children whom he had excluded from his will.

The attorney who prepared the will stated that the testator spoke to him on the street about making a will, and afterwards came to his office to have his will drafted or changed, when the following took place : “And I took a tablet and made some notations as to what disposition he wanted to make of his property until we came to the disposition of the land of which he was the owner. Uncle Dick asked me if it was necessary to describe the lands, that is, give the legal description. I told him it was not absolutely necessary, but it made a better chain of title by giving a description of the lands. He was sitting down, or sat down, and took a piece of paper and marked off the lands and was able to give me the description. I think it was of 160 acres, but he was unable to give me the description definitely of the remainder of his land. I suggested to him that it would be better, perhaps, if he was not in a hurry, to wait until he came again. He said he was in no particular hurry and would bring his deed with him, so, on the 4th day of August, 1898, he came into my office bringing with him his deeds, and asked me if I was ready to draft this instrument for him. I told him I was, and we went into my private office, he and I, and the will was drafted according to his suggestions and dictations.

“In discussing the manner in which he would dispose of his property, he made the remark that it is necessary to give all of them something, and asked me if that was correct. I told him it was not, that the only thing the law required was the mentioning of the name of his children, and he could do it by giving them something or not, as he chose to do. He asked me if I was sure of that. I told him I was. ‘Well,’ he says, ‘ ’y God, I don’t want any of them to have a penny but Loarn.’ Well, he also had some talk about the children, whether he should disinherit them. I don’t remember distinctly about any of the girls being mentioned, except Mrs. Anderson, and that seemed to be more a dislike for Mrs. Anderson’s husband than for herself. Q. Tom Anderson? A. Yes, sir. And he appeared to be very bitter against his son Prior at that time, and related the circumstance of a difficulty that Prior related here on the stand yesterday.

“The will was drafted in accordance with his wishes. I asked him who he wanted to attest it, he said he would go down and find some one. He went down on the street and was gone perhaps twenty minutes, I judge, something 'like that, and he returned with the witnesses, Pierce and Beinbold. I think they all came in the office about the same time, so I asked him if he was ready to sign it. He said, ‘I want you to read that to these men, I want them to know that I know what is in it,’ a little unusual, but I read it. I had read it to Mr. Hayes at least once before that, and I presume read each paragraph as I wrote it. I don’t remember distinctly about that fact. I read it before the witnesses came up and after it had been completed, and, at his request, read it to the witnesses for them; each came in and signed it, and the will was duly executed, and he asked me if I would keep it. I told him I had no safe and that it was customary and usual to deposit those instruments in some safer place than I had, and he took the instrument in a sealed envelope with the fact stated thereon that it contained the last will and testament of Wm. B. Hayes, and perhaps the names of the witnesses and executor, I don’t know about that. I sealed the envelope up and gave it to him, and he says: ‘I will take it over to Jack,’ meaning Mr. Howard, and, he left the office.

“Now Mr. Sullivan,' at the time the will was drafted and he came there after having got his deeds, did he have the will that he had formerly made with him? A. Yes, sir; he had the will there on that day, and he referred to that with reference to the drafting of this will in question. Q. If you remember, what was the difference in the provision of the first will and the last one? A. The first will, so far as Adaline Hayes was concerned, was the same as this one. He asked me also in this will, in drafting this will, about what she was entitled to. I told him, and he asked me if I didn’t give her that ranch property what would be the probable results, and I told him that she would renounce the will and take under the law, and he told me to look over this old will and see what she had been given there. My recollection is now that she was given a life estate in some more land in the first will than in the last will, by reason, I suppose, of the fact that lands had advanced, she got more acres maybe, something said along that line. He figured out there .at the time what the lands executed to her were reasonably worth and this first will after taking care of the widow and leaving a legacy to the grandchildren, Jones children, of which there was two at that time, I mean at the time the first will was drafted. I am not sure that was $500 each or $500 to be divided between the two, $250 each. I remember that it made mention of $500, but whether to be divided equally or $500 each, I could not. say. Then'the remainder of the estate was divided between the boys, John and Loarn. With that exception, the will — the first will and the last will, the will in controversy, were the same. No, the first will gave to each of the other children five dollars.

‘ ‘ Q. What did he say, about the time he made this last will, what did he say about what he intended or wanted to do or provide for his wife? A. He said he wanted his wife to have what the law allowed her, but not a ,damn cent more. Q. That was his remarks? A. Yes, sir. Q. Were you acquainted with his personal traits of character and will power and disposition towards people generally? A. Yes, sir, I was pretty familiar with his disposition. Q. Tell the jury all about Uncle Dick Hayes, his characteristics and disposition towards his family and people generally. A. Well, he was a man of a very determined and positive nature and a man who was strong in his affections and equally strong in his prejudices and feelings. He was a man whom you didn’t have to guess where he was ou any proposition. He was free to-express himself as to what he thought was right or wrong; and if he disliked you, he didn’t hesitate to tell you; and if he liked you, he was your friend; he was a good fripnd, in fact, he was.like every boy he raised — there is the same disposition in all of them.

“Mr. Watson: ‘We ask that be stricken out.’

“The court: ‘Yes, let that be stricken out.’ ”

Cross-examination by Mr. Davis: “Q. Do you remember the number of acres he devised in this last will? A. Two hundred and thirty.”

At the conclusion of the trial, the jury rendered a verdict that the will propounded was not the will of W. R. Hayes.

The defendants, Loarn Hayes .and Adaline Hayes,, filed motions for new trial, which being overruled they duly appealed to this court. .

OPINION.

I. The first complaint is the declination of the court to give a peremptory instruction requested by defendants at the close of the entire testimony. This is a legal action. If, therefore, there was any material evidence tending to prove the exertion of undue influence over the mind of the testator when he made-his will, the ease was one for the jury.

The sum of the law on this subject is, that by undue influence is meant the substitution in the terms of the instrument at the time it was executed of the will and purpose of another person or persons for that of the testator. The allegation of undue influence as the sole ground of attack upon a will implies-intellectual competency on the part of the testator other than the dominance over his mind and intentions in the disposal of his estate of a stronger will or different purposes from what he would have expressed if left to Ms own guidance or free ag'ency. [Remsen on Wills, p. 382, sec. 8; Gibony v. Foster, 230 Mo. l. c. 136; Morton v. Heidorn, 135 Mo. 608; Carl v. Gabel, 120 Mo. 283.]

Proof of partiality and prejudice of a father as regards his children which are not engendered by craft or fraud and which do not subdue his mind and free agency, is not sufficient to set aside a will of his property made under the influence of these emotions.Nor would it alter the case that such feelings are unjustly harbored. [Dausman v. Rankin, 189 Mo. l. c. 703; Winn v. Grier, 217 Mo. l. c. 459-460; Schierbaum v. Schemme, 157 Mo. 1.]

The absolute ownership of property implies the right of arbitrary disposition of it according to the loves, hates or caprices of the grantor. [Weston v. Hanson, 212 Mo. l. c. 270 et seq.; Lorts v. Wash, 175 Mo. 505.]

The only limitation of the power of the owner to alienate his property (aside from coercion, fraud, lack of mentality) exists when it is shown that the will, deed or other instrument of conveyance was made at a time when the volition of the grantor was destroyed to the extent that the instrument then executed expressed, not his own intentions and wishes, but the different designs and objects of those who controlled his actions. [Seibert v. Hatcher, 205 Mo. l. c. 100; Tibbe v. Kamp, 154 Mo. 545; Thompson v. Ish, 99 Mo. 160; Jackson v. Hardin, 83 Mo. 175; Conner v. Skaggs, 213 Mo. l. c. 348.]

A careful and painstaking study of the testimony given on the trial wholly fails to afford any legitimate inference that the will propounded was made by the testator under a state of mental subjection, at the time, either to the favored child or to the widow or both. There is much evidence that the plaintiffs “thought” this was so, but no legal basis for that conclusion. The supposition on their part was apparently grounded on the fact of their disinheritance, an alleged statement by the widow that if she had her way they would not get a penny, and the statement of the devisee that it had all been willed to him, and the testator had done as he requested “about everything,” and had orally told him to divide with two of the plaintiffs.

There is no evidence whatever that the widow ' in fact compelled the testator to exclude the plaintiffs, nor that Loam Hayes (the devisee) did so. Indeed, the latter' admitted that his father told him, when he informed him of the contents of the will, that he might divide with two of his brothers. This verbal suggestion of the testator, not contained in his will, did not create a precatory trust enforcible against the devisee. It was simply advisory. It may be that brotherly affection will dictate compliance with his father’s suggestion in that regard, and thus put at rest any suspicion of unfair conduct on his part. But the law does not undertake to enforce duties of imperfect obligation. These rest in foro conscientiae.

In order to imply a trust from the use of precatory words, the terms employed for that purpose must be inserted in the will or other instrument of settlement, and used in an imperative sense as to a certain subject and a certain object or person. [1 Perry on Trusts (6 Ed.), sec. 114, note 1; Lewin on Trusts, (11 Ed.), p. 152, see. 111.] The subject-matter of devise in the case at bar was real estate. The terms relied upon to show a trust rested in mere oral declarations of the testator to the devisee, and were not inserted in the will. In such case neither under the Statute of Frauds nor the Statute of Wills could any trust be decreed by a court of equity. [R. S. 1909, secs. 537 and 2868.]

There was some evidence tending to show that the testator at various times said the reason he did not give anything to his other children was to keep down dissensions in Ms family. These remarks were not contemporaneous with the making of the will. They were only evidentiary of the state of mind of the testator, not of their truth. They can not he taken as proof of undue influence. [Teckenbrock v. McLaughlin, 209 Mo. l. c. 550; Crowson v. Crowson, 172 Mo. l. c. 703; Rule v. Maupin, 84 Mo. 587.]

The only witness who testified as to his state of mind when the will was drawn, states that it was read over twice to him, and in every respect conformed to his wishes and instructions. At the time the will was drawn hy his lawyer, he declared to him (the lawyer) in positive terms that he intended hy his will to leave to his wife just what she would he entitled to receive under the statutes, and he intended the remainder of his estate to he given to the one child named therein. His further communications at that time to the draughtsman disclosed that his state of Mind on that subject arose from the dislike which he entertained against his other children, caused by disputes, affrays, altercations and animosities between himself and his excluded children, and hy the action of some of them in erecting a tombstone to their mother without inscribing thereon that she had been his wife. There is no substantial evidence in this record that the testator was swayed by any other motives than thus created when he made the will in controversy. He was a man of irascible temper, strong in his affections, equally unyielding in his dislikes, of fixity of purpose, and firmness of character. Possessed of such a disposition, it is easy to see, from the evidence in this case, how he came to make the will in suit, and that it reflected only his own. intentions in the disposal of his estate.

Prom the standpoint of moral duty on the part of the parent, the will in question should not have been made, nor should the state of mind on the part of the testator which dictated it have been maintained by him against his offspring at the time of his death; bnt his delinquencies in these respects cannot be corrected by judicial procedure, which is powerless to deprive a person of competent testamentary capacity from making any will expressive of his own purposes and intentions (however unethical) which do not contravene a rule of law or offend public policy.

Our conclusion is that the learned trial court should have told the jury at the close of the trial that there was no evidence that the will propounded had not been duly executed by the testator. The judgment herein is accordingly reversed, and under the ruling in Bradford v. Blossom, 207 Mo. l. c. 231, and other cases, judgment is entered here probating the will in solemn form.'

Brown, G., concurs.

PER CURIAM. — The foregoing opinion of Bond, C., is adopted as the opinion of the court.

All the judges concur.


text:
    J. C. McDonald et al. v. FANNIE McDANIEL et al., Appellants.
    Division One,
    March 29, 1912.
    JUDGMENTS: of Probate Court: Setting Aside in Equity: Fraud. The judgment of a probate court having jurisdiction of the subject-matter and of the parties is just as conclusive as one rendered by a court of general jurisdiction, and it will not be set aside in equity because it was rendered upon a fraudulent cause of action or any other matter to which full defense might have been interposed on the trial, unless such defense was prevented by the fraud of the party who recovered the judgment. In order to annul such a judgment, it must be shown that fraud was practiced in its procurement, or that the court was misled by some artifice, trick or imposition to which the party who obtained the judgment was a privy. In all other cases it can be corrected only by appeal, writ of error, or other apt proceeding in the cause wherein it was rendered.

      Appeal from Dallas Circuit Court. — Hon. Argus Coos, Judge.
    Eeversed.

      John S. Haymes and O. H. Scott,for appellants.

      J. W. Miller and W. G. Haivhins for respondents.
   BOND, C.

Joseph McDonald died intestate in 1888, owning a tract of 120 acres of land in Dallas county, subject to the dower of Sidney Green, who was the mother of his wife. At his death he lived in Texas. He left three children, then minors (the present plaintiffs) but now of age, who bring this action to set aside a sale of land had in the course of administration to pay an allowed demand against his estate. The land was bought by the holder of the allowed demand at the price of $125, being two-thirds of its appraised value. The purchaser was Nathan B. McDaniel, who was the son of the dowress, and brother of the wife of Joseph McDonald, deceased. Calvin Brashears, a brother of the dowress, was appointed administrator by the probate court of Dallas county, and in pursuance of its order made the aforesaid sale to his nephew, Nathan B. McDaniel, who lived on the farm and took cafe of his mother.

The petition alleges that the administration was taken out at the instance of the dowress and the creditor for the purpose of a fraudulent sale of the land to the said creditor; that the note evidencing his demand was invalid and barred by the Statute of Limitations; that the administrator made no defense to the claim and did not notify the nonresident heirs (the present plaintiffs), although he knew of their places of residence; that he colluded with and contracted with the said Nathaniel B. McDaniel to sell him the land before he was appointed administrator. and did after his appointment sell the same at a grossly inadequate price of $125, when the land was worth at the time of said sale the sum of $1000, the said Nathaniel B. McDaniel becoming the purchaser and receiving a deed therefor executed by Calvin Bra-shears, administrator, dated the 23d day of May, 1891; that the said plaintiffs herein, although they wrote letters to Sidney Green inquiring about said land prior to the sale of said land, she, to the knowledge of Nathaniel B. McDaniel and of Fannie McDaniel, one of the defendants herein, answered these letters telling plaintiff they had no lands here, the said Nathan and Fannie McDaniel thereby becoming parties to the deception of these plaintiffs. Each of these plaintiffs at the time said fraudulent judgment was procured by said fraudulent acts as aforesaid were minors, knew nothing of the proceedings at the time, and were therefore unable to make any defense. That the appraisers who appraised the land prior to the sale aforesaid, misunderstanding the purpose of said sale by reason of the misrepresentation of Nathaniel B. McDaniel and the administrator as to the rights of the purchaser under said .sale, appraised the land at much less than its real value. That the said Nathaniel B. McDaniel died on or about the year 1902. Plaintiffs therefore pray the court to set aside the judgment of the probate court which was fraudulently procured as aforesaid and to cancel and hold for naught the deed from Calvin Brashears to said Nathaniel B. McDaniel and divest the defendants of the title and vest the same in plaintiffs, and for all proper relief.

The answer admitted the relationship of the parties plaintiff and defendant as charged in the petition; that the owner of the dower interest in the land (Sidney Green) died in January, 1907; that the owner of the note allowed as a demand against the estate of Joseph McDonald purchased the land under a sale made in pursuance of the orders of the probate court of Dallas county and received a deed therefor; and that he had died; and ■ that the defendants are his widow and children and in possession of said land; and denied the other allegations of the petition.

The evidence tended to show that the note allowed as a demand against intestate’s estate was the unpaid balance of the sum which the maker, Joseph McDonald, had promised to pay one of his wife’s brothers for his interest in the land in controversy; that it was originally given for $100, and credits had been entered thereon for sixty dollars.

On the trial of this case, on the 8th of October, 1908, there was testimony tending to show that the value of the land at the time of its appraisement, with a clear title, was about $1000. However, the only one of the appraisers then living testified that it was worth at that time from $400 to $600 “with a clear title.” The evidence showed’ that in making their appraisement of the land the appraisers valued it subject to the dower interest of Mrs. Green. There was no evidence of’ any irregularity whatever in the proceedings of the county court culminating in this sale.

The court rendered judgment annulling and setting aside the judgment of the probate court made in the course of the administration of said estate, and setting aside the deed made to the purchaser under the sale ordered by that court, and adjudging title to the property described in said deed to be fully vested in the plaintiffs, subject to a lien in favor of defendants for the sum of $125, being the purchase price of said land at the administrator’s sale. From that decree the defendants duly appealed to .this court.

OPINION.

I. After a careful examination of the petition in this case and the evidence adduced on the trial, we have reached the conclusion that neither will support the judgment of the lower court. The object of this suit was to annul the judgment of a probate court rendered with full jurisdiction of the subject-matter and the parties to be affected thereby. Such judgments are just as conclusive as those rendered by courts of general jurisdiction. [Covington v. Chamblin, 156 Mo. l. c. 588.] The judgment of a court of competent jurisdiction will not be set aside in equity because it was rendered upon a fraudulent cause of action, forged document, perjured testimony or any other matter to which full defense might have been interposed on the trial, 'unless such defense was prevented by fraud of the party who recovered the judgment. In order to annul such a judgment, it must be shown that fraud was practiced in its procurement, or that the court was misled by some artifice, trick or imposition to which the party who obtained the judgment was a privy. In all other cases the judgment can only be corrected by appeal, writ of error, or other apt proceeding in the cause wherein it was rendered. [Lewis v. Williams, 54 Mo. 200; Murphy v. DeFrance, 101 Mo. l. c. 157; Payne v. O’Shea, 84 Mo. 130; Hamilton v. McLean, 139 Mo. 678; Murphy v. De France, 105 Mo. 53; Oxley Stave Co. v. Butler Co., 121 Mo. 614; Moody v. Peyton, 135 Mo. 483; Hamilton v. McLean, 169 Mo. 51; Nichols v. Stevens, 123 Mo. l. c. 116; Wonderly v. Lafayette Co., 150 Mo. 635; Donnell v. Wright, 147 Mo. 647; Wabash Railroad Co. v. Merrielees, 182 Mo. 126; Fears v. Riley, 148 Mo. l. c. 58.]

In the case at bar there is no evidence tending to show that the probate court of Dallas county was deceived or misled or imposed upon in its judgment allowing the demand against the intestate’s estate, or in the subsequent order of sale made for the payment of debts, or upon the confirmation of such sale, or at any time during the course of the administration of that estate. Neither is there any evidence that the administrator failed to give the notices required by statute in such cases. No complaint is made of any irregularity on the part of the court or the administrator in the procurement of such sale. The contentions made on behalf of plaintiffs are: that the relationship of the administrator and the purchaser and the dowress; the failure of the administrator to notify the heirs in Texas of the proposed sale; the under valuation of the land by the appraisers; the inadequate price paid, constitute, when taken together, sufficient proof that the judgment of the county court was procured by fraud. This is a misconception of the law. Whatever might be the weight of the foregoing or similar circumstances to set aside deeds and contracts inter partes, clearly they are not sufficient to impeach and annul the judgment of a probate or circuit court in the exercise of its statutory and general jurisdiction. ' For neither singly nor collectively do they afford any evidence of a fraud, practiced in the very act of procuring the judgment, or that the court was induced by fraud to render the judgment in question. The established law of this State is, that equity will set aside judgments fraudulent in their obtention, but will not set aside judgments merely because they weré rendered upon fraudulent causes of action. The necessary conclusion is that the judgment in this case is reversed.

Brown, G., concurs.

PER CURIAM. — The foregoing opinion of Bond, C., is adopted as the opinion of the court.

All the judges concur.