author: LAMM, J.

text:
    HENRY NAPOLEON BUNEL and F. S. HEFFERNAN, Appellants, v. NESTER et al.
    Division One,
    April 11, 1907.
    1. RESULTING TRUSTS: Statute of Frauds: Evidence. Implied trusts, whether they he such as are designated in the hooks as resulting trusts or those called constructive trusts, are taken out of the provisions of the Statute of Frauds. The proof of the existence of such trusts rests in parol.
    2. -: Curator: Deed of Trust: Taking Title in Himself: Speculation on Ward’s Money: Recital in Trustee’s Deed. A senior deed of trust on two pieces of property secured a loan thereon made hy Mills and one made by the curator out of his ward’s funds; a Junior deed of trust on the same property secured the curator’s individual loan as well as one made by him for his ward. Held, that there was no principle of natural equity or written law that denied to the curator the privilege of bidding at the foreclosure sale in his own right, to protect him- ' self as "well as the ward and Mills. If he bid more than the ward’s debt, and treated the purchase as his own and accounted to the ward for her loan, by charging himself in gross for all money coming into his hands originally as the curator of her estate, and there is absent any increment of gain to him by way of speculation on his ward’s money in the purchase of the property, a narrative in the trustee’s deed to him that he paid the purchase price is presumptively true, and he did not take the property in trust for the ward. And this conclusion is fortified by the fact that in his final settlement the curator treats the loans made out of his ward’s estate as if paid to him and as left in the corpus of the trust estate.
    8. —h—: Proof: Statement by Curator. Disconnected parts of poorly remembered conversations between the deceased curator and the debtor whereby the curator is made to say on the date of the trustee’s sale of the mortgaged property that he was bidding for his ward, are not sufficient to show that he took title for his ward — the rule being that where plaintiff relies for title on raising an implied trust, the proof should be so clear, unequivocal, cogent and impelling as to exclude every reasonable doubt from the chancellor’s mind.
    4. ———: ————: This Case. Giving force to the rule as to the character of proof required to establish an implied trust in property, and attending to the fact that both- the trustee who sold the mortgaged property to the curator and the curator are dead, that the curator was solvent' and possessed of large means and handled large sums, that the transaction in question was never questioned in his lifetime, that he treated the property purchased at the trustee’s sale as his own and specifically disposed of it by will, and that the property was not specifically described in the ward’s deed to plaintiffs, while other parcels of real estate were so described therein, it should be held that the proof was not sufficient to show that the curator bought the property at the trustee’s sale for his ward.
    5. -: Ward’s Estate: Interest. Under some circumstances interest should be charged to the curator on the money of his ward. But where the suit is to have a trust declared in her favor in property ■ sold to him under a deed of trust given in part to secure a loan of her money and in part to secure a loan of his, and no claim is made that accrued interest was used towards paying a part of the purchase price, the pleadings are not in shape to authorize a consideration of the question.

      Appeal from Greene Circuit Court. — Hon. James T. Neville, Judge.
    Affirmed.

      Barclay, Shields S Famtleroy and F. S. Hefferncm for appellants.
    (1) Under the evidence the guardian and curator, and his heirs receiving the property from him, are undoubtedly liable in equity to his ward A constructive trust or a resulting trust is immediately created by the conversion of the guardian, and he and his heirs hold the property as trustees for the true owner. Huttman v. Yiesselman, 48 Mo. App. 582; Douschroeder v. Thias, 51 Mo. 100; Kelley v. Johnson, 28 Mo. 249; Miller v. Davis, 50 Mo. 572; Plumb v. Cooper, 121 Mo. 668; Boyd v. Mammoth Spring Co., 137 Mo. 482; Paul v. Chouteau, 14‘Mo. 580; Shaw v. Shaw, 86 Mo. 594; In re Ferguson Estate, 124 Mo. 574. (2) Under the circumstances there was a constructive trust created by the facts in equity, by which John O ’Day was bound to account, for the property in his hands, to plaintiff. The property used by O’Day was originally the prop1erty of Henry N. Bunel. It was decreed out of him by a fraudulent decree of the New York Court. When that decree was set aside by the United States Circuit Court on the ground that it was fraudulently obtained and admitted by many to be so obtained by fraud, eo instanti, H. N. Bunel’s rights to the fund in O’Day’s hands were restored and O ’Day held the fund for him as an equitable trust, and when he converted the property sued for, to his own use, he became liable to account to the real owner. Patterson v. Booth, 103 Mo. 402; Green Tree Brewing Co. v. Dold, 45 Mo. App. 603; Gamble v. Gibson, 59 Mo. 585; Monroe v. Collins, 95 Mo. 33; 1 Perry on Trusts (3 Ed.), sec. 27; Bircher v. St. Louis Metal Co., 77 Mo. App. 500; State ex rel. v. Elliott, 157 Mo. 609; Burford v. Aldridge, 165 Mo. 419 ; Bircher v. Walther, 163 Mo. 461; Pearson v. Haydell, 90 Mo. App. 253; Clark v. Bank, 57 Mo. App. 277; Harrison v. Murphy, 106 Mo. App. 465; Heil v. Heil, 184 Mo. 665; Garrett v. Garrett, 171 Mo. 155; Lincoln Trust Co. v. Wolff, 91 Mo. App. 133; State ex rel. v. Berger, 92 Mo. App. 631; Crawford v. Jones, 163 M01. 577; Farrell v. Farrell, 91 Mo. App. 665; Mayer v. Bank, 86 Mo. App. 422; Meystedt v. Madden, 86 Mo. App. 178; Davis v. Hoffman, 167 Mo. 573; Keet v. Gideon, 80 Mo. App. 609; Nuggles v. Callison, 143 Mo. 527. (3) (a) The fact that John O’Day received said property as guardian of Mary Earles Kee, she having been fraudulently adjudged to be an heir of Charles E. Bunel, did not justify said O’Day in rol> bing the estate of his said ward, by converting it to his own use, and when said fraudulent adjudication was admitted by his ward, and decreed to be fraudulent by the United States Circuit Court, the equitable title to all the property and its income and profits in the hands of John O’Day as such guardian, was held by him for the benefit of Henry Napoleon Bunel, and he was bound to account to Bunel for any property belonging to said funds converted by him to his own use. Patterson v. Booth, 103 Mo. 402; Gamble v. Gibson, 59 Mo. 585; Evangelical Synod of N. A. v. Schoenich, 43 Mo. 652; McGuire v. Nugent, 103 Mo. 161; Thorpe v. McPike, 62 Mo. 300; Norton v. Irwin, 43 Mo. 153; Bispham’s Principles of Equity, p. 92; Perry on Trusts (2 Ed.), sec. 429; Hill on Trusts (3 Ed.), 160; Baldwin v. Dalton, 168. Mo. 20; Phillips v. Overfield, 100 Mo. 466; Monroe v. Collins, 95 Mo. 33. (b) . The fraudulent conversions by O ’Day being shown, the true owner, can follow the fund into the property held by his heirs. Patterson v. Booth, 103 Mo. 402; Roach v. Coraffa, 85 Col. 436; Bremell v. Adams, 146 Mo. 70. (4) (a) The conveyance by Mary Earles Kee to Henry N. Bunel of all her right, title and interest in and to all the money, property or effects due her from the estate of John O’Day, deceased, her former guardian and curator, being money and property that the said John 0 ’Day had received as her guardian and curator, and all the interests and profits arising therefrom to said Henry Napoleon Bunel, giving the said Henry Napoleon Bunel the same right to sue for the same that she had, and also all the money, notes, bonds and evidence of the debt due and held in trust for her by the New York Life Insurance and Trust Company of New York City in the State of New York, was not a mere assignment of the naked right to sue for fraud, but was based on valuable considerations, (b) The settlement was of disputed and litigated claims between them which is always a good consideration, (c) The deed was a restoration to the rightful owner, as far as in her power lay, of the property in 0’Day’s hands which had been fraudulently adjudged to Mary Earles by the New York court as the result of a fraudulent conspiracy. This is of itself a good consideration and canot be held to be the assignment of a mere naked right to sue for fraudulent conversion. Smith v. Wade, 43 Mo. 557; Jones v. Babcock, 15 Mo. App. 149; Lionberger v. Baker, 14 Mo. App. 353; Page v. Gardner, 20 Mo. 507; Johnson Co. v. Bryson, 27 Mo. App. 341; Conn. Mut. Life Co. v. Smith, 117 Mo. 261; Goodger v. Finn, 10 Mo. App. 226; Dickson v. Merchants Elevator Co., 44 Mo'. App. 498; Smith v. Harris, 43 Mo. 557; Wilson v. Railroad, 120 Mo. 45; O ’Day v. Meadows & O’Day, 194 Mo. 617. (5) Where a trustee mixes trust money with his own so that it cannot be distinguished what particular part is trust money and what part is private money, equity will follow the trust money by taking out what is due the cestui que trust. Harrison v. Smith, 83 Mo. 210; Staller v. Coats, 88 Mo. 514; Evangelical Syn. of N. A. v. Schoeneich, 143 Mo. 652; Pundman v. Schoeneich, 144 Mo-. 149; Tierman’s Ex. v. Security B. & L. Assn., 152 Mo. 135; Flint Roar Cart Co. v. Stephens, 32 Mo. App. 341; Bircher v. Walther, 163 Mo. 461; Leonard v. Latimer, 67 Mo. App. 138; Bircher v. Sheet Metal Co., 77 Mo. 509; Bank v. Bright-wood, 148 Mo. 367; Snoregrass v. Moore, 30 Mo. Ápp. 232; Clark v. Bank, 57 Mo. App. 281; Bank v. Sanford, 62 Mo. App. 394; Brick Co. v. Schoeneich, 65 Mo. App. 283; Leonard v. Latimer, 67 Mo. App. 138; Peck v. Elliott, 30 Kan. 156; Thompson v. Bank, 8 Atl. 97; Plow Co. v. Lamp, 45 N. W. 104; Phelps v. Overfield, 100 Mo. 466; Meystedt v. Grace, 86 Mo. App. 178; 144 Mo. 149; 143 Mo. 664; 83 Mo. 210. (6) Any omission or concealment that wrongs the estate must he considered: fraudulent without any reference to the motive that dictates it. Clyce v. Anderson, Ex’r, 49 Mo. 37; Smiley v. Smiley, 80 Mo-. 44; Byerly v. Donlin, 73 Mo. 270; West v. Revis, 13 Ind. 294; Plook v. Payne, 14 Wall. (U. S.) 252. (7) The trust will attach to the property which is the product and substitute for the original thing, as it can be traced. Phillips v. Overfield, 100 Mo. 466; Patterson v. Booth, 103 Mo. 402; Parker v. Straat, 39 Mo. App. 616; Butler v. Lawson, 72 Mo. 227; Brief, 117 Mo. 284“; Oliver v. Piatt, 3 How. (U. S.) 333; Bispham’s Equity Jurisprudence (4 Ed.), sec. 86; 1 Perry on Trusts (2 Ed.), pp. 515, 518; 2 Pomeroy on Equity Jurisprudence (1 Ed.), p. 626.

      Delaney & Delaney with E. W. Banister for respondents.
    (1) The bill does not state facts sufficient to entitle complainants to the equitable relief prayed for or to any equitable relief whatever. (2) It will be seen from the allegations of the bill that complainants seek to recover on the theory that John O’Day used the money of his ward, Mary, in paying for the land and that he purchased the property in fact for her, hut took the title in his own name. To establish a trust on the theory that the money actually used in buying the property in question was trust money, the evidence, to warrant a decree, must be so clear, definite and positive as to leave no reasonable ground for doubt. Johnson v. Quarles, 46 Mo. 423; Forrester v. Scoville, 51 Mo. 268; Jackson v. Wood, 88 Mo. 76; Philpot v. Penn, 91 Mo. 38; Rodgers v. Rodgers, 87 Mo. 257; Shaw v. Shaw, 86 Mo. 594; Kennedy v. Kennedy, 57 Mo. 73; Philips v. Overfield, 100 Mo. 466; Adams v. Burns, 96 Mo. 361; Burdett v. May, 100 Mo. 13; King v. Isley, 116 Mo. 155; Dailey v. Dailey, 125 Mo. 96; Buck v. Ashbrook, 59 Mo: 200; Ferris v. Yan Yechten, 7.3 N. Y. 13; Oliver v. Platt, 3 How. 333; Story’s Eq. Jur., secs. 1258; Shepherd v. McEvers, 4 Johns. Ch. 136; Dodge v. Manning, 1 N. Y. 298. “The principle to be deduced” is “that where the trust fund has consisted of money and been mingled with other moneys of the trustee in one mass, undivided and undistinguishable, and the trustee has made investments generally from moneys in his possession, the cestui que trust cannot claim a specific lien upon the property or funds constituting the investments.” Hill on Trustees, 522; Moses v. Margatroget, 1 Johns. Oh. 119; Kip v. Bank, 10 Johns. 63; 2 Kent’s Com., 623, 624; Trevothick v. Austin, 4 Mason 29; Falkland v. Nat. Bk., 84 N. Y. 145; 2 Pom., Eq. Jur., 623n; Atty.-Gen. v. Ins. Co.,-82 N. Y. 193; Cavin v. Gleason, 105 N. Y. 263; Ward v. Higgins, 9 N. Y. 645. (3) When plaintiffs are contending that a resulting trust arose because O’Day used the purchase money of his ward in payment of the real estate purchased, surely this court will not declare a constructive trust and render judgment that O ’Day had no right at all to buy. Capen v. Garrison, 193 Mo. 335 ; Woods v. Boots, 60 Mo. 546; Wendleton v. O’Brien, 68 Mo. App. 675. (4) The right , of a cestui que trust to set aside a sale for fraud practiced by the trustee, or to have one declared a trustee who purchases property with trust funds, is not assignable. There is nothing in plaintiff’s bill or in the evidence in this case which exempts the transaction between Mary and Henry from the operation of this well-established rule. Jones v. Babcock, 15 Mo. App. 149; McMahon v. Allen, 34 Barb. 56; Smith v. Harris, 43 Mo. 557; French v. Shotwell, 5 Johns. Ch. 555; Upton v. Bassett, Cro. Eliz. 445; Story’s Eq., sec. 1040; Morrison v. Deaderick, 10 Humph. 342; Whitney v. Kelly, 94 Cal. (29 Pac. 624); Sanborn v. Doe, 92 Cal. (28 Pac. 105); Dickerson v. Seoun, 44 Mich. 631; Milwaukee v. Railroad, 20 Wis. 163; Carrol v. Potter, Walk. Ch. 355; Wilson v. Railroad, .120 Mo. 45 ; Haseltine v. Smith, 154 Mo. 404; Hayward v. Smith, 187 Mo. 464; French v. Shotwell, 20 Johns, Ch. 668; Shufelt v. Shufelt, 9 Paige Ch. 144; Graham v. Railroad, 102 U. S. 148; Dayton v. Fargo, 45 Mich. 153; 3 Pom. Eq. Jur., 386; Crocker v. Bellangee, 6 Wis. 645. (5) Even if Henry Bunel, on the evidence, had a prior original right to the funds and property, and even if the assignment was taken to remove an obstacle to the assertion of such right, and even if the bill declares on the original right, still the bill must be dismissed because the alleged assignment passes nothing. It does not describe the property involved in this suit nor does it attempt to describe it. It does not refer to O’Day or to his acts in connection with this property. There are no operative words sufficient to pass any interest in realty. The language used is too vague and general to pass a right to sue for fraud in a particular transaction. The word property is used in the restrictive sense of money, bonds, etc. McKinney v. Settles, 31 Mo. 541; Smith v. Hutchinson, 61 Mo. 87; Webb v. Mullins, 78 Ala. Ill; People v. Railroad, 84 N. T. 565; Chicago v. Hulburt, 118 111. 633; Bridges v. Taylor, 102 N. C. 86; Bancroft v. Curtis, 108 Mass. 50; Brailey v. Southborough, 6 Cush. 140.
   LAMM, J.

Plaintiffs filed a bill in equity in the Greene Circuit Court to fasten a trust in their favor on certain real estate in the city of Springfield, Missouri (occupied by defendant, Nester, as tenant), devised by the will of John O’Day, Sr., to certain other defendants, viz: Sue I. Baldwin O’Day, his widow, and his minor children, Catherine, John Baldwin and Thomas K. O’Day, alleging that the other defendants claim some interest — the real estate to be impressed with the trust being described as follows: “A part of lot ten, block two, original plat of Springfield, Missouri, commencing at the southeast corner of said lot ten, thence north on west side of Boonville street twenty-two feet, west 1171/2 feet, thence south twenty-two feet to north line of Olive street, east along north line of said Olive street to Boonville street, the place of beginning. Known as the ‘Mint Saloon Building.’ ”

At hearing, nisi, plaintiffs’ evidence being in, defendants demurred. Their demurrer was sustained and plaintiffs appeal.

A student of the law (Mr. Moore) in Law Notes for March, 1907, p. 225, has written with felicity and judgment on Improbabilities — his data gathered by picking and choosing from the dicta of judges. He points out that Cadwaladee, J., in Snyder v. Ins.. Co., 22 Fed. Cas. 741, says: ‘ ‘ The most improbable things are sometimes true, and the most probable things sometimes don’t happen;” and that Savage, J., in Shepard v. Railroad (Me.), 65 Atl. 20, says: “It is true, in human experience, that almost all things are possible.” It is Byron (was it not?) who philosophizes thus: “Truth is always strange, stranger than fiction,” which is but a paraphrase on the chimney-corner adage that —Truth is stranger than fiction. The French have a saw running in this wise: It is always the impossible that happens, shaded off in everyday nse by variation into: The unexpected always happens.

The miserable story of this case may bear such foreword, inasmuch as its dark incidents lie well within the borders of an evil wonderland. While the homespun names of some of the actors have a tang of cabin and native soil, other names carry the memory of the scholar back to the guillotine, the Reign of Terror, and to the spell of the traditions of the First Napoleon— the threads of that story stretching from France to the pine woods of northern Arkansas. The ease is this:

Damas Napoleon Bunel, once (as we infer) a resident of the United States, died in France a citizen of that Republic on December 31, 1887, intestate, leaving one child and the descendants of another and an immense estate, partly in France and partly in the hands of the New York Life Insurance and Trust Company, as trustee, in the city of New York. It seems that fourteen years prior to his death, and again in 1876, he executed to said trust company certain instruments placing in its hands a large amount of property in trust (said to be of a value of $500,000). The trustee had power to collect and receive the income and dividends of the trust estate, and, during the life of Damas Napoleon .Bunel, apply the same to his use. On his dying, the trust estate was to be divided into two equal parts and administered as follows: One part to be kept invested and the income and profits thereof paid over to the daughter of Damas Napoleon Bunel, Marie Antoinette Alker. She, dying, her moiety was to be turned over to her children “per stirpes, share and share alike.” The other moiety was to be kept invested and the income and profits thereof applied to the use of the son of Damas Napoleon Bunel, to-wit, Charles Emile Bunel. Upon the death of Charles Emile, said trustee was to pay over and transfer this moiety to the child or children of him, the said Charles Emile, “per stirpes, share and share alike/'’

Marie Antoinette Alker and her husband Napoleon A. Alker resided in Prance. What ill wind blew Charles Emile Bnnel far from home and kindred into the hill country of northern Arkansas, we know not; but in 1872 he was there, apparently living in penury and want, and there married.one Nancy J. Petty on the. 20th day of June of that year — the record showing that thereafter “the said Charles Emile Bunel and his wife Nancy lived in obscurity and indigence in different places in Arkansas and Missouri.” In 1878 a son was born to Charles Emile Bunel and Nancy, his wife —the child being-named Henry Napoleon Bunel, and he is one of the plaintiffs in this case. To poverty-and obscurity was soon added the pinching shoe of marital infelicity and Nancy tired of and left the bed and board of Charles Emile. Later this couple drifted into Ozark county, Missouri, and there on April 28, 1884, Charles Emile brought suit against his spouse for divorce, alleging the following grounds: ‘ That for more than six years last past, defendant has willfully and without just cause abandoned the bed of plaintiff, and refused to cohabit with plaintiff, as his wife; that defendant unmindful of the duties of a faithful wife, and the affection of plaintiff for her, on or about the — day of January, 1884, committed adultery with a man to plaintiff unknown. That the defendant is now pregnant by said person. That plaintiff has not had knowledge of defendant’s person for about six years; that defendant has at divers times and places committed adultery with other men whose names and which times and places of said acts of adultery are unknown to plaintiff.” On personal service, on the 9th day of June, 1884, Nancy appeared and answered, admitting her marriage but averring herself chaste. At a trial on the same day, the court heard the proofs, found the allegations of the petition true and granted a divorce to Charles Emile Bunel. Four months thereafter a child was horn to Nancy, a girl, who was named Mary and who figures in this record as “Mollie Earles,” “Mary Earles,” “Marie Bunel,” “Mary Earles Kee,” “Mary Bunel Earles Kee,” and as “Mary Earles McKee.” It seems that one Alfred Earles resided with Charles Emile and Nancy Bunel before their separation, and continued to live at Nancy’s habitation thereafter; and in 1887 this twain were married. From data before us it would seem that, in spite of the untoward facts just laid bare, at least from January 1, 1888, to January 1, 1894, Nancy Earles was a pensioner on the Bunel estate in France to the amount of $500' per annum. Charles Emile Bunel died on the 28th day of December., 1886, and in one year thereafter Damas Napoleon Bunel died. It seems on the death of the latter that ancillary administration was taken out in the city of New York by Frederic R. Coudert, Charles Coudert and Paul Fuller on his estate there situate. That in the spring of 1887 Marie Antoinette Alker and two of her sons came to southern Missouri, found Henry Napoleon Bunel and took him, then a child of nine years, to France, where, barring subsequent visits to this country, he has ever since resided as a citizen. In the Republic of France, one Napoleon Alker, a son of Marie Antoinette, was appointed guardian and curator of Henry Napoleon Bunel, caring for and educated him until his majority; and, having had charge of that portion of his grandfather’s estate belonging to him in France, turned over to him $140,000' of his inheritance. Presently Napoleon Alker, by virtue of his French curatorship, applied to the New York Life Ins. & Trust Co. for the moiety of the estate held in trust for his ward’s father, Charles Emile Bunel. Thereupon said trust company declined to pay over to such curator the whole of said moiety hut, holding a trust estate to be paid over to the “child or children” of Charles Emile Bunel, it demanded proof of Henry Napoleon Bunel’s sole heirship. Thereupon a suit was instituted by the trustee in the Supreme Court of the city of New York, having for its object the determination of that matter: The defendants in that suit were the aforesaid ancillary administrators, Marie.Antoinette Alker, Henry Napoleon Bunel and Mary Earles — thé latter being impleaded as Mary Earles, but pleading as “Marie Bunel.” As we understand it, due service was had in that case. Henry Napoleon Bunel was represented by a guardian ad litem; and we infer Mary Earles, or Marie Bunel, was also so represented — the question at issue being the legitimacy of Mary. Was she the daughter of Charles Emile Bunel, and, therefore, entitled to inherit with Henry Napoleon? Or was she born out of wedlock, the child of Nancy Bunel and the said Henry Earles and therefore only the uterine sister of Henry Napoleon? Proofs were taken and, following them, a judgment entered in the Supreme Court of the city of New York finding the girl, Mary, a legitimate child, and the full sister of Henry Napoleon, and she was decreed co-heir with him in the estate of Charles Emile. Prior to the aforesaid judgment, one Horine was appointed by the probate court of Greene county, Missouri, guardian of the person and curator of the estate of the girl, at that time passing as Marie Bunel. Subsequently one Hansell became her guardian and curator; and we infer he was so acting when the judgment of the Supreme Court of the city of New York was rendered in December, 1893. Thereafter Hansell resigned, and one Prank P. Clements was appointed by the probate court of Greene county her guardian and curator. He in turn resigned, and John O’Day, Sr., took office as guardian and curator by due appointment, giving a bond as such in the sum of $150,000, and receiving from said Clements the portion of his ward’s estate then in Clement’s hands — the part so received being made up of payments to Clements from the New York trustee after the aforesaid judgment in the Supreme Court of the city of New York establishing the legitimacy and heirship of Marie Bunel, and amounting tó cash, $3,816.65, notes $8,700. It seems that Mr. O’Day made a trip to Yoetot, France, and there ascertained that Napoleon Alker of that place had a large estate in his hands belonging to Marie, this on the theory she was co-heir with Henry Napoleon. Subsequently armed with an exemplification of the New York judgment and with an order of the probate court of Greene county directing him to at once proceed to Yoetot, France, and take the necessary steps to collect his ward’s estate and empowering him to settle and compound the claims of his ward and to execute an acquittance and discharge therefor, etc., and further armed with a certificate that he was the guardian and curator of Marie Bunel, under a bond of $150,000 for the faithful discharge of his duty, Mr. O ’Day madé a second trip to- France and by proceedings in the French courts, gained possession of something like $55,000 belonging to his ward —• the same being her share of the estate of her putative grandfather, Damas Napoleon Bunel, in France, and in process of administration there — and brought said sum within the jurisdiction of the probate court of Greene county. Thereafter Mr. O’Day received further sums from the New York trustee, as dividends due Marie Bunel. He made six settlements with the probate court; the first in February, 1896; the second in February, 1897; the third in March, 1898; the fourth in February, 1899; the fifth in March, 1900; and on September 18, 1900, he resigned his trust, presumably having given notice required by Revised Statutes 1899, sec. 3529, and made his final settlement and was discharged — he and the defendant John O’Day, Jr., having been appointed joint curators and receipting to J ohn 0 ’Day, Sr., for the estate left in his hands. The facts charged in plaintiffs’ hill and upon which relief is sought are connected with the curatorship of John O’Day, Sr., prior to his said resignation and final settlement; therefore, these settlements will receive more particular attention further on.

It may he said that John O’Day, Sr., died testate on the 31st day of July, 1901; and that the scene now shifts to the United States Circuit Court for the Southern Division of the Western District of Missouri, sitting at Springfield. In that court, prior to the death of John O’Day, Sr., to-wit, in 1901, Henry Napoleon Bunel, as a citizen of France, lodged a hill in equity against John O’Day, Jr., and John O’Day, Sr., as curators of the estate of Mary Earles Kee, and Mary Earles Kee and Henry Kee, her husband, for the purpose of vesting the apparent title of Mary Earles Kee in and to the trust estate in the hands of said curators out of her and into Henry Napoleon Bunel. John 0 ’Day, Sr., was not served in that case. Subsequently, and after the death of John O’Day, Sr., an amended bill was filed against John O’Day, Jr., as sole curator, and Mary Earles Kee and her husband. It seems that Marie Bunel (or Mary Earles) had married a man named Henry Kee (or McKee), and by said amended bill the facts hereinbefore set down were pleaded; and it was further alleged that Mary Earles Kee was not the child of Charles Emile Búnel, but of said Alfred Earles, i. e., was no grandchild of Damas Napoleon Bunel; that when the father and grandfather of Henry Napoleon Bunel died, and he,' a lad, was taken to France, it became noised abroad in Ozark county that, as the son of Charles Emile Bunel, he was heir to a great estate in France and New York City; that (using metaphor by way of illumination) as certain carnivora scent their prey up the wind, the possibilities of the case invited a simulated claim, even as where the carcass is, there the eagles are gathered together. Accordingly, one R., a deputy United States marshal, conceived the notion of making money by the bold stroke of claiming that Mary Earles was also an heir to the Bunel estate and entitled to one-fourth thereof. To that end R. employed K., an attorney at law, to bring suit to establish by a decree of court that Charles Emile Bunel was the father of Mary Earles; that Nancy and Henry Earles being poor, K. agreed to pay all costs and procure the evidence to establish Mary’s legitimacy, and Nancy Earles agreed to give him one-half of the sum recovered (See Kersey v. O’Day, 173 Mo. 560); that K. and R. thereupon entered into a compact between themselves to procure the necessary evidence and establish such fact, at the time well knowing Mary was a bastard child. To that end the bill alleges they procured perjured testimony tending to show that Charles Emile Bunel was about his wife and had access to her in the months of January, February and March, 1884; that as a device furthering their scheme they caused the little girl, Mary (a Protestant child) to be baptized into the Roman Catholic church by a priest under the name of Marie Bunel, by representing to said priest she was the child of Charles Emile Bunel, a Roman Catholic; that they fraudulently procured from the probate court of Greene county the appointment of Horine as guardian and curator of Marie Bunel; that when issue was joined in the New York suit, the Supreme Court of that State appointed a commissioner, one W., to take testimony; that said court appointed one L. B. to act as guardian ad litem of Henry Napoleon Bunel, then about fourteen years old, and said guardian ad litem sent a young attorney, R., to Missouri to attend the taking of testimony, who betrayed the trust reposed in him and conspired with K., becoming K. ’s servant and tool in procuring suborned witnesses as aforesaid; that the evidence so procured was perjured; that the pleadings in the Supreme Court of New York, alleging that Mary Earles was a child of Charles Emile Bunel, were false; that said conspirators suppressed competent and known proofs establishing the illegitimacy of Mary; that witnesses at hand who knew the facts and informed said conspirators of their knowledge were not called to testify; that others were persuaded.to leave the State, and that a reputable physician who knew that Charles Emile Bunel was impotent for more than eighteen months before the birth of Mary Earles and who was willing to depose to such material fact, was not called to depose; that because of such suppression of testimony and such bribed witnesses falsely swearing to facts having no existence, the Supreme Court of New York was induced to give an iniquitous decree in favor of Mary Earles in which it falsely appears that Charles Emile Bunel was her father; that all said evil things were done and said decree procured in order that said conspirators K. and R. might share the gains ill-gotten from such venture, and that they did receive. $30,000 of the plunder, all of which was paid out of Henry Napoleon Bunel’s estate. It was further alleged that Henry Napoleon was not represented in said suit by any attorney who wanted he should win his case; and that as soon as he learned the frauds perpetrated on him, by a cablegram he instructed the plaintiff, Heffernan, to bring suit to recover the property wrongfully taken from him by said New York judgment. The bill further alleges that John O’Day, Jr., is the sole curator of the minor defendant Mary; that said curator had on hands $25,000 in money and notes; that other large amounts of such trust fund were invested in real estate; that she and said John O’Day, Jr., are in possession of said real estate. Many tracts of land are then set forth and described as affected by said trust, but the tract in suit is not one of them. The prayer of the bill was that the chancellor should determine that the money, notes and real estate aforesaid are the property of Henry Napoleon Bunel; that John O’Day, Jr., as curator, should be decreed to turn the same over to plaintiff; and that a writ of restitution issue for the possession of said real estate, and for general relief.

To the foregoing bill of complaint Alfred Earles made oath that he had heard the complaint read and knew that Mary, the wife of Henry Kee, is not a child of Charles Emile Bunel, but is the child of affiant. To the same effect was the affidavit of Nancy J. Earles. She deposed that she was the mother of plaintiff, Henry Napoleon Bunel, and the mother of Mary Earles Kee, the defendant; that the allegation that Alfred Earles is the father of Mary is true; that witnesses whose testimony was material to establish the fact that Henry Napoleon was the only child begotten of her marriage with Charles Emile Bunel were paid or in some way induced not to give their testimony to- that effect, while other witnesses were induced to falsely swear to a set of given matters falsely showing that Charles Emile Bunel was the father of Mary.

On October 16, 1902, Mary Kee, signing herself, Mary Bunel Earles Kee, made answer to said bill of complaint. By that answer she admitted -she was the child of Nancy and Alfred Earles, who were lawfully married after her birth. She remembers that as a child she was called “Mollie Earles,” and avers that she always knew that Alfred Earles was her father. She admitted in detail the allegations of the complaint charging the wicked practices set-forth therein leading up to the concoction of a fraudulent judgment establishing her legitimacy, though she qualified this by saying that she was but nine years old at the time and had no knowledge of the wrong being done her half-brother. She says: “On yesterday I attained my majority, eighteen years old, which under the laws of this, my native State, entitled me to act for myself. And being now of lawful age, I take this, my earliest opportunity, to restore to the plaintiff, my dear and affectionate half-brother, his property, and in every way in my power to right the wrongs done him by the designing conspirators who imposed upon the said Supreme Court of the city and county of New York, the false, fraudulent and perjured testimony tending to show that I was the daughter of Charles Emile Bunel and Nancy Petty, impleaded in some places as Nancy J. Petty.” Following this, by name, date and detail, she admits, seriatim, each and every of the charges in the petition, including her mother’s shame; admits that John O’Day, her former curator, purchased with trust funds in his hands as her curator the specific parcels of real estate described, in the bill of complaint; admits’ that the plaintiff Henry Napoleon Bunel is the only heir born of the marriage of Charles Emile Bunel and Nancy Petty; and the final paragraph of her answer is as follows: “Now, that I have attained my age of eighteen years, I am willing to right the wrongs done plaintiff as aforesaid, this court entering a decree based upon the aforesaid facts, stated in the plaintiff’s bill of complaint, and admitted by me to be true; and I consent that a decree pro forma be entered, giving to the plaintiff the title to all the above-described real estate and all the money, bonds, notes, and all other personal property now in possession of John O’Day, Jr., my curator.” This answer was verified by the affidavit of Mary.

It was asserted ore terms by counsel, and may be seen by inference in the case, that the foregoing concessions by way of admission were a part of a compromise of the litigation in the Federal court, in which at least a $10,000 deposit (to become Mary’s) figured. It seems that subsequently Mary Earles Kee made application to withdraw her said answer, and asked leave to file further answer and cross-bill, which pleading was tendered with the application. This application was denied, and it is asserted that evidence was taken upon which that denial was predicated. Whereupon, a decree was entered, in effect, pro confesso that the personal property of whatever kind and description in the possession or control of John O’Day, Jr., curator of the estate of Mary Earles Kee at the time of the institution of this suit, and since coming into his possession and under his control, was and is held in trust for the use and benefit of Henry Napoleon Bunel, and said Henry Napoleon is entitled to have an accounting with said curator; and, further, that the right, title and interest in and to said personal property is divested out of her and vested into Henry Napoleon; and that all the right, title and interest of the defendant Mary in and to the fund described in the bill of complaint held in trust for her by the New York Life Insurance and Trust Co., in law and equity belonged to Henry Napoleon, and the same is divested out of the said Mary and into him. John O’Day, Jr., was perpetually enjoined from paying over any of said funds in his hands to Mary, and it is set forth that the real estate described in the bill has been adjusted by mutual conveyances and is not affected by the decree — costs were adjudged against Mary, and the cause continued for further proceedings in the matter of the accounting between Henry Napoleon and John O’Day, Jr.

It is asserted that the foregoing decree was appealed from by Mary Earles Kee and by John O’Day, Jr., and a settlement made pending such appeal, but such facts do not appear in this record.

On the same day of Mary’s answer to the amended bill in the Federal court, and of her making affidavit to the same, to-wit, October 16, 1902, she executed a quitclaim deed to Henry Napoleon Bunel in consideration of one dollar. By this deed she conveyed sundry tracts of land in Greene county to Henry Napoleon by specific description; but the tract in suit is not one of those described. If that tract was conveyed, or in any wise affected by that deed, as a deed, it was under the following clause of the conveyance:

“I hereby assign, transfer all ray rights, title, interest and estate in and to all the money, property, or effects due me from the estate of John D’Day deceased, my former guardian and curator; being money and property that the said John 0 ’Day, now deceased, received as my guardian and curator, or as my curator, and all the interest and profits arising therefrom, to the said Henry Napoleon Bunel, giving the said Henry Napoleon Bunel the same right to sue for the same that I have. Also all the money, notes, bonds and evidence of the debt due and held in trust for me by the New York Life Insurance and Trust Company of New York City, in the State of New York.”

Following Mary’s deed to Henry (and on the same day) he executed a warranty deed for an expressed consideration of one dollar to the plaintiff, F. S. Hefferaan, his attorney in the litigation in the Federal court, specifically conveying the property in dispute, with other property, and further assigning and transferring to Mr. Heffernan all his right, title and interest in and to all the money or property “due from the estate of John O’Day, deceased,” the former guardian and curator of Mary Bunel Earles, giving said Heffernan the same right the grantor had to sue for said property or trust fund in any court of law or equity.

Some time thereafter, at a date not fixed by the record, Mr. Heffernan made an examination of the record and it was shown by his oral testimony, over the objection of defendants, that he had made a reconveyance to Henry Napoleon of a half interest in the property conveyed and rights transferred to him. His explanation of this reconveyance was as follows: “After making an examination of the records of the probate court, I ascertained that the liabilities due from the estate of John O’Day, deceased, would be much larger than I had first supposed, and I reassigned to Henry N. Bunel one-half of the property he had conveyed to me.” Mr.. Heffernan was allowed to testify that he sent this conveyance to Henry Napoleon Bunel at Gates Station in Greene county, where he was living with his mother; that shortly thereafter, “his stepfather told me he received it.” The witness further testified that presently Bunel came into his office and admitted receiving it, and that he swore he received it in the Federal court; that Bunel was in Paris the last the witness heard of him.

The trial of the case at bar was in November, 1903,. and Mr. Heffernan testified that Henry Napoleon left the State of Missouri in “February last,” with the understanding that he would be back before the first day of April. There was no record of the conveyance from Heffernan to Henry Napoleon; and on the above state of proof, over the objection of defendants and exception saved, Mr. Heffernan was permitted to give secondary evidence of the contents of this unrecorded deed, presumably in the possession of his co-plaintiff.

Based on the theory that plaintiffs were entitled to an undivided half each in the property in suit, plaintiffs (as said) lodged a bill in equity in the circuit court of Greene county against the defendants. This bill was subsequently amended, and as amended, in substance, pleads that John O’Day was the guardian and curator of the estate of Mary Earles, alias Mary Bunel; that there came into his hands as such guardian and curator $90,000 of money belonging to Mary, then a minor; that on the 7th day of September, 1896, said guardian and curator loaned $10,000 of such funds to Pattie D. McElhaney and took the note of said McElhaney therefor in his name as guardian and curator, and at the same time, to secure said loan, took from Pattie D. and her husband a deed of trust on the Mint Saloon building, being the property heretofore described; that on the 2nd day of February, 1898, said deed of trust was foreclosed and the property sold at public vendue and bid in by said O’Day for his ward, but that O’Day took the title through a trustee’s deed in his own name; that the money used for the said purchase of said property was Mary’s, and that O’Day held the legal title thereto up to the time of his death; that when he died in July, 1901, leaving a will, he devised' said property to his widow and certain of the defendants, and the legal title now rests in said devisees — defendant Nester being a tenant under them; that the monthly rental of said property was $100, which defendants had collected since August, 1901. The bill proceeds to set forth that Henry Napoleon Bunel brought a suit in equity in the United States Circuit court at Springfield wherein he contended that Mary Earles was only his uterine sister; that in said suit Mary contended she was his full sister; that Henry contended that all the property and trust fund in the possession of O’Day as guardian and curator of Mary were his property as only heir at law of Charles Emile Bunel, deceased; that the object of said suit in the United States Circuit Court was to have the property in the possession and control of the guardian and curator of Mary decreed to be his property ; that the Mint Saloon was a part of the property to be affected; that during the pendency of that suit Mary reached her majority, and, by way of a settlement, admitted by answer she was only the uterine sister of Henry, and that, in consideration of a compromise, Mary conveyed and assigned all the trust property to Henry, including the property sued for, and Henry conveyed said property back to Mary for her ■use and benefit during her natural life. Mary’s deed of October 16, 1902, to Henry is pleaded; and it is averred that by said deed she assigned and transferred and duly conveyed said property (the Mint Saloon) and all rights and rents due therefrom to Henry, and Henry on the same day made a like conveyance and assignment to his co-plaintiff, Heffernan; and Heffernan, in November, 1902, assigned and transferred an undivided half interest in the Mint Saloon back to his co-plaintiff, Henry; and that the two are now, in equity and good conscience, entitled to said property. Wherefore, they pray an accounting of the rents, that the title of said real estate be vested out of defendants and into plaintiffs, that a writ of restitution issue, and for costs and for such other orders, judgments, and decrees as a court of equity may find right and just.

To this amended bill, defendants demurred, generally and specially, and, their demurrer being overruled, they answered, admitting that John O’Day was the guardian and curator of Mary and that defendants are the devisees of said 0 ’Day, but they deny all other allegations, and specifically deny that the Mint Saloon was purchased with the money of Mary Earles. Defendants then, by way of further defense, allege that the conveyance of Mary Earles to plaintiffs was procured by fraud and misrepresentation; that the suit in the Federal court, referred to by plaintiff, is still pending in the Supreme Court of the United States; and that Mary Earles is now claiming that said alleged settlement was procured by fraud. Defendants say that Mary Earles should be made á party hereto.

The last paragraph of the answer, charging fraud in the assignment and settlement, and the pendency of the suit in the Supreme Court of the United States, was struck out on motion, leaving the answer stand on the general issue modified by the specific admissions aforesaid.

To sustain the allegations of the hill, the settlements of John O’Day, Sr., as curator of Mary were put in evidence. It seems Mr. O’Day was a man of large means and died leaving a very large estate. It does not appear that he kept a hank account as a curator; and the case is presented to ns on the theory the ward’s funds were commingled with his own. It does appear that he loaned a great deal of his ward’s money; and notes, deeds of trust, sales thereunder, and conveyances pertaining to the same, disconnected from the matter in hand, were introduced in evidence, on the theory of plaintiff’s learned counsel that they tended to show a misuse of funds in those specific instances — thereby showing (they argue) that his. system of dealing with the trust estate indicated a disposition to speculate off of the beneficiary. But these transactions are not developed sufficiently to show a general plan of exploiting the trust and being wholly disconnected from the subject-matter of the suit, we consider them of no value and they are put to one side. The curatorship seems to have been, a stormy one, full of incidents and litigation ; and divers attorneys were employed from time to time by Mr. O’Day to protect his ward’s interests, and heavy expense was entailed. One of these attorneys, it was said ore tenus, and as indicated by the final settlement, was Mr. Heffernan, one of the plaintiffs in this case. It was said, and not denied, that he prepared the final settlement of Mr. O’Day as curator. It seems that in the annual settlements errors of bookkeeping crept in, subsequently discovered and corrected; also that in some of these settlements Mr. 0 ’Day distinguished between cash on hand and money loaned out and took a credit for such loans in his accounts. In other settlements he treated- the loans made by him as curator as cash on hand and’ charged himself in gross. In some instances loans were fore1 alosed and the property bought in the name of his ward. In such instances the facts appear in the settlements and a credit is taken by the curator for the amount of money invested in real estate by purchase in the ward’s name and foreclosure. In the view we take of- this case, it will not be necessary to set forth these settlements, because there is no attempt made here to impeach the final settlement, and set aside the order approving the same. As said, the case was argued to us on the theory one of the plaintiffs, Mr. Heffernan, made that settlement; and therein the plan was adopted of going back over the history of the curatorship and charging Mr. O’Day with the money coming into his hands as curator, and taking a credit for summarized disbursements shown by the annual settlements and approved by the probate court. That settlement is as follows:

In the Probate Court of Greene County, Missouri.

John 0 ’Day, guardian and curator of the estate of Mary Bunel, submits the following account current for final settlement in said estate:

First settlement to inventory from former curator.....$14,508 83
Interest collected on Dorsey note.................. 20 93
By cash disbursed...... $ 2,902 78
Second settlement, to cash from France........... 54,545 00
To interest received .. .. 1,975 00
By cash disbursed...... 7,700 75
Third settlement, to interest collected............... 3,796 15
By cash disbursed...... 2,472 11
Fourth settlement to interest received............... 2,669 40
, By cash disbursed...... 4,054 03
Fifth settlement, to interest collected............... 2,803 31
By cash disbursed....... 22,044 40
Final Settlement.
March, 1900. By cash allowance Nancy Earles..... 40 00
March 8. By cash, H. M. Heckart, for work....... 20 00
March 12. By cash, ward .. 5 00
March 12. By cash, court cost 13 75
March 14. By cash, Mat. Sims, abstract supreme court................. 675 60
March 20. By cash F. S. Heffernan, attorney, making settlement of case in supreme court........... $ 2,000 00
April 1. By cash, Nancy Earles, allowance........ 40 00
April 4. By cash, Reps Dry Goods Co............... 13 75
April 10. By cash, back tax . 128 35
April 10. By cash, back tax ... 71 95
April 10. By cash, back tax .. 62 74
April 10. By cash, back tax .. 37 05
April 10. By cash, back tax .. 3515
April 16. By cash, Jas. Y. Milner, rent............. 250 00
May 3. By cash, Nancy Earles, allowance............ 40 00
May 16. By cash, Mary Bunel Kee, ward............. 200 00
June 2. By cash, Towns & Dean, painting for ward .. 8 35
June 6. By cash, John O’Day, Jr., mdse, for ward .... 15 52
June 6. By cash, Nancy Earles, allowance ......'....... ' 40 00
June 23. By cash, Mary Bunel 150 00
June 27. By cash, Mary Bunel 100 00
July 1. By cash, Nancy Earles, allowance............. 40 00
July 19. By cash, to John O’Day, mdse, for ward..... 81 60
Aug. 1. By cash, Nancy Earles, allowance...... 40 00
Aug. 25. By cash, Davis Planing Mill Co., for repairs .. 40 00
Aug. 27. By cash, Mary Bunel Kee, ward............ 25 00
Aug. 31. By cash, Perry Buchanan, repairs.......... 3 50
Sept. 1. By cash, Nancy Earles, allowance ............. 40 00
Sept. 13. By cash, Mary Bunel Kee, ward.......... 25 00
Sept. 15. By cash, attorney fee for this settlement......• 100 00
Sept. 15. By cash, court costs to date............... 10 65
Sept. 15. By cash, real estate taken under deeds of trust, ete.................. 15,932 00
To interest collected from New York..................$ 815 49
To interest from P. S. Heffernan................. 250 00
To rents collected.......... 176 00
$81,560 11
Disbursements ............ $59,458 85
By allowance defending all suits against the estate and case of management for five and one-half years......... 1,500.00
By spending money for ward . 5 00
April 3, 1900. By cash, J. L. Stewart, in full account .. 42 40
By cash, Error, Mat. Sims account ........,......... 1 80
By cash, notice of final settlement ................, 2 50
By cash, tax 1899 .......... 352 51
By cash, A. C. Cowden, attorney for ward in examining all settlements ...... 200 00
By cash, to ward this date .... 100 00
By cash, O. H. Travers, attorney for.............. 400 00
By cash, Additional costs ... 1 80
$81,560 11 $62,077 36
Balance due estate, bonds, notes and cash.............. $19,482 75

It is agreed on all sides that the item in the foregoing settlement, to wit, “By cash, real estate taken under deeds of trust, etc., $15,932, ’ ’ did not include the Mint Saloon, but did cover real estate purchased in the name of his ward at foreclosure. Plaintiffs’ equities, if any, arise, out of a McElhaney loan, the facts pertaining to which will presently appear with particularity. It is further agreed on all hands that $10,000 of the ward’s estate were loaned tó the McElhaneys. It is contended by defendants’ learned counsel that O’Day charged himself in the foregoing final settlement with the body of the McElhaney loan. Plaintiffs’ learned counsel say contra. Their position is that O’Day “never accounted to his ward for the conversion of this fund.” We find the facts to he that the body of.the McElhaney loan is charged to O’Day in the foregoing final settlement — appearing therein in the bulk charges made against himself of the original moneys coming into his hands as curator. Furthermore, as shown by one of his annual settlements, he collected certain interest on the McElhaney loan; and that interest is charged to him and appears in the final settlement under the head of,1 ‘ To interest received. ’ ’ It was shown that the foregoing final settlement of John O’Day was examined, filed and approved on the'18th day- of September, 1903, by the probate court of Greene county, and that on the day of the approval of that settlement John O’Day, Jr., and John O’Day, Sr., as curators of the estate of Mary Bunel Kee, receipted to John O’Day, Sr., for the balance due his ward as found by that final settlement, and John O’Day, Sr., as individual curator, stood discharged.

Attending to the McElhaney loan, it appears that on the 7th day of September, 1896, John O’Day, Sr., as curator of Mary Bunel, loaned Pattie D. McElhaney $8,500 and took her notes to himself as the guardian and curator of Mary for said sum, due in three years, with interest payable semi-annually. At that very time Mrs. McElhaney was indebted to one Mills in the sum of $765, evidenced by a note. As we understand it, it was necessary to protect the Mills note in order to perfect the title to the property, securing the loan; accordingly, the Mills > paper was secured by the same deed of trust securing the loan. This deed of trust was to E. C. O’Day, trustee, was in ordinary form, with power of sale, and conveyed two pieces of property in Springfield — one, known as the First National Bank building, and lot, is the subject-matter of another suit; the other, known as the Mint Saloon, is the subject-matter of this suit. Subsequently, on the 27th day of October, 1896, John O’Day, Sr., as curator for Mary, loaned to tbe McElhaneys, husband and wife, $1,500 more of his ward’s money. At that very time the MeElhaneys were indebted to him individually in sums evidenced by notes said to .aggregate $5,000. Thereupon, to secure the new advance of $1,500 from his ward’s funds, and to secure his own individual indebtedness, the McElhaneys executed a deed of trust in ordinary form to E. C. O ’Day, trustee, covering the same property, to-wit, the First National Bank building and the Mint Saloon. The note evidencing the new advance was taken in the name of O ’Day as curator, and ran for two years, with eight per cent interest payable semiannually.

Because of the default made “in the payment of taxes, insurance, and interest,” the deed of trust bearing the date of September 8, 1896, was foreclosed by advertisement by E. C. O ’Day as trustee on the 8th day of February, 1898 — eighteen months after its execution. .At that sale John O’Day, Sr., purchased both the properties conveyed by the deed of trust at a gross sum of $14,600, and received a trustee’s deed therefor to himself individually, in which it is narrated that said sum was paid to the trustee by the purchaser. It will be seen that the deed of trust foreclosed secured $8,500 of Mary’s funds and also the Mills note; and it will be seen, further, that here was a surplus (over both the debts) created by this sale, subject to be applied on' indebtedness secured by the second deed of trust and sufficient to wipe out the $1,500 of the ward’s money secured thereby, and leaving a further surplus to be applied on the individual indebtedness of John O’Day, also so secured.

By oral testimony from R. L. McElhaney, the husband of Pattie D., and a son, Homer L., who attended the sale, it was shown that the First National Bank building brought $6,600 and the Mint Saloon $8,000. The elder McElhaney testified he was endeavoring to stop the "sale; that John O’Day assured him the property would bring more than the deed of trust, and that he (O’Day) would bid it up; that it made no difference if it sold for $100,000 he (O’Day) would pay the McElhaneys the difference between what it was worth and what was borrowed on it. Witness said he did not remember all the conversation, but O ’Day said he would buy the property for his ward — he was bidding on it for his ward. It was shown that O ’Day had never paid over any surplus to the McElhaneys; that they had tried to have a settlement with him, but that he was sick and pleaded for time. By the son, Homer L., it was shown that O’Day assured his father at the sale that he was buying the property in to protect his ward, Mary Bunel, and further assured his father he would protect Mrs. McElhaney in her interest; and that if the property did not bring what they thought was an equitable value for it, he (O'’Day) would bid it in for his ward — that he was bidding it in for his ward.

It was shown that John O’Day was not a party to the decree in the Federal court. Alive when the suit was brought, he was not served, and when he died pending the suit, it was not revived against his heirs or representatives. There is not ah allegation or a particle of proof connecting him in any way with the frauds leading up to the New York judgment; nor was he a party to that proceeding. There was no evidence tending to show that the Mint Saloon building and the First National Bank building were bought in by O’Day at a speculative value — contra, the indications are that full value was paid for both. There is no evidence there was any surplus at that sale over and above the McElhaney obligations, the Mills note and the secured individual indebtedness of John O’Day. The two Mc-Elhaney notes were put in evidence — one for $8,500, the other for $1,500; and indorsed across the face of each was the following: “Paid by sale under deed of trust.” Who put that indorsement on these notes was not shown, nor does the record show from whose custody these notes came. Mr. Mills was placed on the stand, and by him it was shown that the trustee paid him nothing, but that John O’Day, Sr., had permitted him to collect the rents on the Mint Saloon for a time to apply on his (Mills’) debt; and that he had collected and applied the sum of $592, leaving a balance unpaid. It was admitted at the trial that E. O. O’Day was dead, and the will of John Q’Day, Sr., devising the Mint Saloon property to defendant Catherine and her children was introduced.

Such was plaintiffs’ case; and on the foregoing record it is insisted there was either a resulting or a constructive trust arising from the facts in proof in favor of Mary Earles; that the devisees in John 0’Day’s will held subject to that trust and were seized of the property to the use of Mary Earles.; that when the circuit court of the United States decreed the funds in the hands of O’Day to belong to Henry Napoleon, and when Mary admitted that to be so- and executed her deed to Henry, the beneficial interest in the property passed to Henry and then passed to his co-plaintiff, Heffernan, under his deed, that an undivided half interest passed back to Henry by Heffernan’s unrecorded deed, and that the chancellor erred in sustaining the demurrer to the evidence and dismissing the bill.

Did the chancellor err? We think not. Because-:

Implied trusts, whether they be such as are designated in the books as resulting trusts or those called constructive trusts, were early taken out of the provisions of the Statute of Frauds and Perjuries, to-wit, the statute “For the Prevention of Frauds and Perjuries” (Vol. 1 Laws of Mo. 1825, p. 403). And such is now the written law. [R. S. 1899, sec. 3417.] That is, the proof of the existence of snch trusts rests in parol. “Resulting or presumptive trusts,” says Bouvier (2 Bouv., Tit. Resulting Trusts), “being those which are implied or presumed from the supposed intention of the parties and the nature of the transaction; constructive trusts, such as are raised independently of any such intention, and which are forced on the conscience of the trustee by equitable construction and the operation of law.” A familiar example of a resulting trust is where A purchases real estate with the money of B (A and B being strangers) and takes the title in his own name. In such case a resulting trust arises in fav- or of B — the trust being “raised by the law from the presumed intention of the parties, and the natural equity that one who furnishes the means for the acquisition of the property should enjoy its benefit. ” Where a part only of the purchase money is furnished by the beneficiary, the trust is for a proportionate share of the land bought. [Stevenson v. Smith, 189 Mo. l. c. 466; In re Ferguson’s Estate, 124 Mo. l. c. 582.]

An analysis of plaintiffs’ amended bill shows it to be somewhat framed on the theory of a resulting trust, as distinguished from that class of implied trusts known as constructive trusts. The bill charges in so many words: “ That the funds and the money used for the purchase of said property was the money of said Mary, held by the said O’Day, as such guardian and curator of said Mary.” Plaintiffs’ learned counsel argue there was a trust raised by the facts in proof, that technically it was either a resulting or constructive trust, it was immaterial which, and that under the averments of their bill they should recover on either theory. In the view we take of the matter it will not be necessary to let the case ride off on a mere refined application of the rules of pleading. Both plaintiffs and defendants are in equity, the facts are here, and the thing to do is to get at the equity of the case.

At the very threshold it must he evident that plaintiffs’ equities, if any, must stand or fall on the proposition that the trust fund in the hands of John O’Day was used in the purchase of the Mint Saloon property. If it was so used, then it might be necessary to consider contentions made by defendants and denied by plaintiffs, to-wit, that, whatever the rights of Mary, those rights were not a vendible commodity — and hence were not transferred to Henry Napoleon Bunel; and that if they could be transferred to Henry, they could not be transferred by him to the plaintiff, Heffernan, or be kept alive or revived by the conveyance of Heffernan of a half interest back to Bunel.

' Present the proof that 0 ’Day accounted for the body of the McElhaney loan by charging himself in gross with the whole estate coming into his hands originally, as here, and absent the proof that there was any increment of gain by way of speculation in the purchase of the Mint Saloon property, as here, then we have nothing to do with collateral matters on other property transactions lugged into the ease and claimed to show a uniform and general scheme of exploiting the trust estate. This controversy is between plaintiffs, on one side, and-the widow and minor children of John 0'’Day who set up title to the Mint Saloon building under a devise in his will, on the other; and they may not be deprived of their estate by either innuendo or argument based on transactions of testator pertaining to other properties. If they lose their property, it must be solely because of some proved vice inherent in their title to the property, and because of some settled principle of equity causing them to be seized of the title to the use of plaintiffs. Courts watch the transactions of trustees in handling trust funds- with vigilance and solicitude. They may not speculate off the funds held in a fiduciary capacity, nor otherwise employ them to their individual gain. But in this case we find no proof suffident to sustain plaintiffs’ contentions. The situation O’Day was in was peculiar. He was obliged to use diligence to protect the trust fund. Now, the senior deed of trust of the McElhaneys secured a note to one Mills in addition to his ward. The junior deed of trust secured 0’Day’s debt, as well as the'ward’s. "What principle of natural equity, or written law denied to O’Day the privilege to bid at the foreclosure sale in his own right to protect himself as well as the ward and Mills? We know of none. This, under the facts in proof, is precisely what O ’Day did. He bid more than the ward’s debt. Could it be contended that he could change the character of the trust fund and bid in excess of the ward’s debt and charge the ward with the purchase price? This might be so under extraordinary circumstances appealing to the chancellor as the exercise of a wise discretion; but no such circumstances are shown to exist. The thing 0 ’Day did was to treat the purchase as his own and to account to the ward for the loan; and in such circumstances and under the existing proof, we cannot say he speculated off of his ward in this instance, or used his ward’s money in the purchase. The narration in the trustee’s deed that O’Day paid the purchase price to the trustee is presumptively true. The fact that the McElhaney notes were marked “paid by sale under deed of trust” does not indicate that the ward’s money was used in the purchase. If that indorsement was put on by 0 ’Day or by the trustee, unexplained, it tends to show that the money to pay these notes had been realised by the sale and the notes had been paid by the proceeds of the sale. This conclusion is fortified by the fact that in the final settlement he treats the McElhaney notes as if paid to him and as left in the corpus of the trust estate. The disconnected parts of poorly remembered conversations at the day of sale whereby 0 ’Day is made to say that he is bidding for his ward, etc., are not sufficient to show that he took title for his ward — the rule being that where plaintiff relies for title on raising an implied trust, the proof should be so clear, so unequivocal, so cogent and impelling as to exclude every reasonable doubt from the chancellor’s mind.

Giving force to that rule and attending to the fact that the trustee is dead and that Mr. O’Day is dead, that he was solvent and possessed of large means and handling large sums, that this transaction was never questioned in his life, that he treated the Mint Saloon property as his own and disposed of it specifically by will, that the transaction was not questioned in the proceedings in the Federal court and that the property in question is not specifically described in Mary’s deed to Henry, while other parcels of real estate were so described, we think the demurrer was properly sustained.

In coming to this conclusion we have not overlooked the fact that the McElhaney foreclosure was based on a default in the payment of interest, as well as default in the payment of taxes and insurance. It is sufficient to say that if some of the interest accruing on the McElhaney loan was not accounted for by 0 ’Day in his final settlement, or if he is to be charged with interest for not keeping the funds loaned out at a legal rate, no such questions are involved in the issues of this case, and, therefore, such questions are reserved as open and not precluded by this litigation. Under some circumstances interest should be charged to a trustee; under other circumstances, not; and neither the pleadings nor the proof here require us to go into that question — there being no offer here by plaintiffs to do equity, to repay to 0’Day’s estate the amount invested by John O’Day in the property, and no claim that accrued interest was used toward paying a part of the purchase price.

The judgment sustaining the demurrer and dismissing the bill is affirmed.

All concur, except Woodson, Jnot sitting.


source: Caselaw Access Project

author: WOODSON, J. PEE CUBIAM:

license: Public Domain

text:
    WEIERMUELLER, Appellant, v. SCULLIN.
    In Banc,
    April 29, 1907.
    1. WITNESS: Party to Contract: Other Party Dead. The statute (sec. 4652, R. S. 1899) is an enabling, not a disqualifying, act. It does not disqualify any person to testify because of his interest in the contract, ■whether the other be dead or not. It disqualifies the surviving party only when one of the original parties to the contract is dead, and it does that because the other party is dead. But where one of them has died, his assignee of the claim sued on may testify as to what occurred in regard to the contract after his death, and the other party may contradict that testimony and may give his own explanation of such post-mortem occurrences. [Overruling Curd v. Brown, 148 Mo. 95.]
    2. -: -: ———i: Subsequent Transactions. The statute does not exclude the living party from testifying where his evidence relates to transactions and conversations had with others to which the deceased was not a party and with which he had no connection. Where the suit is based on conversations had by decedent's assignee with defendant and admissions and promises by him, after decedent’s death, defendant, the surviving party, may deny such admissions and explain the transaction, even though the claim grows out of a supposed debt due decedent' and assigned to plaintiff.
    3. -: -: -: Where Administrator is Party. Where the administrator is a party to the action, the surviving party Is disqualified to testify for any purpose until after the will is probated or the administrator is appointed; and much of the confusion attending the statute is due to a failure to observe this arbitrary distinction which it makes.
    Transferred from St. Louis Court of Appeals.
    Affirmed.

      John J. O’Connor for appellant.
    According to the evidence on both sides, the account sued upon represents money received by defendant from Samuel Weiermueller in 1889, and which he promised to repay to Weiermueller. Before payment Weiermueller assigned the debt to his wife and died. Thereafter, defendant made payments on the assigned debt to her, and refused to pay more. This suit is against the said debtor for what she claims to be still due on said debt. Under such circumstances, Weiermueller being dead, it was error to permit defendant to testify to the amount of the indebtedness, or permit him to testify at all over plaintiff’s objections, based upon the ground that Weiermueller, with whom the defendant had the transaction, was dead. He was incompetent to testify in the case for any purpose whatever. Sec. 4652, R. S. 1899; Curd v. Brown, 148 Mo. 91; Wood v. Mathews, 73 Mo. 477; Leeper v. Taylor, 111 Mo. 323; Bagnell v. Bank, 76 Mo. App. 124. Nor could he testify in contradiction of plaintiff’s statements. Curd v. Brown, 148 Mo. 91.

      Scullin & Chopin for respondent.
    Respondent was properly permitted to testify, as a matter of denial, to the real statements made to appellant concerning the transactions with her husband, after appellant had testified as to the purport of such conversations. Wade v. Hardy, 75 Mo. 394; Palmer v. Kellogg, 11 Gray 27; Cronan v. Cotting, 99 Mass. 334; Henry v. Buddecke, 81 Mo. App. 360; Kirton v. Bull, 168 Mo. 622.
   In Division One.

WOODSON, J.

This suit originated in the circuit court of the city of St. Louis, and is based upon an assigned account for the sum of $250, with divers credits thereon aggregating the sum of $162.75, and the balance alleged to be due with the interest to the date of filing the suit amounted to the sum of $246.06.

The answer was a general denial.

The trial was before a jury.

The evidence for the appellant tended to show that she was the widow of Samuel Weiermueller, deceased, and that he assigned the account sued on to her on the 10th day of November, 1892, and died in the following December.

Appellant testified that after the death of her husband she went to see respondent regarding the account, and demanded payment, and he said: “Very well, I will pay you as soon as I am able. ” That was in 1896 or 1897. “I went to see him again, and he said: ‘I will try and give you some on that account my next pay day.; I think it was about the third time [I went] that he gave me some money on account, which was $5,” and that between May 6, 1897, and September 14, 1901, he paid her divers sums of money, aggregating $162.75, and that she kept a memoranda of all the payments and the dates thereof, which she stated in detail. She also testified that he never denied that he owed her the $250, and that she knew nothing about the loan of the money by her husband to respondent.

Over the objections of the appellant, the respondent testified as follows:

Q. What did she [the appellant] say to you when she came to you? A. The first time she came she said, “I understand that you have promised” — in the first place she said that, “she was very hard up,” and said ‘ she did not have any money and that she understood her husband to say that I had promised to pay him back some money he had paid me for those teams,” and I told her that was right; that I had done that. She asked me how much it was and I told her it was $140, and I told her that I had promised him just before he died that I would do that, and that I would just as soon as I was able, and I did do it. I paid her from time to time five dollars until I had it more than paid up — in fact I kept giving her money until she came to me with her husband, and then I told her that that settled it. I wouldn’t pay her any more, that I had more than paid her what I had promised to pay her. I kept an account of the sums I paid her, which was about $160.

He further testified that she never presented any account to him and that he had never promised to pay her any more than $140, and that he had paid her over that amount because - her husband was a particular friend of his and had been in his employ thirteen years, and he wanted to help his widow along, and that when she married again he stopped the payments^.

Appellant objected to respondent testifying in the case, because the other party to the contract in issue and on trial was dead, which objection was by the court overruled, and appellant duly excepted.

That was all the evidence in the case, and thereupon the court instructed the jury upon two theories of the case, presented by the evidence, to which action of the court appellant objected and excepted.

The jury found the issue for the respondent. "Whereupon appellant filed her motion for a new trial, which was overruled, and she duly prosecuted her appeal to the St. Louis Court of Appeals, where the judgment of the circuit court was affirmed by a divided court, and the dissenting judge certified the cause to this court because, in his judgment, the opinion of that court was in conflict with the decisions of this court, namely: Kersey v. O’Day, 173 Mo. 560, and Curd v. Brown, 148 Mo. 82.

There is but one question presented by this record and that is, was the respondent a competent witness to testify to the conversations and transactions mentioned in his evidence?

It will be seen from reading the evidence that there was no evidence whatever that respondent was indebted to her husband, except her testimony, which tended to show that he at least tacitly admitted he owed the debt, and respondent’s own testimony to the effect that he told her that he had promised her husband to pay him back some money the deceased had paid him for teams.

There has been some conflict between the decisions of this court upon the question here presented and some confusion has resulted in consequence thereof, in the admission and rejection of evidence. But it seems that the confusion has largely grown out of the fact that the nature and purpose of the statute governing such evidence has not at all times been kept in view.

Section 4652, Revised Statutes 1899, provides that, “No person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility: Provided, that in actions where one of the original parties, to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in the favor of any party to the action claiming under him, and no party to such suit or proceeding whose right of action or defense is derived to him from one who is, or if living would be, subject to the foregoing disqualification, shall be admitted to testify in his own favor, except as in this section is provided, and where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator.”

This statute is an enabling and not a disabling act. [Bates v. Forcht, 89 Mo. 121.]

The common law rejected the testimony of all persons whose pecuniary interest was directly involved in the matter in issue and on trial. [1 Greenleaf, Evid. (16 Ed.), secs. 327 and 328b.]

The many hardships imposed, and the miscarriage of justice was so frequent, under that rule of evidence, the Legislature was induced to abolish it, and to provide that no person should be disqualified from testifying as a witness on account of any interest he might have in the result of the suit. This provision ,of the section is absolute and not conditional. It means just what it says, that “no person shall be disqualified as a witness in any civil suit or proceeding at law or in equity by reason of his interest” in the result of the suit. The plain grammatical construction and clear meaning of the provision is, that in all civil causes interest does not disqualify anyone from testifying as a witness therein.

It is true, the same section of the statute in another provision provides that “in actions where one of the .original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify in his own favor, or in favor of any party to the action claiming under him.”

But the disqualification pronounced by the provision of the section last quoted is not because of the interest of the witness offered, but because, in the language of the statute, the other party to the contract or cause of action in issue and on trial is dead, or is shown to be insane.

So it is seen, it is the death or ins amity of one of the original parties to the contract or cause of action that closes the mouth of the .other party to the contract, and not Ms interest that disqualifies him as a witness.

The sole purpose of the proviso contained in said section was to silence by law one of the parties to a litigated obligation where death or insanity has silenced the other. [1 Whart., Evid., sec. 466; Meier v. Thieman, 90 Mo. 443.]

In the case at bar, all the testimony regarding the indebtedness of respondent to appellant’s husband consisted solely of conversations which took place, according to her testimony, between herself and the respondent. Without those alleged admissions there was not a scintilla of evidence that respondent owed deceased anything. The trial court permitted respondent, over appellant’s objection, to contradict her testimony regarding the admissions alleged to have been made by him to her regarding the alleged indebtedness, and permitted him to state what the real conversation was that took place between them. The appellant contends that the action of the court in allowing the respondent to testify was reversible error, because the other party to the contract in issue and on trial was dead, and that under said section 4652 he was not a competent witness for any purpose. All the conversations and transactions testified to by both the appellant and respondent took place between themselves after the death of Weiermueller, and both of them were still living at the time he testified.

This court has many times held that the statute does not exclude the living party from testifying where the evidence relates to transactions and conversations had with others to which the deceased was not a party and with which he had no connection and of which he had no knowledge. [Kirton v. Bull, 168 Mo. 622; Nugent v. Curran, 77 Mo. 323; Eyermann v. Piron, 151 Mo. 107; Banking House v. Rood, 132 Mo. 256; Orr v. Rode, 101 Mo. 387; Wade v. Hardy, 75 Mo. 394.]

The rule announced in these cases is peculiarity applicable to the facts of this case.

There are a few cases in this State which sustain the contention of the appellant, and base their conclusions upon the erroneous assumption that section 4652 leaves the living party to a contract or cause of action in issue and on trial, when the other party thereto is dead, just where the common law placed him, that is, incompetent on account of interest to testify for any purpose. The case of Curd v. Brown, 148 Mo. 95, so holds.

That is clearly an erroneous conception of the meaning' of that section. No witness was disqualified by the common law from testifying because of the death or insanity of the other party to the contract or cause of action, but was disqualified solely on account of his interest in the result of the suit; and as that statute removed the interest qualification, he had the absolute right to testify to all transactions and contracts had with others, to which the deceased was not a party and had no knowledge. [Kirton v. Bull, 168 Mo. 622.]

Speaking of a similar statute, Judge Sherwood well said: “And being itself a remedial section, giving a testifying capacity where none existed before, and all these sections forming but one system, and being construed together as but one statute, they are to be construed liberally; are to receive an equitable interpretation; whereby the letter of the act or section will be sometimes enlarged or sometimes restrained so as the more effectually to meet the beneficial end in view, and prevent a failure of the remedy.” [Ex parte Marmaduke, 91 Mo. l. c. 257.]

Judge Burgess, in construing section 8922, Revised Statutes 1889, which is the same as section 4656, Revised Statutes 1899, quoted the language of Judge Sherwood with approval. [Cramer v. Hurt, 154 Mo. l. c. 118-119.]

The same liberal construction should be given to section 4652, because it is an enabling statute. [Bates v. Forcht, 89 Mo. 121.]

It should be borne in mind that respondent did not pretend to state what were the terms of the contract between himself and the deceased (nor did she for that matter) nor anything that transpired between them. He simply contradicted her evidence and stated what the conversation was that took place between them.

II. The failure of the courts to draw the distinction (though arbitrary as it is) between the rule which is applicable to the surviving party to the contract, where an administrator is a party to the action, and the rule above stated has added much to the confusion involved in the consideration of these questions. In the former the statute expressly disqualifies the surviving party as a witness for all purposes until the will is probated or the executor or administrator has been appointed, while under the latter there is no such disqualification.

In the language of Judge Fox in a recent case before this court, “Speaking for myself, it is difficult to see the reason for this strict rule. What difference does it make whether the conversation was before or after the grant of letters of administration?” [Kersey v. O’Day, 173 Mo. l. c. 570.]

There is no reason for the rule except the cold mandate of the statute, and with that this court has nothing to do except to give it force and effect as we find it when presented to us.

It follows from what has been said that the rule announced in the case of Curd v. Brown, 148 Mo. 82, is an erroneous statement of the law, and that case is hereby overruled.

The judgment of the St. Louis Court of Appeals is affirmed.

All concur, but believe tbe question involved is of sufficient importance to bave tbe case transferred to tbe Court in Banc, and it is so ordered.

In Bano.

PEE CUBIAM:

Upon a rebearing of tbis cause by tbe Court in Banc, tbe opinion of Woodson, J., in Division No. One, is adopted, and tbe judgment of tbe St. Louis Court of Appeals, affirming tbe judgment of tbe circuit court, is affirmed.


author: BRACE, P. J. PER CURIAM:

text:
    SARAH McNULTY v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    In Banc,
    April 29, 1907.

    1. NEGLIGENCE: Failure to Ring Bell: Burden: Instruction. Where one act of negligence charged was failure to ring the hell of the engine which struck plaintiff’s child at the crossing, the fact that that failure was the cause of the child’s death is essential to plaintiff’s recovery for that act of negligence, hut by the statute plaintiff is relieved of the burden of proving that fact, and the burden of disproving it is cast on defendant. Hence, an instruction for defendant which tells the jury “that "'before they can find for plaintiff they must believe that the plaintiff has proven the facts in support of her case by a preponderance of the evidence,” is erroneous, because it not only places the burden of proving that fact on plaintiff, but requires her to prove it by the preponderance of the evidence.
    2. —■ ■: -: Demurrer to Evidence. Where there is evidence tending to prove that the bell was not rung, and plaintiff’s suit for damages is based on defendant’s failure to ring . the bell, no demurrer to the evidence should be sustained.
    Appeal from St. Louis County Circuit Court. — Hon. John W. McElhinney, Judge.

      Affirmed.

      L. F. Parker and Woodruff <& Mann for appellant.
    The instruction complained of was not only proper hut it would have been reversible error for the court to have refused it to defendant. That the plaintiff must make out his ease by a preponderance, that is, the greater weight of the evidence, is fundamental; is the law of this State and always has been. The doctrine that a prima-facie case shifts the burden of proof does not in any sense impair or infringe upon the rule. Murray v. Railroad, 101 Mo.- 236; Schaefer v. Railroad, 128 Mo. 64; Casey v. Donovan, 65 Mo. App. 527; Marshall Livery Co. v. McKelvy, 55 Mo. App. 240; Clifton v. Sparks, 25 Mo. App. 383; Jones v. Durham, 94 Mo. App. 51.

      A. B. Taylor for respondent.
    As will be seen by section 1102, Revised Statutes 1899, the simple fact that a person on a crossing is struck and injured by an engine being run in violation of that statute makes a prima-facie case of liability against the railroad. The offending instruction, for •giving’ which the trial court granted a new trial, takes no cognizance of the effect of the statute, but requires the plaintiff to prove all the facts to support her case by a preponderance of the evidence. Whereas, after she had proven that her child was killed on the crossing by appellant’s engine running without bell, she was not required to prove by a preponderance of the evidence that the running of the engine over the crossing without the bell was the proximate cause of the child’s death. The statute itself then puts on the railroad the burden of proving that such violation of the statute was not the cause of the death of the child, and, on this issue, the railroad -company had to produce the preponderance of the evidence, and its failure to do so would make it liable. Huckshold v. Railroad, 90 Mo. 556; Crumpley v. Railroad, 111 Mo. App. 157; Barr v. Railroad, 30 Mo. App. 256.

      Note. — Decided November 21, 1906, in Division One. Transferred to Court in Bane, reheard, and divisional opinion adopted April 29, 1907.

   In Division One.

BRACE, P. J.

This is an action by the mother to recover damages for the death of her minor child, a daughter, aged about eight years and seven months, who on the 15th of May, 1890, was killed by one of the defendant's engines at the crossing of defendant's tracks over Theresa avenue, in the city of St. Louis. The verdict was for the defendant. Motion for a new trial was sustained, and the defendant appealed. The ground specified by the court upon which the motion for a new trial was sustained is thus stated by the trial judge:

“One ground of negligence charged in the petition as a cause of the death of plaintiff’s, child, was the alleged failure to sound the bell upon the engine, as required by the statute. This charge was supported by the evidence, and was submitted to the jury in plaintiff’s instructions. To make out this charge, it was necessary to show that the failure to ring the bell occurred and that it caused the child’s death.
“In defendant’s first instruction, the jury were told that the plaintiff must prove ‘the facts in support of her case’ by a preponderance or greater weight of the evidence. This would require such proof of the alleged fact that the failure to ring the bell was the cause of the child’s death.
“The effect of the statute, section 1102, R. S. 1899, adopted in 1881, has been to change the law in this respect, so as to make a prima-facie case by proof of the failure to ring the bell accompanied by an injury at the crossing. There need be no proof that the failure caused the injury. The law supplies that proof, and easts the burden upon the defendant to show that the failure to ring the bell was not the cause of the injury. [Huckshold v. Railroad, 90 Mo. 554, 555-56; Crumpley v. Railroad, 111 Mo. 152, 157; Lane v. Railroad, 132 Mo. 4, 28; Barr v. Railroad, 30 Mo. App. 248, 255-56.]
“It follows that defendant’s instruction was erroneous. For this reason the motion for a new trial is sustained.”

The instruction referred to in the statement is as follows:

‘ ‘ The court instructs the jury that before they can find for the plaintiff they must believe that the plaintiff has proven the facts in support of her case by a preponderance, that is, by a greater weight of the evidence, and unless she has done so then the verdict should be for the defendant.”

One act of negligence charged in the petition was failure to ring the bell, as required by the statute. The fact that the failure to ring the bell was the cause of the death of the deceased was a fact essential to the recovery by plaintiff for this act of negligence. By the statute (R. S. 1899, sec. 1102), the plaintiff was relieved of the burden of proving that fact and the burden of disproving it was cast upon the defendant. But, this instruction, in effect, not only imposed the burden of proving that fact upon the plaintiff but of proving it by a preponderance of the evidence. This was error, for which the new trial should have been granted. And the action of the court in so doing is abundantly supported by the authorities cited by the learned judge, as well as by a very recent case decided by this court at the October Term, 1905, Green v. Railroad, 192 Mo. 131-143, in which it was said by Valliant, J.:

“The statute requiring the signal by bell or whistle was the same prior to 1881 that it is now except in its last clause, which then was in these words: ‘and said corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect.’ [Sec. 806, R. S. 1879.] But in 1881 the section was amended by striking out these words and inserting in lieu of them these words: ‘ and said corporation shall also be liable for all damages hereafter sustained at such crossing when such bell shall not be rung or such whistle sounded as required hy this section, provided, however, that nothing herein contained shall preclude the corporation sued from showing that the failure to ring such bell or sound such whistle was not the cause of such injury ’ (Laws 1881, p. 79), and in that form the statute appears in our present revision (R. S. 1899, sec. 1102). The purpose of that amendment was, as is rightly contended by the plaintiff’s counsel, to make the proof of the accident and the proof of failure to give the required signal, .sufficient for a prima-facie case and to throw the burden of proving that the accident was not the result of the failure to give the signal on the defendant. It was so decided in Huckshold v. Railroad, 90 Mo. 548.”

This disposes of the case.

In answer to the suggestion that defendant’s demurrer to the evidence ought to have been sustained, it is only necessary to say that there was evidence tending to prove that the bell was not rung, and that the argument in support of the suggestion goes to the weight of the evidence, with which we have nothing to do.

The order of the circuit court granting a new trial is affirmed, and the cause remanded to that court to be proceeded with accordingly.

All concur.

In Bang.

PER CURIAM:

Upon a rehearing of this cause by the Court in Banc, the opinion of Brace, P. J., in Division No. One, is adopted and tlie judgment of the circuit court in granting a new trial affirmed.

Gantt, G. J., Burgess, Valliant, Lamm and Woodson, JJ., concurring; Fox and Graves, JJ., dissenting.