Church v. Church

Missouri Court of Appeals

Church v. Church

73 Mo. App. 421, 1898 Mo. App. LEXIS 79

CourtMissouri Court of Appeals

DecidedJanuary 24, 1898

StatusPublished

Cited by3 cases

This text of 73 Mo. App. 421 (Church v. Church) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Church v. Church, 73 Mo. App. 421, 1898 Mo. App. LEXIS 79 (Mo. Ct. App. 1898).

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Opinion

Ellison, J.

This action was instituted by plaintiff filing her bill in equity in the circuit court against defendant as the executor of the estate of plaintiff’s deceased husband. The circuit court after hearing the evidence dismissed the bill and rendered judgment for defendant.

Plaintiff, prior to her marriage to her deceased husband was the owner of a lot of personal property. She stated in her bill that her said husband, during the time of their marriage, converted said property to his own use without her written assent or any other author[424]*424ity. She further stated that she had no remedy at law and asked to have the value of said property made a charge against said estate.

Madm^ist7a0t“n”: equíty\Slon' Atfcet“If Klo^e ing evidence: in-

In our opinion the court was justified in dismissing plaintiff’s bill on the ground that she had a full remedy at law. She could have presented an ordinary claim for the amount alleged to be due her to the probate court for allowance against the estate. Hoffman v. Hoffman, 126 Mo. 486; Todd v. Terry, 26 Mo. App. 598. It is true that one having a claim against an estate may establish it, in the first instance, by a judgment in the circuit court, but that fact does not aid the plaintiff since, on a demand at law, she has chosen the equity side of the court.

If, however, we should treat the action as one at law, it would still not avail plaintiff. The trial was before the court without a jury and no instructions were asked. There was evi-deuce tending to support the defense made by the defendant for the estate and hence, under the well recognized rule in such cases, we are not authorized to disturb the result.

The judgment will be affirmed.

All concur.

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Ellison, J.

This action was instituted by plaintiff filing her bill in equity in the circuit court against defendant as the executor of the estate of plaintiff’s deceased husband. The circuit court after hearing the evidence dismissed the bill and rendered judgment for defendant.

Plaintiff, prior to her marriage to her deceased husband was the owner of a lot of personal property. She stated in her bill that her said husband, during the time of their marriage, converted said property to his own use without her written assent or any other author[424]*424ity. She further stated that she had no remedy at law and asked to have the value of said property made a charge against said estate.

Madm^ist7a0t“n”: equíty\Slon' Atfcet“If Klo^e ing evidence: in-

In our opinion the court was justified in dismissing plaintiff’s bill on the ground that she had a full remedy at law. She could have presented an ordinary claim for the amount alleged to be due her to the probate court for allowance against the estate. Hoffman v. Hoffman, 126 Mo. 486; Todd v. Terry, 26 Mo. App. 598. It is true that one having a claim against an estate may establish it, in the first instance, by a judgment in the circuit court, but that fact does not aid the plaintiff since, on a demand at law, she has chosen the equity side of the court.

If, however, we should treat the action as one at law, it would still not avail plaintiff. The trial was before the court without a jury and no instructions were asked. There was evi-deuce tending to support the defense made by the defendant for the estate and hence, under the well recognized rule in such cases, we are not authorized to disturb the result.

The judgment will be affirmed.

All concur.

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73 Mo. App. 421, 1898 Mo. App. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/church-v-church-moctapp-1898.

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