Plaintiffs in error, on the thirteenth day of January, 1933, filed their petition in this court praying for a writ of error to the Circuit Court of Adair County, Missouri, directing that a transcript of the judgment and all proceedings lately therefor had in said court in a cause therein entitled "In the Matter of the Trust Estate of Mary M. Parker and Mary Katherine Fortney under the Last Will and Testament of Albert G. Parker, Deceased, James L. Clark, Trustee" be transmitted to this court for review and for the correction of errors in the proceedings therein and in the judgment. Such petition on said date being granted, a writ of error was ordered and issued in compliance with which a complete transcript of such record, duly certified by the clerk of said Adair county circuit court, has been filed in this court, the salient features of which appear in the statement following herein.
It appears that, lately, prior to the tenth day of July, 1929, one Albert G. Parker of Adair county, Missouri, died testate; that, by the terms of his will, he gave to his widow, Mary M. Parker, the
use of all the property of which he died seized for and during her natural life and, at her death, all of such property remaining he gave to his daughter, Mary Katherine Fortney; that said will was proved and admitted to probate in the Probate Court of Adair County, Missouri, and, by the terms thereof, Charles S. Davis was appointed executor of the same; that the said Davis, under said appointment, duly qualified as such executor and, upon the administration of said estate by final settlement filed at the close of said administration, disclosed a balance of $3128.39 due from him as such executor to said estate at such time. On the tenth day of July, 1929, the said Charles S. Davis appeared in the Circuit Court of Adair County, Missouri, and filed his petition, stating the facts aforesaid and asking for his appointment as trustee to take charge of, handle, and control said money under the direction of the court. Such petition being heard on said date by the court, the court thereupon entered an order appointing the said Charles S. Davis trustee of said estate and for the said Mary M. Parker and Mary Katherine Fortney, the beneficiaries thereof under said will. Thereupon, the said Charles S. Davis, as principal, with the National Surety Company, as surety, entered into a bond to the State of Missouri in the sum of $6000 for the faithful performance of his trust by the said Charles S. Davis and for the accounting for and payment over of said trust fund in the said sum of $3218.39. So far as the records of said court disclose, said Charles S. Davis performed no further act as such trustee. It does not appear that he ever filed an inventory of said estate or any statement or settlement showing what, if any, part of the said sum of $3128.39 had been taken in charge by him as trustee or what property, if any, he held as such. In December, 1930, it appears that said Davis died; and, thereafter, on the twenty-second day of December, 1930, such matter being called to the attention of the court — that the said Charles S. Davis was dead — the court, by its order, appointed James L. Clark as trustee of said estate as his successor and fixed his bond at the sum of $6000, which said bond was thereupon executed by the said Clark with the Maryland Casualty Company as surety and duly approved by the court on January 9, 1931. Thereafter, on the fourteenth day of March, 1931, said James L. Clark, as such trustee, filed in said circuit court his motion for a citation against one E.O. Beal, administrator cumtestamento annexo of the estate of the said Charles S. Davis, deceased, alleging, among other things, the due appointment of said E.O. Beal as such administrator by the Probate Court of Adair County, Missouri, and his qualification as such administrator under such appointment and his continued action in such capacity and alleging, further, that the said Charles S. Davis, as trustee of the trust estate, had never made and filed any settlement of his trust with the court during his life and that, since his death, the said E.O. Beal, as his administrator, had never made or filed any settlement for him
as such trustee. The prayer of the motion was for an order citing said E.O. Beal, administrator as aforesaid, to be and appear in the court on a day to be named in said order and to settle the account of said Charles S. Davis as trustee and to pay over to the movant trustee, as successor to the said Davis, the funds and property so held by him and due to said estate from him and for such other and further orders as the court might find due and proper. On the fourth day of March, 1931, at the regular January, 1931, term of the court, said petition was heard and the following order made:
"Now, on this 4th day of March, 1931, comes the trustee herein and files his petition and motion for an order citing E.O. Beal, administrator cum testamento annexo of the estate of Charles S. Davis, deceased, to be and appear in this court on a day to be named and to make settlement of the accounts of said Charles S. Davis with this trustee, and it appearing to the court that E.O. Beal is the duly appointed, qualified and acting administratorcum testamento annexo of the estate of Charles S. Davis, deceased, it is by the court ordered that such administrator be and appear in this court on or before the 31st day of March, 1931, and that he file herein settlement of accounts of Charles S. Davis with this trust and estate and that he deliver to the successor of Charles S. Davis, the said James L. Clark, trustee, the property and money belonging to said trust and estate, and it is further by the court ordered that a certified copy of this order and record be delivered to and served upon said E.O. Beal more than twenty days prior to the said 31st day of March, 1931, and that a copy be delivered to the National Surety Company, the surety on the bond of said Charles S. Davis."
Thereafter, on the thirty-first day of March, 1931, at the same January term of court, the said E.O. Beal, successor of the said Charles S. Davis as trustee of said estate, was granted leave to file exceptions to said settlement; and the cause was continued to April 13, 1931. The settlement so filed by the said E.O. Beal was as follows:
"Settlement.
"Now, at this day, comes E.O. Beal, administrator with will annexed of the estate of Charles S. Davis, and presents statement of account of and for said Charles S. Davis as trustee of the estate of Mary Parker and Katherine Fortney under the will of Albert G. Parker, deceased, and vouchers for his settlement and report are as follows:
"No. of Debit Credit
Voucher Dols. Cts. Dols. Cts.
"The records of the Probate Court
of Adair County, Missouri, show final
settlement filed and approved by the
court the 24th day of May, 1929, made
by Charles S. Davis, executor of the
estate of Albert G. Parker, from which
settlement there is found to be in the
hands of said executor and belonging
to said estate the sum of .... $3128.39.
"I find in the files of said court, receipt
of which following is copy:
"Voucher No. May 29, 1929.
"Received of Charles S. Davis, executor
of the estate of Albert G.
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Plaintiffs in error, on the thirteenth day of January, 1933, filed their petition in this court praying for a writ of error to the Circuit Court of Adair County, Missouri, directing that a transcript of the judgment and all proceedings lately therefor had in said court in a cause therein entitled "In the Matter of the Trust Estate of Mary M. Parker and Mary Katherine Fortney under the Last Will and Testament of Albert G. Parker, Deceased, James L. Clark, Trustee" be transmitted to this court for review and for the correction of errors in the proceedings therein and in the judgment. Such petition on said date being granted, a writ of error was ordered and issued in compliance with which a complete transcript of such record, duly certified by the clerk of said Adair county circuit court, has been filed in this court, the salient features of which appear in the statement following herein.
It appears that, lately, prior to the tenth day of July, 1929, one Albert G. Parker of Adair county, Missouri, died testate; that, by the terms of his will, he gave to his widow, Mary M. Parker, the
use of all the property of which he died seized for and during her natural life and, at her death, all of such property remaining he gave to his daughter, Mary Katherine Fortney; that said will was proved and admitted to probate in the Probate Court of Adair County, Missouri, and, by the terms thereof, Charles S. Davis was appointed executor of the same; that the said Davis, under said appointment, duly qualified as such executor and, upon the administration of said estate by final settlement filed at the close of said administration, disclosed a balance of $3128.39 due from him as such executor to said estate at such time. On the tenth day of July, 1929, the said Charles S. Davis appeared in the Circuit Court of Adair County, Missouri, and filed his petition, stating the facts aforesaid and asking for his appointment as trustee to take charge of, handle, and control said money under the direction of the court. Such petition being heard on said date by the court, the court thereupon entered an order appointing the said Charles S. Davis trustee of said estate and for the said Mary M. Parker and Mary Katherine Fortney, the beneficiaries thereof under said will. Thereupon, the said Charles S. Davis, as principal, with the National Surety Company, as surety, entered into a bond to the State of Missouri in the sum of $6000 for the faithful performance of his trust by the said Charles S. Davis and for the accounting for and payment over of said trust fund in the said sum of $3218.39. So far as the records of said court disclose, said Charles S. Davis performed no further act as such trustee. It does not appear that he ever filed an inventory of said estate or any statement or settlement showing what, if any, part of the said sum of $3128.39 had been taken in charge by him as trustee or what property, if any, he held as such. In December, 1930, it appears that said Davis died; and, thereafter, on the twenty-second day of December, 1930, such matter being called to the attention of the court — that the said Charles S. Davis was dead — the court, by its order, appointed James L. Clark as trustee of said estate as his successor and fixed his bond at the sum of $6000, which said bond was thereupon executed by the said Clark with the Maryland Casualty Company as surety and duly approved by the court on January 9, 1931. Thereafter, on the fourteenth day of March, 1931, said James L. Clark, as such trustee, filed in said circuit court his motion for a citation against one E.O. Beal, administrator cumtestamento annexo of the estate of the said Charles S. Davis, deceased, alleging, among other things, the due appointment of said E.O. Beal as such administrator by the Probate Court of Adair County, Missouri, and his qualification as such administrator under such appointment and his continued action in such capacity and alleging, further, that the said Charles S. Davis, as trustee of the trust estate, had never made and filed any settlement of his trust with the court during his life and that, since his death, the said E.O. Beal, as his administrator, had never made or filed any settlement for him
as such trustee. The prayer of the motion was for an order citing said E.O. Beal, administrator as aforesaid, to be and appear in the court on a day to be named in said order and to settle the account of said Charles S. Davis as trustee and to pay over to the movant trustee, as successor to the said Davis, the funds and property so held by him and due to said estate from him and for such other and further orders as the court might find due and proper. On the fourth day of March, 1931, at the regular January, 1931, term of the court, said petition was heard and the following order made:
"Now, on this 4th day of March, 1931, comes the trustee herein and files his petition and motion for an order citing E.O. Beal, administrator cum testamento annexo of the estate of Charles S. Davis, deceased, to be and appear in this court on a day to be named and to make settlement of the accounts of said Charles S. Davis with this trustee, and it appearing to the court that E.O. Beal is the duly appointed, qualified and acting administratorcum testamento annexo of the estate of Charles S. Davis, deceased, it is by the court ordered that such administrator be and appear in this court on or before the 31st day of March, 1931, and that he file herein settlement of accounts of Charles S. Davis with this trust and estate and that he deliver to the successor of Charles S. Davis, the said James L. Clark, trustee, the property and money belonging to said trust and estate, and it is further by the court ordered that a certified copy of this order and record be delivered to and served upon said E.O. Beal more than twenty days prior to the said 31st day of March, 1931, and that a copy be delivered to the National Surety Company, the surety on the bond of said Charles S. Davis."
Thereafter, on the thirty-first day of March, 1931, at the same January term of court, the said E.O. Beal, successor of the said Charles S. Davis as trustee of said estate, was granted leave to file exceptions to said settlement; and the cause was continued to April 13, 1931. The settlement so filed by the said E.O. Beal was as follows:
"Settlement.
"Now, at this day, comes E.O. Beal, administrator with will annexed of the estate of Charles S. Davis, and presents statement of account of and for said Charles S. Davis as trustee of the estate of Mary Parker and Katherine Fortney under the will of Albert G. Parker, deceased, and vouchers for his settlement and report are as follows:
"No. of Debit Credit
Voucher Dols. Cts. Dols. Cts.
"The records of the Probate Court
of Adair County, Missouri, show final
settlement filed and approved by the
court the 24th day of May, 1929, made
by Charles S. Davis, executor of the
estate of Albert G. Parker, from which
settlement there is found to be in the
hands of said executor and belonging
to said estate the sum of .... $3128.39.
"I find in the files of said court, receipt
of which following is copy:
"Voucher No. May 29, 1929.
"Received of Charles S. Davis, executor
of the estate of Albert G. Parker,
the sum of thirty-one hundred
twenty-eight 39 dollars the same
being payment in full in settlement
of amount due from estate of A.G.
Parker.
"3128.39.
"CHARLES S. DAVIS, Trustee
"Albert G. Parker estate.
"I have been unable to find any record
of the order of discharge of said
Charles S. Davis as executor of the estate
of Albert G. Parker.
"The records of the now closed Bank
of Brashear, Brashear, Missouri, show
the following account.
"1930 `C.S. Davis, Trustee, Albert G. Parker
estate'
"Apr. 29 deposit 62.56
"Apr. 28 Check to Mrs. A.G. Parker 62.56
"Pd. Apr. 29
"The records of said Bank of Brashear
further show a balance on deposit
in said bank to the credit of
Charles S. Davis, executor of Albert G.
Parker Estate 242.29
"I have been unable to find any
other or further book accounts of this
estate.
"E.O. Beal, the above administrator with will annexed of the estate of Charles S. Davis, being duly sworn on his oath says that the facts stated herein are true according to his best information and belief.
"Subscribed and sworn to before me this 31st day of March, 1931.
"(Seal) "EVELYN BARCLAY, "Circuit Clerk."
On the sixth day of April, 1931, James L. Clark, trustee, defendant in error, filed his exceptions to said settlement and, thereafter, on the sixteenth day of May, 1932, at the regular May term of the court, by leave of the court, filed his amended exceptions upon which, later being heard on the thirtieth day of May, 1932, the court rendered the judgment herein complained of. The amended exceptions so filed were as follows:
"Now comes the trustee herein and objects to the settlement and report filed in this cause on the 31st day of March, 1931, by E.O. Beal, administrator with the will annexed of the estate of Charles S. Davis, deceased, the former trustee in this trust and for grounds of his exceptions say that the purported settlement is incomplete and insufficient in law; that said settlement does not charge the former trustee herein with all items for which he should stand charged and that the purported items of credit in said settlement are illegal; that the said Charles S. Davis, as trustee, herein received, on the 24th day of May, 1929, the sum of $3,128.39 and that he or the said E.O. Beal, as administrator, has wholly failed to account for any of the money so received by him or for the interest thereon from and after said 24th day of May, 1929.
"Wherefore, this trustee prays that this court, by proper order, ascertain the amount of money in the hands of said trustee, Charles S. Davis, at the time of his death or that came into his hands and remained unaccounted for in his representative capacity at the time of his death or for which he, under the terms of his bond made and filed herein, became and was liable; that the court ascertain said amount, render judgment and decree that there is due from said estate the amount so found to be due together with interest thereon from the day the same was received by said trustee and that the court render judgment against the surety on the bond of said Charles S. Davis, to-wit, the National Surety Company, and order execution therefor to issue."
The judgment of the court so rendered, of which plaintiffs in error complain, is as follows:
"Now on this 30th day of May, 1932, the amended motion and petition of James L. Clark, the trustee of this estate, asking that the court ascertain the amount of money in the hands of Charles S. Davis, former trustee of this trust at the time of his death, or that came into his hands and remained unaccounted for by him in his representative capacity at the time of his death, or for which under his bond made and filed herein with the National Surety Company as surety he became and was liable, and that the court after ascertaining said amount render judgment therefor and enter its decree that there is due from said trustee and from his legal representative the amount so ascertained, and that the court render judgment against the National Surety Company, the surety on the bond of the said Charles S. Davis,
for the amount so found; again coming on before the court, comes James L. Clark, the trustee, in his own proper person and by his attorneys and this matter having previously, on the 16th day of May, 1932, been taken up by the court and considered at which time E.O. Beal, administrator with the will annexed of the estate of Charles S. Davis, deceased, appeared in person and by his attorney and National Surety Company, as surety, on the bond of Charles S. Davis, former trustee, appeared by James M. Moore, its attorney, who orally stated that National Surety Company appeared only for the purpose of questioning the jurisdiction of the court to render any judgment against it as surety upon the bond of the said Charles S. Davis, and it appearing that E.O. Beal, administrator with the will annexed of the estate of Charles S. Davis in compliance with the order of this court made and entered of record in this cause on the 4th day of March, 1931, did on the 31st day of March, 1931, file herein a settlement of the accounts of Charles S. Davis with this trust and this estate and it further appearing to the court that National Surety Company, surety on the bond of Charles S. Davis, as trustee, was duly served with notice of this inquiry and hearing and that the appearance of its said attorney James M. Moore, hereinabove referred to, was in response to such notice and the court having heard all of the evidence in the cause and being fully advised in the premises finds Charles S. Davis, as trustee, on or about the ____ day of June, 1929, received as trust funds of this estate the sum of $3,128.39, and the court finds that the said Charles S. Davis, as trustee of this estate made and executed a written instrument acknowledging receipt as trustee of the aforesaid sum of $3,128.39, on said date; and that by virtue of the terms of the bond made and filed in this cause by the said Charles S. Davis, as principal and by the National Surety Company as his surety the said Charles S. Davis at the time of his death was liable to account to his successor as trustee for the full sum of $3,128.39, together with six per cent interest thereon from and after the 21st day of June, 1929, and the said National Surety Company as surety on the bond of the said Charles S. Davis was liable for the payment of the amount for which the said Charles S. Davis was so liable to account in the event of a default on behalf of the said Charles S. Davis and the court further finds that the said Charles S. Davis at the time of his death did not have said funds or any part thereof on hands, or in his possession; and that all of said funds were by the said Charles S. Davis wasted and lost.
"It is, therefore, by the court determined, ascertained, adjudged and decreed that there came into the hands of Charles S. Davis, trustee of this trust, on the ____ day of June, 1929, the total sum of $3,128.39; that at the time of the death of Charles S. Davis, there remained in his hands as trustee unaccounted for by him in his representative capacity the said sum of $3,128.39 with six per cent interest
from and after the date the same was so received by him; that by the terms of his bond as trustee, made and filed in this cause with National Surety Company, as surety, the said Charles S. Davis was liable to account to his successor trustee for the sum of $3,128.39 as having come into his hands on the ____ day of June, 1929, and to account for interest on that sum from that date until the date of his death and the said National Surety Company as surety on his bond was liable to pay said amount in the event of a default on behalf of the principal of said bond; and the said James L. Clark, trustee, is by the court directed to require of and recover from the administrator of the estate of the deceased Charles S. Davis, and the surety on his bond as such trustee the sum of $3,408.55 with six per cent interest on said sum from and after the date of the death of the said Charles S. Davis until paid."