This is an original proceeding in mandamus to compel the respondent, the judge of the Circuit Court of Cass County, Missouri, to set aside an order and judgment sustaining the defendants' plea to the jurisdiction of respondent over the persons of the defendants, and dismissing the case wherein this relator is plaintiff and J. Clarence Fry and Robert W. Pringle, the executors of the estate of George H. Nute, deceased, and J. Clarence Fry and Esther M. Fry, his wife, Robert W. Pringle and Georgia Pringle, his wife, Louise Haines, Mina Loersch and Walter Loersch, her husband, Clara A. Nute, the Town of Wolfboro, Carroll County in the State of New Hampshire, the George H. Nettleton Home for Aged Women in Kansas City, Jackson County, Missouri, and the Children's Mercy Hospital located in Kansas City, Jackson County, Missouri, are defendants.
That cause of action was instituted in the Circuit Court of Cass County by the relator as plaintiff and the petition in substance stated that William T. Nute, Sr., was a resident of Jackson County, Missouri, and died on September 13, 1911, and that he left surviving him this relator as his only child and sole heir at law, and Hazel H. Nute, his wife, who was the mother of this relator. At the time of his death, and for many years prior to it, W.H. Nute, Sr., was in partnership with George H. Nute, under the firm name and style of "Nute Brothers" and engaged in the business of livestock brokers, in Kansas City, Missouri; that the partnership business, at the time of the death of William T. Nute, Sr., was very prosperous and paying high profits and returns on the capital investment, and that the good will of the said business was very valuable. The petition also stated that William T. Nute, Sr., and George H. Nute were brothers of the half-blood; that at the time of William T. Nute's death, the relator was a minor having been born on December 21, 1909; that on or about October 11, 1911, while relator's mother, Hazel H. Nute, was acting as natural guardian for the relator, the relator having no legal guardian, for and in his behalf entered into a contract not in writing wherein the said George H. Nute agreed to act as the legal guardian of the estate of the relator during the relator's minority, and that his share and interest in the estate of William T. Nute, Sr., deceased, including the share in the estate, should be collected, retained, cared for, controlled, managed, and used in said business as long as relator remained a minor; that in consideration thereof George
H. Nute agreed to allow interest on the amount of relator's estate, so used by George H. Nute, at the rate of 6 per cent per annum; and that when the relator should arrive at his majority, George H. Nute would turn over all principal remaining in his hands to this relator. It was further agreed that George H. Nute, in consideration of the benefits by him to be derived by the use of relator's property in the business, would pay to the relator the sum of $25,000 at the time he became of age, and that he would make a will leaving the relator the sum of $25,000 so that he would be paid if he became of age after the death of George H. Nute.
In pursuance of that agreement on October 11, 1911, George H. Nute was appointed by the Probate Court of Jackson County, Missouri, guardian of the estate of relator, duly qualified and thereafter acted as such until relator's legal majority, and that under the agreement took and received into his care, control and management the estate of relator and thereafter used the same in his business until relator arrived at his legal majority, at which time George H. Nute paid to the relator the sum of $9308.40, which he claimed to be the amount of the principal then belonging to the relator's estate, but he did not pay the relator the sum of $25,000 nor make any provisions to pay the relator out of his estate. The petition further stated that the relator had fully performed all the conditions of his part of the agreement, but that George H. Nute failed to perform his part of the agreement in that he failed to pay to the relator the sum of $25,000 at the time he became of age nor did he make any provisions to pay the relator this sum out of his estate, and that he did not account for the relator's share of the good will of the partnership business which was alleged to be of the value of $5000. That George H. Nute died September 28, 1931, a resident of Cass County, Missouri, and left his last will and testament, which was filed and probated in the probate court of that county; he left no children or other descendants or widow. That under the provisions of the will the defendants, J. Clarence Fry and Robert W. Pringle, were appointed by the probate court executors of the estate of said George H. Nute, deceased, and qualified as such; that under the provisions of the will all of the defendants named in the circuit court proceedings are named as devisees and legatees of said estate. The petition further alleged that George H. Nute at divers times, after entering into the agreement with relator's mother and while he was using the relator's property, told relator and his mother that he would make a will in accordance with the agreement providing that the relator should receive $25,000 out of his estate. That on May 27, 1927, George H. Nute, while mentally incapacitated to make a deed or transact any business, and while he was under the undue influence and domination of the said J. Clarence Fry and his wife, and Robert W. Pringle and his wife,
executed a deed conveying the farm in Cass County to J. Clarence Fry and Robert W. Pringle; that this conveyance was without consideration and the farm rightfully belonged to the estate of George H. Nute. The petition in the circuit court asked for the specific performance of the agreement, and for judgment in the sum of $25,000 with interest from the date the relator became of age and for the further sum of $5000 for his share of good will with interest from October 11, 1911, and that the same be declared to be charges and liens against the Cass County land and all other property belonging to the estate to the exclusion of any other claims of the legatees and devisees named in the will.
The defendants in the circuit court proceedings in Cass County filed a plea to the jurisdiction showing that none of the defendants were served by summons in Cass County, Missouri; and that the plaintiff was a resident of the State of California and for that reason the circuit court did not have jurisdiction over the persons of the defendants. The plea to the jurisdiction was sustained by the respondent and the cause dismissed. The relator filed a motion to set aside the order and judgment sustaining the defendants' plea to the jurisdiction, which motion was overruled by the respondent.
[1] Respondent has waived the issuance of the alternative writ and demurred to the petition therefor. This puts the cause at issue. [State ex rel. v. Gordon, 238 Mo. 168, 142 S.W. 315, Ann. Cas. 1913 A, 312.] The allegations of the petition demurred to stand admitted. [State ex rel. v. Reynolds, 256 Mo. 710, 165 S.W. 801; State ex rel. v. Hackmann, 283 Mo. 469, 223 S.W. 575.]
In determining whether or not the respondent had jurisdiction to try the cause pending before him, it is first necessary to decide if the petition states a cause of action in equity. The petition contains many irrelevant allegations. The prayer of the petition asks for "specific performance of said contract and agreement entered into by plaintiff's mother, as his natural guardian, with the said George H.
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This is an original proceeding in mandamus to compel the respondent, the judge of the Circuit Court of Cass County, Missouri, to set aside an order and judgment sustaining the defendants' plea to the jurisdiction of respondent over the persons of the defendants, and dismissing the case wherein this relator is plaintiff and J. Clarence Fry and Robert W. Pringle, the executors of the estate of George H. Nute, deceased, and J. Clarence Fry and Esther M. Fry, his wife, Robert W. Pringle and Georgia Pringle, his wife, Louise Haines, Mina Loersch and Walter Loersch, her husband, Clara A. Nute, the Town of Wolfboro, Carroll County in the State of New Hampshire, the George H. Nettleton Home for Aged Women in Kansas City, Jackson County, Missouri, and the Children's Mercy Hospital located in Kansas City, Jackson County, Missouri, are defendants.
That cause of action was instituted in the Circuit Court of Cass County by the relator as plaintiff and the petition in substance stated that William T. Nute, Sr., was a resident of Jackson County, Missouri, and died on September 13, 1911, and that he left surviving him this relator as his only child and sole heir at law, and Hazel H. Nute, his wife, who was the mother of this relator. At the time of his death, and for many years prior to it, W.H. Nute, Sr., was in partnership with George H. Nute, under the firm name and style of "Nute Brothers" and engaged in the business of livestock brokers, in Kansas City, Missouri; that the partnership business, at the time of the death of William T. Nute, Sr., was very prosperous and paying high profits and returns on the capital investment, and that the good will of the said business was very valuable. The petition also stated that William T. Nute, Sr., and George H. Nute were brothers of the half-blood; that at the time of William T. Nute's death, the relator was a minor having been born on December 21, 1909; that on or about October 11, 1911, while relator's mother, Hazel H. Nute, was acting as natural guardian for the relator, the relator having no legal guardian, for and in his behalf entered into a contract not in writing wherein the said George H. Nute agreed to act as the legal guardian of the estate of the relator during the relator's minority, and that his share and interest in the estate of William T. Nute, Sr., deceased, including the share in the estate, should be collected, retained, cared for, controlled, managed, and used in said business as long as relator remained a minor; that in consideration thereof George
H. Nute agreed to allow interest on the amount of relator's estate, so used by George H. Nute, at the rate of 6 per cent per annum; and that when the relator should arrive at his majority, George H. Nute would turn over all principal remaining in his hands to this relator. It was further agreed that George H. Nute, in consideration of the benefits by him to be derived by the use of relator's property in the business, would pay to the relator the sum of $25,000 at the time he became of age, and that he would make a will leaving the relator the sum of $25,000 so that he would be paid if he became of age after the death of George H. Nute.
In pursuance of that agreement on October 11, 1911, George H. Nute was appointed by the Probate Court of Jackson County, Missouri, guardian of the estate of relator, duly qualified and thereafter acted as such until relator's legal majority, and that under the agreement took and received into his care, control and management the estate of relator and thereafter used the same in his business until relator arrived at his legal majority, at which time George H. Nute paid to the relator the sum of $9308.40, which he claimed to be the amount of the principal then belonging to the relator's estate, but he did not pay the relator the sum of $25,000 nor make any provisions to pay the relator out of his estate. The petition further stated that the relator had fully performed all the conditions of his part of the agreement, but that George H. Nute failed to perform his part of the agreement in that he failed to pay to the relator the sum of $25,000 at the time he became of age nor did he make any provisions to pay the relator this sum out of his estate, and that he did not account for the relator's share of the good will of the partnership business which was alleged to be of the value of $5000. That George H. Nute died September 28, 1931, a resident of Cass County, Missouri, and left his last will and testament, which was filed and probated in the probate court of that county; he left no children or other descendants or widow. That under the provisions of the will the defendants, J. Clarence Fry and Robert W. Pringle, were appointed by the probate court executors of the estate of said George H. Nute, deceased, and qualified as such; that under the provisions of the will all of the defendants named in the circuit court proceedings are named as devisees and legatees of said estate. The petition further alleged that George H. Nute at divers times, after entering into the agreement with relator's mother and while he was using the relator's property, told relator and his mother that he would make a will in accordance with the agreement providing that the relator should receive $25,000 out of his estate. That on May 27, 1927, George H. Nute, while mentally incapacitated to make a deed or transact any business, and while he was under the undue influence and domination of the said J. Clarence Fry and his wife, and Robert W. Pringle and his wife,
executed a deed conveying the farm in Cass County to J. Clarence Fry and Robert W. Pringle; that this conveyance was without consideration and the farm rightfully belonged to the estate of George H. Nute. The petition in the circuit court asked for the specific performance of the agreement, and for judgment in the sum of $25,000 with interest from the date the relator became of age and for the further sum of $5000 for his share of good will with interest from October 11, 1911, and that the same be declared to be charges and liens against the Cass County land and all other property belonging to the estate to the exclusion of any other claims of the legatees and devisees named in the will.
The defendants in the circuit court proceedings in Cass County filed a plea to the jurisdiction showing that none of the defendants were served by summons in Cass County, Missouri; and that the plaintiff was a resident of the State of California and for that reason the circuit court did not have jurisdiction over the persons of the defendants. The plea to the jurisdiction was sustained by the respondent and the cause dismissed. The relator filed a motion to set aside the order and judgment sustaining the defendants' plea to the jurisdiction, which motion was overruled by the respondent.
[1] Respondent has waived the issuance of the alternative writ and demurred to the petition therefor. This puts the cause at issue. [State ex rel. v. Gordon, 238 Mo. 168, 142 S.W. 315, Ann. Cas. 1913 A, 312.] The allegations of the petition demurred to stand admitted. [State ex rel. v. Reynolds, 256 Mo. 710, 165 S.W. 801; State ex rel. v. Hackmann, 283 Mo. 469, 223 S.W. 575.]
In determining whether or not the respondent had jurisdiction to try the cause pending before him, it is first necessary to decide if the petition states a cause of action in equity. The petition contains many irrelevant allegations. The prayer of the petition asks for "specific performance of said contract and agreement entered into by plaintiff's mother, as his natural guardian, with the said George H. Nute as aforesaid, and that plaintiff have judgment in the sum of $25,000 with interest thereon from date when plaintiff became of legal majority, December 21, 1930, at six per cent per annum, and the further sum of $5000 for the share of plaintiff in the good will of said business with interest thereon at six per cent per annum from October 11, 1911, and that said sums be declared and decreed to be charges and liens against said Cass County land and all other property belonging to said estate to the exclusion of any claims" of the defendants. [2] The relator seeks an ordinary money judgment and further asks that the judgment be declared a lien upon all property belonging to the estate and upon the Cass County land that had previously been conveyed by George H. Nute. If the relator's petition does not state facts that entitle him to the lien asked for, then he
would only be entitled to an ordinary money judgment, and, therefore, he would have an adequate remedy at law. The petition does not allege that George H. Nute promised to secure the payment of either of these sums asked for in the petition. Nor does the petition allege that the estate is insolvent, but on the other hand specifically states that the relator "does not know and is not informed as to the value and worth of the said George H. Nute, deceased."
In Dazey v. Laurence, 153 Mo. App. 435, l.c. 441, 134 S.W. 85, the Springfield Court of Appeals in speaking of a similar situation said:
"One of the requisites to the exercise of equitable jurisdiction is the absence of an adequate remedy at law. Equity does not supplant the law, but only lends its aid when the legal remedy is in some way inadequate. The real end sought to be attained in this case is damages for a breach of contract and security for such damages. Why should the security be exacted, and what reason is there for asking a court of equity to enforce it as a lien upon the land in question? If defendant, Frank Elvin, who breached his contract, is solvent so that a money judgment can be collected by execution, then plaintiff has an adequate remedy at law, and there is no occasion for him to apply to a court of equity for protection. There is no testimony whatever in this case as to whether defendant, Frank Elvin, was solvent or insolvent. Plaintiff charged him to be insolvent, but this is put in issue by the answer of Laurence, and since plaintiff is only seeking to recover and enforce collection of a money judgment, the burden was upon him to prove the insolvency of Frank Elvin in order to place himself in a position to insist upon his right to have his demand made a lien upon the land Frank Elvin had agreed to pledge as security for his debt to plaintiff. Having failed to do this he has failed to show any ground for equitable relief."
Without the allegation that George H. Nute agreed to secure the relator or an allegation that the estate is insolvent we do not believe that the relator would be entitled to the lien as prayed for in the petition.
Moreover, the allegation that "the said obligation of said George H. Nute to pay plaintiff the sum of $25,000 became, was and is a charge and lien on all the said property which he, the said George H. Nute, owned," is a mere conclusion and has no force as an issuable fact essential to the statement of a cause of action. [Musser v. Musser, 281 Mo. 649, 221 S.W. 46.]
The allegation that George H. Nute deeded the Cass County land to the defendants, J. Clarence Fry and Robert W. Pringle, without a sufficient or valuable consideration is no concern of the relator when he failed to allege in his petition that the estate was insolvent. Before this deed could be set aside it would first be necessary for the relator to allege and prove that the estate was insolvent and to
establish his claim as a creditor of the estate. [Merry v. Fremon, 44 Mo. 518; Humphreys v. Atlantic Milling Co.,98 Mo. 542, 10 S.W. 140; Lyons v. Murray, 95 Mo. 23, 8 S.W. 170.]
[3] The allegation in the petition to the effect that a large amount of personal property was not inventoried is not sufficient to make this a case in equity. Section 63, Revised Statutes 1929, provides a method for the executor or administrator or other person interested in the estate to discover assets of the estate that are not inventoried by filing an affidavit to the effect that a person has concealed or embezzled or wrongfully withheld property belonging to the estate. We do not see how the relator can be a person interested in the estate unless he is a creditor of the estate and its assets are insufficient to pay its debts. Unless there is some purely equitable ground stated to determine the title to the property that is alleged to belong to the estate, the probate court has exclusive jurisdiction to determine whether there has been any property concealed or embezzled, or otherwise wrongfully withheld from the assets of the estate.
In the case of Bank of Willow Springs v. Lillibridge,316 Mo. 968, 293 S.W. 116, we said:
"The appellant claims that the circuit court had no jurisdiction of the subject-matter of this action, and that the proper proceeding was that undertaken and carried through by the probate court under Section 62, Revised Statutes 1919, where the executor, administrator, or other person interested in any estate might start a proceeding in the probate court on a showing that some person `has concealed or embezzled, or is otherwise wrongfully withholding any goods, chattels, money, books, papers or evidences of debt of the deceased.'
"In support of that position the appellant cites among other cases, Clinton v. Clinton, 223 Mo. 371, 123 S.W. 1, and Brewing Co. v. Steckman, 180 Mo. App. 320, 168 S.W. 226. The opinion in the Clinton case reviews and adopts an opinion by Judge GOODE in In re Estate of Huffman, 132 Mo. App. 44, 111 S.W. 848. The Huffman case and the Clinton case, therefore, taken together, announce the rule contended for by appellant as strongly as it may be put. In a proceeding to discover assets, the probate court has jurisdiction to try the issues raised, and in doing so may determine the title to the property alleged to be withheld. If the person against whom the proceeding is instituted claims the title to the property by gift of the deceased, or otherwise, the probate court has jurisdiction to try the title.
"It is a general rule that a probate court has no equitable jurisdiction; no jurisdiction to try issues which are purely equitable in their nature, and where the relief demanded is equitable.
"In State ex rel. v. Shackelford, 263 Mo. l.c. 63, 172 S.W. 350, quoting from State ex rel. v. Bird, 253 Mo. l.c. 580, 162 S.W. 122, Ann. Cas. 1915C, 1353, it was said: `While the rule announced in
the two cases last cited is undoubtedly sound law, I am not willing to concede that a probate court has jurisdiction to entertain a suit or proceeding, the sole basis of which is a demand for equitable relief, even though such relief should incidentally pertain to some matter of probate jurisdiction.'
"Numerous cases are cited by respondent to the effect that the probate court has no jurisdiction of strictly equitable issues."
[4] As we see the petition, the relator's cause of action is one for damages for the failure of George H. Nute to give him $25,000 when he became of age and $5000 for the use of the good will of the firm, or if George H. Nute died prior to the time the relator became of age, then he agreed to make a will leaving the relator $25,000. The failure to make a will under such conditions leaves the relator with an adequate remedy at law as he has an action for a breach of the contract.
In Morrison v. Land, 169 Cal. 580, 147 P. 259, the Supreme Court of California said:
"There is no dissent in the authorities from the proposition that one may make a valid contract with another to devise or bequeath property by his last will in a certain specified way. It is clear that in the event of a breach of such a contract, the party damaged has an action at law for the damage caused by such breach of the promisor, and in some cases this, by reason of the circumstances, may be his only remedy, for a resort to any equitable remedy can be had only where the circumstances are such as to make the case one within the well-settled principles relative to the proper exercise of equitable jurisdiction."
In Ex parte Simons, 247 U.S. 231, 38 Sup. Ct. 497, 62 L.Ed. 1094, the Supreme Court of the United States said:
"No doubt alleged contracts to make a provision by will must be approached with great caution in the matter of proof, but there is no doubt that if proved they are valid so far as no statute intervenes. So much seems to be assumed by the order of the judge, and is the law we believe of New York as well as of other states and England. But if valid we see no reason why a contract to bequeath a certain sum should not give rise to an action for damages if broken, as certainly as a contract to pay the same sum in the contractor's life, or at the moment of the contractor's death. . . . If we are right, the order was wrong and deprived the plaintiff of her right to trial by jury."
We do not believe that the case of Hall v. Getman,121 Mo. App. 630, 97 S.W. 607, cited by relator, is in point. In that case the deceased promised the plaintiff that if she would come and live with her until her death, she would give plaintiff all of her property. Deceased did not promise to give any specific amount of money but all of her property. In that case plaintiff brought an action to recover
damages for breach of the contract. The Kansas City Court of Appeals in its opinion said:
"To permit plaintiff in the law action to recover the estimated value of the property mentioned in the contract would be, not only a flagrant violation of the statute requiring wills to be in writing, but it would be putting into an unalterable judgment, and thus making fixed and definite, that which, under the terms of the contract, is, in its very nature, indefinite and contingent. The contract contemplated that the demands of creditors of all classes should be satisfied in full out of the estate before plaintiff should receive anything, but, if plaintiff is permitted to recover a money judgment for the estimated value of that residue and thereby become a creditor of the estate, it is not only possible, but very likely, that her claim, added to the other proven demands, would exceed the amount of the proceeds actually derived from the administration of the estate, and other creditors, being compelled to prorate with her, would receive less than full payment, and thus plaintiff would obtain more than the contract entitled her to receive. The opinion of witnesses and the judgment of the jury, may easily err in estimating the value of the property, and, until the time for proving demands against the estate has expired, the witnesses may err in their statement of the amount and character of the indebtedness of the estate. To impose any part of the burden of such mistakes on the creditors would be in direct violation of the terms of the contract, and for that reason, if for no other, should not be permitted."
[5] The relator contends that even if the original case, brought by the relator in the Circuit Court of Cass County, was an action in law, that court would have original and concurrent jurisdiction with the probate court and relator's action was rightfully brought in that circuit court. There is no doubt that under Section 189, Revised Statutes 1929, the Circuit Court of Cass County had jurisdiction of the subject-matter of the cause of action alleged in the petition. This section is as follows:
"Any person having a demand against an estate may establish the same by the judgment or decree of some court of record, in the ordinary course of proceedings, and exhibit a copy of such judgment or decree, and shall also exhibit copies of all judgments or decrees rendered in the lifetime of the deceased to the probate court, and when a claim is allowed against an estate which is secured by mortgage, deed of trust or other lien held by the creditor, the same may be allowed as other claims, but shall not be paid until such security held by the claimant has been exhausted; but if such security be not sufficient to pay off and discharge the debt of such creditor, then such creditor for the residue of his debt shall be entitled in common with other creditors to have the same paid out of the estate."
As the relator lived in the State of California and none of the
defendants lived or were served with process in Cass County, the question then is, did that court have jurisdiction over the persons of the defendants? Relator contends that Section 189, supra, allows a claim against an estate to be established in the first instance by a judgment in the circuit court and that Section 5, Revised Statutes 1929, gives the circuit court of the county, in which the estate is being probated, jurisdiction over the persons of the defendants even though the defendants were served by summons in another county. Section 5, supra, is as follows:
"All orders, settlements, trials and other proceedings contemplated by articles one to thirteen, inclusive, of this chapter shall be had or made in the county in which the letters testamentary or of administration were granted."
We do not agree with the relator. If his contention is correct, then under Section 5, supra, the circuit court of the county in which the estate is being administered would have exclusive jurisdiction to by demands against the estate. Section 189, supra, provides that such demands may be established by judgment or decree of "some court of record" and "in the ordinary course of proceedings." We believe that Section 5, supra, relates only to proceedings in the probate courts and has nothing to do with suits in the circuit courts. After the judgment is obtained in the circuit court it is then necessary for the proper probate court to classify the claim. In the case of Green v. Strother,201 Mo. App. 418, 212 S.W. 399, in speaking of Section 189, supra, the Kansas City Court of Appeals said:
"The statute simply provides that the claimant may elect to first go into a court of record and establish his claim against the estate there by the same kind of proceeding that he would pursue if the deceased had not died, but was sued while living." In the case of Yarde v. Hines, 238 S.W. 151, l.c. 153,209 Mo. App. 547, in discussing Section 5, supra, the Kansas City Court of Appeals said:
"It is insisted that the Circuit Court of Jackson County was without jurisdiction over the subject-matter because the suit could be brought only in Macon County where plaintiff was appointed administratrix. In support of this defendant cites Section 5, Revised Statutes 1919. This statute relates to the administration of estates in the probate court, and has nothing to do with suits of this character. This suit was properly brought under Section 1180, Revised Statutes 1919."
We, therefore, believe that the Circuit Court of Cass County did not have jurisdiction over the persons of these defendants and that proceedings of this character are governed by Section 720, Revised Statutes 1929, and that the respondent correctly ruled on the plea in abatement. The writ of mandamus is, therefore, denied.