Opinion
No. 27758.
February 21, 1950.
APPEAL FROM THE CIRCUIT COURT, SHELBY COUNTY, HARRY J. LIBBY, J.
James J. Browning, Paris, for appellant.
Ted A. Bollinger, Shelbyville, for respondent.
This appeal is from a judgment of the Circuit Court of Shelby County, Missouri, overruling appellant's motion to set aside a final settlement which appellant as former trustee of the Estate of Susan Priest, deceased, Lizzie Dunn, beneficiary, had submitted to the court and which the court had approved when the appellant's petition to resign as such trustee had been sustained.
It appears that Susan Priest died in April 1895, leaving a will and codicil creating a trust estate in favor of Lizzie Dunn, named therein as the beneficiary of said estate. The record shows that Dr. Marvin C. McMurry, appellant herein, was appointed trustee of said estate on June 6, 1930, by said Circuit Court of Shelby County after a number of other trustees had served in that capacity. Appellant continued in such office of trustee and performed his duties until he voluntarily resigned and was discharged from his duties and obligations as trustee on December 6, 1948. Upon appellant's own application to be relieved from the office of trustee, the court entered an order sustaining his request and a final settlement of the estate was submitted by him and approved by the court. Thereupon W. B. Pickett, respondent herein, was appointed as successor trustee and filed his receipt for the sum of $962.12, being the total amount of the estate remaining as shown by the final settlement of respondent's predecessor, the appellant herein.
On December 22, 1948, appellant filed a motion in said court to set aside the final settlement made by him and requested permission to file an amended settlement which would show a balance in said estate of $451.44 which appellant alleged was the correct balance and which would, if approved by the court, require a repayment to appellant of the sum of $510.68 out of the estate.
No exceptions were filed to the said final settlement made by appellant but upon the filing of the application by appellant for permission to file the amended settlement above referred to, the court properly required strict proof to be made by appellant of such claim for a refund before reaching any conclusion as to whether a refund should be made.
After a full hearing the court entered its judgment overruling appellant's motion to set aside said final settlement. Thereafter, appellant filed a motion for a rehearing or new trial on the said motion to set aside the final settlement, which said motion for a new trial was overruled. Appellant then appealed to this court.
In his motion to set aside the final settlement which he had made as trustee the appellant alleged that said final settlement which was filed on December 6, 1948, had been examined and approved by the court on said date; that he as trustee and his bondsman had been discharged by the court and that he had paid to the clerk of the court the amount due said estate. Appellant's said motion then charged that an error had been made in said final settlement and alleged as follows:
"That as such Trustee movant charged himself with the sum of $1913.47 as the amount due said estate from his last settlement, when he should have charged himself with the sum of $1462.03, as shown by said last settlement.
"Wherefore, Movant moves that said final settlement and orders relating thereto be set aside by the Court; and that the Trustee be permitted to file a new and correct settlement, showing such amount due said Estate as may be found due by the Court."
The answer of William B. Pickett, successor trustee, admitted that appellant as former trustee had on December 6, 1948, filed his final settlement and that said settlement showed a balance due the estate of $1,913.47. Said answer further admitted that the court had examined and approved said final settlement and had discharged said former trustee and his bondsman after said former trustee had paid to the clerk of the court the amount due said estate. Said answer denied the allegations in appellant's motion that he, appellant, should have charged himself in said final settlement with the sum of $1,462.03 instead of $1,913.47.
The answer of W. B. Pickett as successor trustee then alleged that according to his information and belief various sums of money had been withdrawn from said former trustee's account on deposit in the Paris National Bank of Paris, Missouri, during the tenure of said former trustee for which no accounting had been made; that various sums of money had been turned over to said former trustee for deposit in said trustee account for which no accounting had been made; that there had been interest earned upon the aforesaid trustee account during the tenure of the former trustee which had not been charged to said trustee as assets of the estate in the final settlement filed December 6, 1948, and that said former trustee had wrongfully taken credits on his said final settlement for which there were no receipts or vouchers.
It appears that Mr. Christian, the first trustee of said estate, turned over to Marvin C. McMurry, his successor as trustee, and who is the appellant herein, the assets belonging to the estate. The first settlement of appellant as successor trustee filed October 9, 1941, shows the following assets as turned over to him by his predecessor:
"Rice Maupin Note .................. $ 400.00 One share of Stock in Marion County Loan and Building Association ...................... 200.00 One Bond Long Bell Lumber Company ........................... 500.00 One Time deposit Hannibal National Bank .............................. 100.00 One Time deposit Hannibal National Bank .............................. 76.12 Money on deposit Hannibal National Bank .............................. 50.50 Interest on Loans since appointment in 1930 ........................... 135.41 --------- Total ........................... $1462.03."
In said first settlement appellant as trustee reported that he had not paid out any of the funds or assets of the estate.
On October 11, 1946, appellant as trustee made his second settlement as follows:
"Maupin note ....................... $ 400.00 Five and one-half shares Long Bell Lumber Co. .................... 500.00 Savings account Paris National Bank ............................... 1013.47 --------- Total assets ................... $1913.47."
In connection with said settlement appellant as said trustee made the following recitals: "nothing has been realized from items one and two of this report."
On December 6, 1948, appellant as such trustee filed his final settlement in which he charged himself as follows:
"To balance from last settlement October 1946 ..................... $1913.47 and some small interest charges, making a total charge of 1998.18."
Said final settlement showed that after taking credit for the Maupin note above mentioned and numerous other credits there was a balance of $962.12 which appellant, Marvin C. McMurry as trustee paid to Pickett, successor trustee.
The record also shows that there was filed with the clerk of said court on April 19, 1948, what purported to be appellant's third settlement as such trustee, but said settlement was not presented to the court and was neither approved nor disapproved by the court. Appellant in his brief states that on said date there was a conference between the judge of the court, appellant as trustee, and the attorney for the trustee, in which it was agreed that because of the trustee's physical condition the trustee should, in lieu of said settlement, file his petition for discharge from further duties in the matter. Thereafter, on December 6, 1948, appellant as trustee filed his final settlement which, as heretofore stated, was presented to and approved by the court and on the same day appellant McMurry as trustee paid to Pickett, successor trustee, $962.12, the balance shown in said final settlement.
The record shows that on December 22, 1948, the court ordered appellant's motion to set aside his final settlement as trustee to be set for hearing on January 7, 1949; that on said last named date the hearing was begun before the court in which evidence was introduced but that the hearing was continued and reset for January 29, 1949, to enable appellant as movant of the motion to take depositions and to introduce additional evidence. Said depositions were taken and filed in the cause and on February 2, 1949, to which date the hearing on appellant's said motion to set aside his final settlement as trustee had been continued, further evidence was introduced in the form of a large number of exhibits.
At the conclusion of the evidence introduced on behalf of appellant as former trustee and that on behalf of respondent, successor trustee, the matter was argued before the court, after which, on February 23, 1949, the court entered its order overruling appellant McMurry's motion to set aside his final settlement as former trustee.
This case having been tried before the court without a jury, it is our duty to review it upon both the law and the evidence as in suits of an equitable nature. Section 114(d) Laws Mo. 1943, page 388, Mo.R.S.A. Section 847.114(d). Said section, however, also provides that the judgment of the trial court shall not be set aside "unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses."
We have examined the entire record in this case and find no evidence which would justify us in interfering with the conclusion and judgment reached by the trial court herein.
The burden was on appellant as movant of the motion to prove by evidence and not by assertion or argument that he had overcharged himself in the amount he claimed. We are of the opinion that he failed to sustain this burden. Although appellant's counsel made a valiant and earnest effort to convince the court by argument that appellant was entitled to a refund because of an overcharge in said settlement, we believe the court reached the right conclusion on the evidence before it. We do not believe that it is necessary or that it would serve any useful purpose for us to attempt to set forth here in detail the various exhibits and items of evidence introduced by appellant to establish his contention of an overcharge made in his settlement. To do so would require the extension of this opinion beyond all reasonable limits because it would involve a statement of the accounts of the estate in question for a period of many years during which appellant as former trustee had full and complete change thereof.
Appellant's brief under "Points and Authorities" cites no authority whatsoever, not to mention any authority that would justify us in interfering with the trial court's judgment. Notwithstanding the fact that appellant's brief does not comply with the rules of the Supreme Court with respect to the requirement as to a statement of the facts and the citing of points and authorities, we have, nevertheless, examined the entire record to determine whether or not the court committed any reversible error and find no such error.
One of appellant's points is that the court erred in refusing to permit C. C. Cline, president of the Paris National Bank, to testify in the case although, as appellant contends, said witness was present in court with his bank records showing the account of appellant as trustee of the estate in question. It appears that in his motion for a new trial appellant alleged that he had newly discovered material evidence which was necessary to a complete and final settlement of the cause; that said newly discovered evidence showed that on the date that appellant as former trustee sold and assigned the certificates of stock of the Long Bell Lumber Company belonging to said estate the sums of money received for said stock were duly deposited to his account at the Paris National Bank at Paris, Missouri, as trustee. It will be observed that appellant did not attempt to produce this witness and such testimony until after the decision of the court had been rendered overruling his motion to set aside his final settlement.
It is obvious that the newly discovered evidence was available to appellant at and prior to the hearing on his motion and that by the exercise of proper diligence on the part of said trustee said testimony could have been produced at the trial and hearing of said motion. There was no showing on the part of appellant that he had used due diligence to procure such testimony until after the decision by the court against him. Appellant did not offer to present such testimony until the court was hearing his motion for a new trial, also referred to as motion for rehearing.
It has been held by our Supreme Court that motions for a new trial based on newly discovered evidence are not favored; that such motions should be examined with caution, and that a motion for a new trial based on alleged newly discovered evidence is properly refused where there is no showing of diligence to secure such evidence in time for the trial. Arnold v. May department Stores Co., 337 Mo. 727, 85 S.W.2d 748. Said Arnold case, supra, further holds that the matter of granting a new trial on newly discovered evidence rests largely in the discretion of the trial judge.
We are of the opinion that the trial judge in this case not only did not abuse his discretion but on the contrary was very considerate of appellant and gave him every opportunity to present his evidence having continued and reset the hearing to enable appellant to prepare therefor.
We find no reversible error in the record and the judgment is accordingly affirmed.
ANDERSON, P. J., and HUGHES, J., concur.