Stetina v. Bergstein

Plaintiff had judgment in the circuit court for $700, based on the following statement of account originally filed as a claim in the probate court, where she likewise had judgment: St. Louis, Mo., May 23, 1916. To Charles Bergstein, Administrator of the Estate of Kathrine Zacek, deceased. To Lillian Stetina, formerly Lillian Rezney, Dr. To money loaned and advanced Kathrine Zacek under a continuous open account in various sums and amounts at various times between November 1, 1909, and July 6, 1915, ............................. $1900.00 Credits. By money repaid by said Kathrine Zacek in various sums and amounts at various times between November 1, 1909, and July 6, 1915, ........ 700.00 ________ Balance due ....................... $1200.00 Plaintiff is a granddaughter of Kathrine Zacek and had lived with her since 1901 when she was six years *Page 370 of age. When of the age of fourteen years in 1909 plaintiff started to work, and her evidence tends to show that she turned her earnings as received over to her grandmother, who, after providing the plaintiff with food, clothing and shelter, was to account to plaintiff for the balance in her hands. The arrangement was not definitely established by the evidence, but it may be inferred from the declarations of the deceased Kathrine Zacek that it was her intention to keep said funds for the benefit of the plaintiff after providing for her board and clothing. This arrangement continued for about two years after the plaintiff reached the age of maturity, at which time Kathrine Zacek died. Kathrine Zacek was not the legally appointed guardian of the plaintiff, and the plaintiff being a minor was unable to enter into any contractual relation in regard to her estate or earnings, and the result of the arrangement between the grandmother and the granddaughter was to constitute the grandmother a trustee of the funds of the plaintiff which came into her hands and for which she would be accountable. Kathrine Zacek being without legal appointment or qualification, exercised control over the estate of the minor and thereby became what is termed a quasi guardian or guardian de son tort. By the statement filed in the probate court and by the evidence it is conceded by the plaintiff that Kathrine Zacek is entitled to claim credit against the funds in her hands for all sums reasonably expended by her for food, clothing and shelter furnished the plaintiff between the time she began turning over said funds to her grandmother in 1909 until the time of her grandmother's death in 1915. Although the plaintiff became of age some two years prior to her grandmother's death, there was never at any time a settlement between the parties and the trust remained an open and unsettled account until the grandmother's death. This is an action for money had and received. Ordinarily where a trust relation exists between the parties *Page 371 and the trust has been settled and the balance agreed upon, or where there is no question as to the amount owing from the trustee to the cestui que trust, an action for money had and received will lie against the trustee. And it is the law of this State that an action for money had and received will lie on behalf of a ward, upon the ward attaining the age of maturity, against the one who has assumed the relation of guardian without authority, and this is so even though the trust is an unsettled and open one. [Johnson v. Smith's Administrator, 27 Mo. 591; Zeideman v. Molasky, 118 Mo. App. l.c. 116, 94 S.W. 754.] After the plaintiff became of age the same arrangement between herself and grandmother continued in the matter of her earnings and support, and it follows from this for the period prior to the time the plaintiff reached maturity Kathrine Zacek became charged as her trustee by reason of having acted as her guardian, and which trust grew out of that relation. Although this trust was unascertained and unsettled, still under the authorities above cited plaintiff had the right, upon reaching her majority, to bring an action for money had and received. As to the funds coming into the hands of Kathrine Zacek subsequent to the time the plaintiff became of age, she was trustee of an express trust by virtue of the agreement and arrangement between her and the plaintiff. Such trust, however, was indefinite as to the amount chargeable against the trustee and as to what credits she was entitled, and no settlement of the trust was ever had between the parties. It is plain that under such circumstances an action at law for money had and received will not lie, the remedy being by bill in equity to obtain an accounting therefor. [Zeideman v. Molasky, supra; Ewing v. Parrish, 148 Mo. App. 492, l.c. 502, 128 S.W. 538.] It follows that the plaintiff had two causes of action against Kathrine Zacek, one to charge her as trustee by reason of the relation of guardian and ward, *Page 372 which ceased when plaintiff reached the age of maturity, and another to charge her as trustee of an express trust of funds coming into her hands subsequent to the majority of plaintiff under an agreement to account therefor. For the first cause stated she could, on reaching her majority as heretofore stated, maintain an action for money had and received, but as to the second cause her remedy lay solely in equity. The defendant estate filed a motion at the close of plaintiff's evidence and also at the close of the case, to require plaintiff to elect upon which cause of action she would stand. It also filed a general demurrer to the evidence. Her cause of action, based on her earnings turned over to her grandmother subsequent to her majority and on account of which her grandmother was the trustee of an unsettled and unascertained trust cognizable only in equity, was commingled in one statement of account filed in the probate court with her claim against her grandmother growing out of the trust relation of guardian and ward. The probate court had no jurisdiction of plaintiff's said cause of action cognizable only in equity, as that court has no equitable jurisdiction. On appeal to the circuit court, that court was likewise without power to entertain the equitable cause of action, as on appeal from the probate court the circuit court has only such jurisdiction as may be properly exercised by the probate court. This being true the motion to elect did not reach the defect, as plaintiff had no right to elect to proceed upon her equitable cause of action, nor did the court have the power to entertain it in this proceeding. Consequently there was no error in overruling the motion. Defendant's general demurrer to the evidence was likewise properly overruled, as we think there was sufficient evidence outside of that objected to by the defendant to warrant the court in submitting the case to the jury on the cause of action growing out of the trust relation assumed by Kathrine Zacek when she undertook *Page 373 to be guardian of plaintiff's estate and in charge of her earnings prior to her maturity. In instructing the jury on behalf of plaintiff the court permitted the jury to take into account the money or earnings entrusted to Kathrine Zacek by plaintiff during the entire period from November 1, 1909, to July 12, 1915, which covered both causes of action herein referred to and which included that cause of action arising out of the trust relation, the settlement of which rested solely in equity for an accounting. The giving of this instruction in this proceeding was error and is one of the complaints made against the judgment by defendant. The jury should have been told to disregard any earnings or funds entrusted to Mrs. Zacek subsequent to the time plaintiff reached her majority. For the error noted the judgment should be reversed and the cause remanded.