In a motion filed by the administrators of the estate of H.B. Martin, deceased, and A.F. Moss, it is asserted that Martin Moss obtained a personal judgment against Mrs. Vance and the trustee for $69,553.08, which upon order was paid into court, and that they obtained a personal judgment against Mrs. Vance for $3,132 38. They assert that the trustee had taken over all of the securities, and that at the date of this so-called judgment, all of the assets were in money with the exception of the real estate ordered by the judgment to be conveyed. They then point out that by this conversion the trust had terminated, and that, since they had these personal judgments, execution of which had been stayed by the supersedeas bond, they are entitled to judgment upon the supersedeas bond in these appellate proceedings, and that it is beyond the power of this court to deny them legal interest on the judgment.
We will consider the matter of interest later. At present the writer admits that after reading the entire record he turned back and spent a great deal of time upon that part of it which had to do with the main issues, whether the attorneys could participate in the distribution, and, if so, to what extent, if any, Paul Avis might participate. The record of those two hearings was gone over again and again considering the evidence in its entirety with respect to this part of it, and that part of it, to be certain that what seemed a fair conclusion from parts of it might not be unfair in the light of all of it, and not only was this a long-drawn out task, but in addition *Page 26 to that it was necessary to permit recovery on some theory not advanced by the attorneys, for the two contentions urged by them, that they made her the heir of the child, and that the estate came to her strictly by inheritance, were utterly untenable.
After all of that, the writer being of the opinion that something said about the trustee taking over the securities had not been carried out, and that there had been only a partial distribution, and, not having in mind any necessity of doing more than lay down general instructions for orders of distribution, merely equalizing certain inequalities mentioned in the opinion, overlooked the fact that there had been a few items surcharged against Mrs. Vance, those being the items making up the $3,132.38.
As a matter of fact, the attempted abortion of the proceedings, those to settle a trustee's accounts and to order distribution, into proceedings for specific performance of a contract, induced proceedings well calculated to lead one into the conclusion that there had been but an order for partial distribution.
The case-made contains 908 pages. The proceedings on the Martin Moss claim ran to page 407. The proceedings on the Avis claim ran to page 830, including the exhibits and clerk's minutes showing purported judgments, one in favor of Martin Moss, and one against Paul Avis. Subsequently a witness was called to testify as to some item of expense, and while he was on the stand it was agreed between the parties (not including the trustee) by a stipulation merely dictated to the reporter, that the trustee might take over the securities at principal plus accrued interest. The next day another stipulation was dictated to the court reporter, covering the few items of surcharge, and also stipulating that the trustee had on hand the sum of "blank dollars," followed by these few words, "including the proceeds of the sale of the mortgage securities," and stipulating that the trustee had on hand bonds of the value of "blank dollars." The last report filed by the trustee had been filed July 13, 1928, running to July 11, 1928, just prior to the hearing on the Martin Moss claim, and it showed cash in the sum of $1,118.05, and savings deposits, which were practically cash, in the sum of $124,515.04 and also showed mortgages in the amount of $149,725, and bonds in the sum of $10,000. No further report was ever filed by the trustee. No order was ever made permitting it to take over the securities individually, nor was any order made confirming any such conduct. After these proceedings followed the findings of fact, in which the court found that the trustee had on hand $139,107.37, and was in possession of certain described real estate, making no mention of securities. Of course, the testator's mother, individually and as administratrix of the estate of the testator's father, had a half interest in the assets shown in the report of July 13, 1928, but it is to be observed that the money on hand, according to the findings of fact, was very little above the amount shown in the report of July 13, 1928. Even in this so-called judgment, it was expressly provided that the judgment for $3,132.38 should be a lien on all of Mrs. Vance's interest in property in the hands of the trustee. The proper way to have conducted the proceedings was in harmony with their object and to carry out the jurisdiction invoked by the filing of the trustee's account, and there should have been a supplemental account filed showing balance on hand July 11, 1928, subsequent receipts and disbursements, and especially a charge against the trustee for money paid by itself individually for the mortgage securities, and that account should have been approved, and, not only as a muniment of title to the Exchange Trust Company, but as well for the mortgagors, to constitute authority to release in its individual capacity, there should have been an order confirming the taking over of the securities; and also there should have been an order distributing the entire estate, rather than a purported judgment in the form of a judgment for specific performance.
They say that since giving the supersedeas bond Mrs. Vance has been in possession of the entire estate. We find no order distributing her interest to her, the last entry as to her interest being the one in the so-called judgment establishing the $3,132.38 as a lien on her interest in property in the hands of the trustee. However, the proceedings indicate that probably that assertion is true, for it was provided in the order overruling the motion for a new trial that upon approval of the bond the $69,553.68 paid into court on the so-called judgment should be paid to her, and that she might collect $28,885.68 due from the Magnolia Petroleum Company, and might collect for future production.
The writer concedes that he should have again gone carefully over this subsequent record, and was remiss in concluding that the purpose of having the trustee take over the mortgages had not been effected, and in overlooking these items of surcharge and the peculiar manner in which the estate was handled in the order overruling the motion *Page 27 for a new trial. We shall have to consider the judgment for the $3,132.38 for the surcharged items, and, since the $139,107.37 on hand November 26, 1928, covered everything but the real estate and production not paid for, we may make more definite orders as to distribution, although a subsequent accounting will be necessary as to some items, as in any event it would have been required. We shall proceed to state the account as far as our decision bears upon certain items, and, so far as she is in possession, an order of distribution as to her will be unnecessary, and an order may be made to pay the attorneys whatever sums may be the total amount credited to them respectively upon final accounting. We shall for the present deal merely with principal, leaving consideration of interest to the last.
Out of the $139,107.37 on hand November 26, 1928, Mrs. Vance shall be credited with one-half, or $69,553.69, and the attorneys shall be credited with the other half, $69,553.68. The costs on the Martin Moss claim to and including receipt of the mandate of this court shall be charged one-half against Mrs. Vance and one-half against the attorneys. The balance of the $69,553.68, credited to the attorneys, after deduction of the one-half of said costs, shall be handled as follows: Twenty per cent. (20%) shall be charged out and credited to Paul Avis; an additional $1,400, with legal interest from February 2, 1917, shall be charged out and credited to Paul Avis; the costs on the claim of Paul Avis to date of receipt of the mandate of this court shall be charged out; if Martin Moss received anything in distribution of the child's estate, that amount shall be charged out to them and credited to Mrs. Vance. Since the claims against the $8,000 in process of administration were reduced by claims to $3,500, and the administrators by stipulation were allowed $12,000 out of the trust assets, it may be that they retained that $3,500 for allowances, but the facts should be investigated as to distribution in the county court; the final balance remaining out of said $69,553.68 shall be credited to Martin Moss.
Mrs. Vance shall be charged with the $3,132.38, credited one-fifth to Paul Avis and four-fifths to Martin Moss.
Mrs. Vance shall account for the attorney's interest in all moneys received by her in payment for production, to be credited one-fifth to Paul Avis and four-fifths to Martin Moss.
Mrs. Vance shall account for the attorneys' interest in rent for her use and occupation of the residence on South Lewis at what from time to time may have been a fair monthly rental since November 26, 1928, and shall account for their interest in rents actually collected by her since that date on another tract of rental property located at 1102 East 17th Place, to be credited one-fifth to Paul Avis and four-fifths to Martin Moss.
Mrs. Vance shall account for the attorneys' interest in all collections made by her upon a contract of sale of real estate mentioned in the proceedings, to be credited one-fifth to Paul Avis and four-fifths to Martin Moss, and she shall make proper conveyances to them of their interest in like proportions, unless the contract has been paid out anl conveyance has been made to the purchaser.
The court shall require proper conveyances to be made of the attorneys' interest in other real estate, in the proportions of one-fifth of the interest to Paul Avis and four-fifths to A.F. Moss and the representatives of the estate of H.B. Martin, deceased, the conveyance of interests in the allotment to include like proportional interests in oil, gas and other minerals, subject to any existing lease, and like interests in production not paid for; and the court shall require execution of proper division orders.
We shall now consider this matter of interest on the share of the attorneys: The argument as to the termination of the trust, the money judgments, and supersedeas bond, has no appeal. We do not recognize the power to deprive the court of jurisdiction to proceed under the petition of the trustee for approval of its accounts and for distribution of the estate, or to deprive it of power to effect such results in accordance with the doctrines and principles of equity jurisprudence. But even had they the right to convert the proceedings into a suit for specific performance, as this so-called judgment plainly tried to do, as the so-called money judgments were followed by orders for conveyances, as they will observe if they read it, still, they would be seeking an equitable remedy, one not demandable as of right, but only under such equitable terms and conditions as to the court might seem proper, in the determination of which the appellate court could not be trammeled or deprived of jurisdiction by any judgment or order of the trial court, so that the supersedeas bond will secure only what is finally determined to be due.
Mrs. Vance must account for the amounts *Page 28 of final credits made in favor of the attorneys, but this court adheres to the position taken in the opinion with respect to interest, for the reasons stated in the opinion. So, no interest shall be allowed on the attorneys' share, except to the extent that it can be ascertained upon an accounting that she has earned interest upon it. It is highly probable that to obtain the supersedeas bond in the penal sum of $200,000, it was necessary for her to deposit in some bank at some agreed rate of interest, subject to joint control, or to deposit with the surety on an agreement for some agreed rate of interest, an amount considerably in excess of any possible liability, and, if so, of the total interest so earned, they may have such proportion as their principal may bear to the whole principal so deposited. The trial court will take all necessary steps in the making of proper orders of distribution and carrying them into effect.
In all probability the trial court has before this time been required to enter some sort of order confirming title to the mortgages in the trustee in its individual capacity as a basis for authority to so release the mortgages, but, if not, for the benefit not only of the trustee, but also of the mortgagors, it will enter a nunc pro tunc order confirming such title as of the date the mortgages were taken over by the trustee individually.
Of course, the supersedeas bond secures such final distribution as may finally be ordered under the modifications made by this court in affirming the trial court, and the orders, since Mrs. Vance was put into possession of all of the estate, will run against her.
Rehearing denied.
CULLISON, V. C. J., and ANDREWS, McNEILL, OSBORN, BAYLESS, BUSBY, and WELCH, JJ., concur. RILEY, C. J., not participating.