On appeal here from the circuit court of the city of St. Louis, on appeal there from the probate court. Judgment in the circuit court sustaining a motion of the curator surcharging a settlement made by *Page 498 the administrator of Caroline A. Kelley, deceased, former guardian of her sister Rosalie Anspach, non compos, and directing him to turn over certain securities and money to the subsequent and domiciliary curator, William E. Woerheide.
Upon the death of Caroline A. Kelley, Joseph M. Kelley, her widower, under appointment from the probate court, took charge of her estate. In due course the administrator filed his first inventory, and, under the heading "PROPERTY CLAIMED FOR ROSALIE ANSPACH," he inventoried 100 shares of the Common Stock of the National Enameling Stamping Company, par value of $100 per share. The certificate was issued to Caroline A. Kelley, and was not endorsed. He also inventoried one Liberty bond for $1,000 registered in the name of Caroline A. Kelley, guardian for Rosalie Anspach, and one bond of the Helena Gas Electric Company for $1,000.
Thereafter curator Woerheide filed a petition in the probate court praying that certain property be turned over to him, and on October 15, 1918, the parties appeared in court, and by consent the probate court ordered the National Enameling Stamping Company stock, the Liberty bond, and the Helena Gas Electric Company bond turned over to the curator as the property of the ward Rosalie Anspach, without prejudice to either of said parties, as to the title to the remaining stock and bonds described in the petition of said curator, theretofore filed. The receipt given the administrator, by curator Woerheide, for the above stock and bonds, omitting caption and signatures, is as follows:
"St. Louis, Mo., October 16, 1918.
"Received of Joseph M. Kelley, Administrator of Caroline A. Kelley, the following property of Rosalie Anspach, this day surrendered and turned over by him in obedience to the order of the Probate Court and entered in the above entitled cause on October 15, 1918, viz.: *Page 499
100 shares National Enameling Stamping Co., common stock of the par value of $100, but of the present market value of about $52 .................................. $5,200.00
Dividend declared Aug. 10th, $1.50 per share 150.00 One $1,000 registered 3½ per cent Liberty Bond ........................................ 1,000.00
June interest on same ........................... 17.50
One $1,000 Helena Gas Electric Co. first six per cent mortgage bond, including interest due April 1, 1918 .................. 1,000.00 ________ Total ....................................... $7,367.50
"And the said estate of Caroline A. Kelley, deceased, and the said Joseph M. Kelley, as administrator thereof, and also in his individual capacity, are now hereby released and discharged of all and all manner of liability on account of said securities and dividends, or any of them, and on account of the possession, custody and retention thereof.
"It is understood, however, that this receipt is without prejudice to the rights of any parties hereto in any matter connected with any securities not hereinabove listed.
"IN WITNESS WHEREOF we have hereunto affixed our signatures the day and year first above written.
"(Signed) WILLIAM E. WOERHEIDE, Curator of the Estate of ROSALIE ANSPACH, Non Compos."
Thereafter on October 13, 1919, the curator filed an amended petition surcharging the settlement filed by the administrator of Caroline A. Kelley, and praying that a correct balance be ascertained and that the administrator be ordered to turn over and deliver to the curator any securities now held by him as administrator of the estate of Caroline A. Kelley belonging to said Rosalie Anspach. *Page 500
Upon a trial de novo in the circuit court, the court found that Joseph M. Kelley, administrator of Caroline A. Kelley, had in his possession the following securities belonging to the estate of Rosalie Anspach and which Caroline A. Kelley as guardian of Rosalie Anspach, non compos, had in her possession at the time of her death, to-wit: 50 shares of Westinghouse Electric Mfg. Company Common Stock, and one bond of Distillers Securities Corporation of the denomination of $1,000, which the administrator, together with $465.55 as dividends on said stock and interest on said bond to December 1, 1920, was ordered to turn over and deliver to curator Woerheide for his ward.
The cause was tried upon the testimony offered and introduced by curator Woerheide. The testimony tends to show that on March 8, 1916, Caroline A. Kelley, Pennsylvania guardian of Rosalie Anspach, through her husband Joseph M. Kelley, sold seven Western Maryland bonds for $5154.14; that on January 17, 1916, and February 24, 1916, there were sold four and eight shares of New England Power Company stock for $136.92 and and $482.39, respectively, all the property of Rosalie Anspach, and which was, with Mrs. Kelley's consent, credited to the personal account of Kelley. This was a speculative account covering the year 1916, during which time Kelley was engaged in gambling transactions and margin trades in divers and sundry securities. He also made a few legitimate trades, among others, buying on January 13, 1916, for $2662.50 cash, 100 shares of the National Enameling Stamping Company stock. On February 4, 1916, he bought for $748.75 cash a Distillers bond. On July 13, 1916, fifty shares of Westinghouse stock, paid for out of the mingled fund that he had with A.G. Edwards Sons. Kelley in his speculations in the securities lost the money in the account, including Rosalie Anspach's money, and $12,000 of his own.
At the time of Mrs. Kelley's death, the National Enameling stock, the Liberty bond, and the Helena Gas *Page 501 and Electric bond were in the joint box of Mr. and Mrs. Kelley in the Mississippi Valley Trust Company, in an envelope in her handwriting marked "Rosalie Anspach," and which were afterwards inventoried by Kelley as Rosalie Anspach's property. Kelley first saw the envelope in the fall of 1915. It was the same envelope in which the Western Maryland bonds were sent from Philadelphia. The National Enameling Company stock was purchased for $2662.50 on January 13, 1916, by Kelley, listed in the name of Caroline A. Kelley, and placed in the safe deposit box, held in their joint and several names and control. Joseph M. Kelley and Caroline A. Kelley were husband and wife. They kept a joint bank account, were fifty-fifty partners, and conducted jointly the speculative account with A.G. Edwards Sons, in the name of Joseph M. Kelley, the account in which the proceeds of the sale of the securities of Rosalie Anspach were deposited, and which proceeds were used in their speculations. Speaking of the National Enameling stock, in one of his examinations, Kelley testified: "The title, you might say, changed back here in December, 1917. She (Rosalie Anspach) was merely getting the income. You must understand we simply gave her income off these securities. In other words, I took all her (Rosalie Anspach's) money, used it as I saw fit, and gave her so much income." Again, "We never gave her that stock (National Enameling) until the stock became a six per cent dividend payer." The first dividend, $200, on this stock was paid by check May 15, 1917, to Caroline A. Kelley, deposited to her credit, and shortly afterwards $75 was sent to Rosalie Anspach's account in Philadelphia. November 15, 1917, a dividend check of National Enameling for $200 to Caroline A. Kelley bore this endorsement: "Caroline A. Kelley for deposit only to the account of Caroline A. Kelley, Guardian Rosalie Anspach," etc. On March 20, 1918, check payable to Caroline A. Kelley, for $150, endorsed and deposited to her credit. On May 31, 1918, *Page 502 check to Caroline A. Kelley for $150, endorsed Caroline A. Kelley, Joseph M. Kelley, in his handwriting, Charles Schlem, deposited July 6, 1918. There was also evidence to show that a dividend of $200 was paid October 11, 1917. Mrs. Kelley died June 27, 1918. Kelley testified: "In April or May, 1918, two months before Mrs. Kelley died, was the first time we agreed that the National Enameling stock was the property of Rosalie Anspach." When the stock first began to pay dividends, it was worth $27 a share. At the time it was turned over $52 a share. Relative to the proceeds received from the sale of the Western Maryland bonds and the stock belonging to Rosalie Anspach, aggregating $5773.45, this money was used by Kelley in his speculations, and his contention is to the effect, that they (Mr. and Mrs. Kelley) did not buy or invest the money for the ward, but merely gave her an interest in any securities they had, and she (Rosalie Anspach) got a proportional amount of the profits. They had in their box $12,000 or $13,000 worth of securities. Mrs. Kelley said: "I want to be sure that Rosalie has a good income." Kelley testified the market conditions were so very precarious and he said, "We can't make any investment, we will just give her a certain income."
The Westinghouse stock (bought July 13, 1916 for $2725 with funds from the account in which the ward's money had been mingled), and the Distillers bond, were put by Kelley in the safe deposit box jointly used by Kelley and his wife, but they were never put in the envelope marked "Rosalie Anspach." Kelley testified: "These fifty shares of Westinghouse and this Distillers Security were not in this envelope I speak of. At times we gave her some dividends, so that she was always having income." The Distillers bond was inventoried. The coupon off of that bond, found in the box and inventoried, was sent by Mrs. Kelley and credited to Miss Anspach, and dividends on Distillers bond were turned over to her by Mrs. Kelley. *Page 503
Mrs. Anna W. Woerheide, sister of Mrs. Kelley, testified that Mrs. Kelley told her in 1916 that Rosalie's securities were in Distillers bonds and Westinghouse stock. That in the spring of 1917, she told her that Mr. Kelley persuaded her to put Rosalie's money in National Enameling, but she hoped it would be merely temporary, and always hoped to put it in a permanent legal investment. She repeated that over and over again, both in Mr. Kelley's presence and when they were alone. Again, in a letter dated November 24, 1916, from Mrs. Kelley to her sister Clara Woffington, it was stated that her (Rosalie's) money was then in Westinghouse and Distillers.
E.E. Woerheide, husband of Mrs. Anna W. Woerheide, testified that Mrs. Kelley in April or May, 1917, stated that the ward's money was invested in Westinghouse stock, Distillers bond, and National Enameling stock.
Kelley further testified: "I told you what actually occurred. I am telling you Mrs. Kelley turned around and said, `Rosalie has got $5,040 and giving her this National Enameling stock, which is paying six per cent dividend, gives her much better income than she ever got."
Joseph M. Kelley further testified that the National Enameling and Stamping Company's certificate of stock was made out in the name of Caroline A. Kelley, and the reason she never changed same was for convenience sake. Testimony further shows that Mrs. Kelley owned one-half interest in the Helena Gas and Electric bond of $1,000 and that the ward owned the other one-half, and that Mrs. Kelley after selling the New England Power Company bond from which she realized a total of $619.31 gave to the ward the other half of her personal interest in said Helena Gas and Electric Company bond.
I. The first assignment of error relates to the trial court's failure to give defendant's demurrer to the evidence. *Page 504
Administrator Kelley inventoried the National Enameling stock, the Liberty bond, and the Helena G. E. bond, as the property of Rosalie Anspach, hereinafter called the ward. But as the Liberty bond was purchased with funds received from Philadelphia and not from the proceeds of the securities converted by Mr. and Mrs. Kelley, and as Mrs. Kelley gave Rosalie Anspach her (Mrs. Kelley's) one-half interest in the Helena G. E. bond, we eliminate them from this discussion.
Plaintiff's amended pleading surcharges the settlement of Mrs. Kelley's administrator, claiming fifty shares of Westinghouse stock and a Distillers bond, together with converted dividends and interest, as the property of the ward.
It is contended by defendant that, with respect to the ward's converted securities there arose the relation of debtor and creditor between Mrs. Kelley, as curatrix; and Kelley, and not that of trustee and cestui que trust. It seems to be conceded that Kelley knew that the securities, given him by Mrs. Kelley and by him sold, and proceeds thereof afterwards used by him and Mrs. Kelley in speculation and margin trades, were the property of the ward. This constituted a breach of trust, of which Kelley was cognizant. Both, then, became accountable as joint and several trustees. [Leach v. Gray (Ala.), 77 So. 341; 7 A.L.R. 890; Jeffray v. Towar, 63 N.J. Eq. 530, l.c. 538.]
But says the defendant, this merely gave the ward the right of election — (a) to hold the curatrix liable for principal and interest to the utmost value of the securities deposited with Kelley; or (b) to follow the converted securities as a trust fund and claim all the profits arising from their use. We do not so construe the evidence, but think a very different situation is presented. Between January 17, and March 8, 1916, Mr. and Mrs. Kelley sold securities of the ward for sums aggregating $5773.45, converting the proceeds to their own use. Mrs. Kelley, then, with the consent of Mr. Kelley, desiring *Page 505 to protect her sister, the insane ward, as we think the evidence shows, substituted for the converted fund, the National Enameling stock, the Distillers bond and the Westinghouse stock, purchased for $2662.50, $748.75, and $2725, respectively. To state it otherwise, the above stocks and bond became estate capital. While Kelley seemed to insist, in places, in his examinations, that the stocks and bond were placed in the joint safe deposit box, held in the name of himself and Mrs. Kelley, merely as security, we do not think this is borne out by the evidence. It is undisputed, that, as administrator, he inventoried the National Enameling stock as the property of ward. He unequivocally states that Mrs. Kelley gave the stock to the ward in May, 1918. In one of his examinations Kelley testified that the title to this stock changed back here in December, 1917. Another time he testified: "We never gave her that stock until it became a six per cent dividend payer." Again he stated, "I am telling you Mrs. Kelley turned around and said, `Rosalie has got $5040 and giving her this National Enameling stock, which is paying a six per cent dividend, gives her a much better income than she ever got.'" The evidence further shows that Mrs. Kelley received a dividend check from the National Enameling Company for $200, dated May 15, 1917, which was deposited to her account, $75 of which she forwarded to Philadelphia and credited to the ward's account. On November 15, 1917, she received another dividend check for $200, which check she sent to Philadelphia to the credit of her ward. Again, Kelley stated that he saw this envelope marked "Rosalie Anspach" and in which Mrs. Kelley placed the National Enameling stock sometime in 1915, but did not know when the words "Rosalie Anspach" were written thereon. Considering the evidence, we think it sufficient upon which to base a finding that the National Enameling stock was substituted in part, about March 8, 1916, for the securities converted by Mr. and Mrs. Kelley. *Page 506
As the National Enameling stock was purchased for $2662.50, Mrs. Kelley is to be credited with that sum on the amount converted. This left a balance due the ward, and in lieu of that balance plaintiff claims the Westinghouse stock and the Distillers bond were substituted, the aggregate purchase price of which slightly more than equaled the balance due the ward. The record shows the Distillers bond was inventoried, and we may assume as the property of Mrs. Kelley. The declarations of Mrs. Kelley, repeatedly made in the presence of Kelley, together with the writing, to the effect that Rosalie's money was then in Westinghouse and Distillers, are sufficient to demonstrate that she substituted the securities with Mr. Kelley's consent in lieu of the money converted by them.
It is conceded that the Westinghouse stock was purchased with the mingled funds of Mr. and Mrs. Kelley and the ward. As it is impossible to separate the moieties of the fund and determine with whose money the stock was bought, it will be presumed that the price was paid with the money of the ward. Appellant contends, however, that inasmuch as Mr. and Mrs. Kelley lost $18,000 in their speculative account, with which the funds of the ward were mingled, in electing to take the profits, the ward must also be subjected to the losses. We do not regard the evidence as showing the ward interested in the speculative account. She is merely following trust funds. The evidence goes no further than demonstrating that Mr. and Mrs. Kelley converted funds of the ward to their own use, and, in lieu thereof, substituted and turned over to her certain other property. However, considering the facts, we do not hold to the rule that the ward is subject to losses. We prefer the rule to the effect that where the trust fund was always used by the trustee as his own, and all investments were made by him in his own name, such trustee cannot charge the trust with the losses he has sustained. [Mitchell v. Moore, 95 U.S. 587; 24 L. Ed. 492.] *Page 507
In discussing the questions involved, defendant contends, that as the National Enameling stock was listed in Mrs. Kelley's name and never assigned in writing to Rosalie Anspach, that the title failed to pass until the stock was delivered to curator Woerheide in accordance with the probate court order. To this contention we do not assent, but think the result reached by us falls within the rule enunciated in Harris Banking Company v. Miller,190 Mo. 640, 89 S.W. 629. In that case the court held that, where a donor deposited money in a bank and took a certificate of deposit and assigned that certificate to his housekeeper and stated he wanted her to have the money and asked the president of the bank to keep it, and on his refusal took it to his home, showed it to her, and said, "Now this is yours, but I want to use it while I live," and placed it in his pocketbook and put the book in his shirt and had it sewed in, and it was there at his death, his only purpose seeming to be to draw the interest on it while he lived, the principal to be hers after his death, there was no such delivery as constitutes a gift inter vivos. Nevertheless, her right to the corpus of the gift may be enforced as an express trust, since at the time he deposited the money in the bank he said it belonged to her, and directed the bank to pay it to her alone. So in this case, under the facts in evidence, there was an abundance of proof to show the creation of an express trust on the part of Mr. and Mrs. Kelley, in the substitution of the National Enameling stock, the Distillers bond and the Westinghouse stock, for the converted funds. Such a trust, in personal property, may be shown by parol testimony. [Harris Banking Company v. Miller,190 Mo. 640; Orr v. St. Louis Union Trust Company, 291 Mo. 383, l.c. 403, 236 S.W. 642; Northrip v. Burge, 255 Mo. 641, 164 S.W. 584.] While the facts in the Harris Banking case concede that the certificate of deposit was endorsed to the beneficiary, yet we think this case falls within the broad rule found on page 664, to-wit: "When a person orally or in writing *Page 508 explicitly or impliedly declares that he holds personal property for another, he thereby constitutes himself an express trustee." We have no hesitancy in reaching our conclusion, as the securities substituted were based on a valuable consideration, that of converted funds.
II. Defendant again assigns as error the admission of the deposition and transcript of the prior examinations of Kelley in the probate court, contending that, neither as an individual nor as administrator, could he bind the estate by declarations or admissions.
Adair v. Railroad, 282 Mo. 133, 220 S.W. 920, lays down the general rule that identity of interest, joint enterprise or conspiracy renders the declarations or admissions competent. In Armstrong v. Farrar, 8 Mo. 628, declarations of a party to the record, appearing to show the mental capacity of the deceased at the time of making his will, made after the death of the testator, were held competent against all the defendants since they were not only parties to the record, but identical in interest. The reasoning in this case was held good in the Adair case.
Kelley was the administrator and distribute of the estate. Moreover, he is claiming the Distillers bond as his own. In the capacity of administrator he represented, in this suit, the deceased and the other distributees. While the other distributees may have been proper, they were not necessary parties and a judgment against the decedent's estate binds them. They were, however, represented by the administrator. The interest of all the distributees, so far as the claim against the estate goes, were identical, even though not made actual parties. The declarations and admissions, embracing the relation of facts by a participant in a breach of trust, were contained within the written deposition and transcript of the examination of Kelley, concerning which the right of cross-examination obtained.
Again, counsel for defendant stated in oral argument *Page 509 that there was no doubt but that Mrs. Kelley permitted Kelley to use the funds of the ward as his own, and that Kelley knew the funds were those of the ward. We think these facts are admitted in appellant's written statement, brief and argument. We then feel legally justified in accepting the statements as true. [Pate v. Dumbauld, 250 S.W. 49; State v. Ray, 225 S.W. 969.] Other evidence, than Kelley's, tends to show that the ward's securities were sold and that her money was in Westinghouse stock, Distillers bond and National Enameling stock. A. Woerheide testified regarding what Mrs. Kelley said to him: "She told of bringing the Western Maryland bonds to St. Louis at Mr. Kelley's suggestion. Those bonds were brought out here in October of 1915 and held here waiting a favorable opportunity to sell. The bonds were sold early in 1916. . . . Q. Just state her conversation. A. Well, after the sale of these securities she stated that the money of the ward was invested in Westinghouse stock, Distillers bond and National Enameling stock. Q. Did she at any time mention all three of these securities? A. Yes; in the spring of 1917 she mentioned all three at the same time. Q. Do you know what month in 1917? A. If I recall correctly it was in May, early in May or end of April."
In addition, Mrs. Kelley in a letter admitted that the ward's money was in Westinghouse and Distillers. Under these circumstances the admission of Kelley's deposition and examinations was not prejudicial.
III. What we have heretofore said disposes of the assignment of error relating to the court's refusal to give defendant's declarations of law I, II, III, IV, V, VI and VII. Also to the court's giving one of its own motion, a modification of defendant's No. I declaration of law. It also disposes of the other assignments of error.
The Commissioner recommends that the judgment be affirmed. *Page 510