Sharp v. Garesche , 90 Mo. App. 233 ( 1901 )

GOODE, J.

We are not inclined to follow the appellants’ counsel into the domain of the law in regard to pursuing trust funds. The point on which the tender made by the respondent, as executrix of her husband’s 'estate, was refused, is too technical to require that labor of us. As soon as respondent ascertained that a part of the money which had been placed to her credit in the Boatmans’ Bank by her husband’s clerk, had been collected by him as attorney for the appellants, she filed an inventory in the probate court, charging herself with said fund as executrix, stating that it belonged to appellants, and secured an order from that court directing her to pay it to them, with interest thereon from the date when the collection was made to the date of payment.

We think the probate court did right in carrying this fund into the administration of the estate and immediately directing it, by a proper order, to be paid to those to whom it belonged. That was the best way to handle the matter. Certainly appellants would have had a good claim against the estate- to collect it, even if they might also have proceeded in equity to have a trust declared against the respondent individually. Parker v. Straat, 39 Mo. App. 616. As the money had been paid to Mr. Garesche before he died, and had not been paid by him to the appellants, there was a liability on the part of his estate to them. The agreed statement of facts admits the attorney of appellants refused the tender solely because it was made by respondent as executrix. But the tender was good after it had become assets of her husband’s estate in her hands.

The judgment is affirmed.

All concur.