Simmons v. Friday , 359 Mo. 812 ( 1949 )

ON MOTION FOR REHEARING OR TO TRANSFER. The main complaint in appellants' motion is that the statement in the opinion, last paragraph, that the relationship of creditor and debtor, if there be liability, came into existence on or prior to June 22, 1931, causes the opinion to conflict with Re Franz' Estate, 359 Mo. 362, 221 S.W.2d 739, and to deprive appellants of their property without due process of law, stressing Shelley v. Kraemer, 334 U.S. 1, 14, 68 S. Ct. 836, 92 L. Ed. 1161; and Brinkerhoff-Faris Trs. Svgs. Co. v. Hill,281 U.S. 673, 679, 50 S. Ct. 451, 74 L. Ed. 1107. We think not.

The statement appears in the discussion involving the statute of limitations in connection with the absence of any relationship owed the Trustees by the beneficiaries staying limitations. Our statutes of limitations apply to suits in equity as well as actions at law. Ludwig v. Scott (Mo.), 65 S.W.2d 1034, 1035[1]; Rogers v. Brown, 61 Mo. 187. Appellants, the Trustees, sought $810,001.22 compensation for services as Trustees in a proceeding instituted in the probate court in Re Franz' Estate, supra. In the instant case appellants seek a reasonable compensation, a total of $88,309.75 according to the submitted final account. The respondents in Re Franz' Estate, supra, contended, among other things: "Courts of equity have exclusive jurisdiction to allow compensation to trustees of a nontestamentary trust"; and we considered a court of equity and not the probate court was the proper forum to determine the controversy under the record there presented. Re Franz' Estate, supra. Consult 4 (Pt. 2) Bogert, Trusts and Trustees (1948), 206, 207. We find no statement in Re Franz' Estate, supra, whether under the facts and issues of that record the relationship was that of creditor and debtor or not. Under the instant record the Trustees made delivery of the trust res in conformity with the trust instrument and submitted a final account bearing date of June 22, 1931. They filed the instant action for compensation twelve years later, August 23, 1943. The beneficiaries did not receive and hold the trust res in any fiduciary capacity for the benefit of the Trustees. The statute of limitations started to run against the Trustees' claim not later than when the trust res was delivered in termination of the trust, which occurred on or prior to said June 22, 1931. If the cases stressed by appellants have application to an action timely instituted, the delay of twelve years by the Trustees subjected their claim for compensation, whether at law or in equity, to the defense of the statute of limitations and they may not successfully [100] charge a denial of due process. There is no accounting in the instant record of any transactions subsequent to those in the final account of June 22, 1931, submitted by the Trustees for the approval or disapproval of the court.

The motion for rehearing or, in the alternative, to transfer to Court en Banc, is overruled.