Stoff v. Schuetze. Reese as guardian of Emma Reese and Louis Reese, the appointment of "John Schuetz" as administrator de bonis non of the estate of John D. Reese, and the approval of the first and final settlements filed by said Schuetz as such administrator. Plaintiff further introduced in evidence the last will of John Schuetze probated February 27, 1915, which, after directing the payment of debts, funeral expenses and certain legacies, devised the residue of his estate to his wife, Maria Schuetze. Louis Reese, being recalled, testified for plaintiff that hundreds of times he had heard John Schuetze say that when he married the mother of witness he had but $100, with which he bought a team and wagon, and that statements of that character were often made to others, since deceased. On behalf of defendant Mary Schuetze, and over the objection of plaintiff, there was introduced in evidence a deed of trust dated November 1, 1873, from Frederick Peters to M. B. Strickland, conveying the 31-acre tract as security for notes aggregating $700, which deed of trust was mentioned in the warranty deed dated March 16, 1874, by which Frederick Peters conveyed said 31-acre tract to "Johann Schuetz," and wherein it was recited that "the said Johann Schuetz assumes to pay said deed of trust." Defendant Schuetze also offered in evidence, over the objection of plaintiff, another deed of trust, dated September 1, 1862, from John Schuetze and Maria, his wife, to Minna Van Spankeren, conveying the 30-acre tract as security for a note for $400, together with a certificate of payment of said note and of release of the said deed of trust. For plaintiff, in rebuttal, defendant Reese testified that while his step-father, John Schuetze, was administrator, he heard him say that he and the mother of witness were going to Augusta "to pay the $400 debt that my father had borrowed from Spankeren." The final settlement filed by John Schuetze, as administrator of Stoff v. Schuetze. the estate of John D. Reese, shows a disbursement as follows: "No. 12 By all. Charles Spankern $400. "By all. Interest 1 year & 9 months $70." The foregoing somewhat fully outlines the case made. Other matters of evidence will be adverted to in the course of the opinion. The court found the issues in favor of defendant Mary Schuetze, and against plaintiff and defendant Reese, rendered a judgment and decree in favor of defendant Mary Schuetze, and dismissed plaintiff's petition. From this judgment and decree plaintiff has appealed. I. Plaintiff contends that the court erred in finding for defendant Mary Schuetze on the first count of the petition, urging that the evidence shows that the 30-acre tract was held in trust for plaintiff. Administrator: A careful review of the evidence discloses that this tract was undoubtedly purchased by John Schuetze, at the sheriff's sale under execution issued upon the judgment theretofore rendered in favor of the estate of John D. Reese, for the benefit of the said estate. The amount of said judgment was $112.01. The voucher filed in connection with the final settlement of the estate of Reese shows interest on said judgment amounting to $5.61. The said voucher further shows cost paid to the sheriff, exclusive of $2 for deed, in the sum of $17.75. The sum total of the judg ment, interest and costs is $135.37. The consideration recited in the deed from Sheriff Maupin to Schuetze is $135, or within 37 cents of this total. The record does not disclose that the $135 was paid by Schuetze out of his individual personal funds. The uncontroverted testimony of Louis C. Reese was that Schuetze stated that "there was no one to bid on it; during the war there was nobody wanted to buy land, and so he bid it in for the estate for costs." It clearly follows that in making the purchase, and taking title in his own name, Schuetze in reality bought for the estate. Being administrator Stoff v. Schuetze. de bonis non of the estate of Reese at the time, Schuetze became a trustee for those entitled to the said estate. [Harney v. Donohoe, 97 Mo. 141; Hynds v. Hynds, 274 Mo. 123; Patterson v. Booth, 103 Mo. 402; 24 C. J. 200, 201.] As stated in Harney v. Donohoe, supra, l. c. 144, the rule is that "an executor or administrator is a trustee, and when he purchases property with funds of the estate, he holds the property in trust for the estate and those entitled thereto; and it makes no difference whether the deed be to him as executor or administrator or not." And as further enunciated in Hynds v. Hynds, supra, 1. c. 134, "When a trustee purchases property with trust funds and takes the title in his own name a trust results for the benefit of the trust estate and this may be followed in favor of persons not named in the deed in proportion to the amount invested by each. That this rule applies to executors, administrators and guardians of minors, as well as to other trustees, goes without saying." Furthermore, in the instant case the land purchased was in fact taken in payment of the debt of Weyrick to the Reese estate. Such being the case, Schuetze, the purchaser, took title in trust for the heirs and creditors of the estate. Thus in Mabary v. Dollarhide, 98 Mo. 198, where an administrator purchased lands under a judgment in an attachment proceeding instituted by him for a debt due the estate, taking the deed to himself as administrator, it was held that title passed to him as an individual, but that he held it in trust for the heirs and creditors of the estate. That John Schuetze was holding title for the benefit of plaintiff and defendant Louis C. Reese is reflected by the statements made by him to said Reese during the time that Reese and plaintiff herein were living with Schuetze and their mother upon the homestead farm. The various conversations had by Reese with Schuetze, wherein the latter said that Reese and the plaintiff "should let him have the use of that land while he lived," that he wanted to be boss of it and have the use of the land," that "the 54 acres, we would get possession of Stoff v. Schuetze. that when mother died, and the 30 acres, we would get possession of that when he died," that "he would see that we would get what was coming to us when he died, and not go to no court or have anything to do with lawyers," all tended to establish that he was holding the land in trust for plaintiff and defendant Reese. The conversations between the mother of plaintiff and defendant Reese and John Schuetze, testified to by Reese, wherein Schuetze said, "They will get it all anyway when I die, there is no use to make any writing," tends to emphasize the fact that Schuetze fully recognized the rights of the children of the former Mrs. Reese. And the record does not reveal that Schuetze at any time prior to his death made claim of ownership to the 30acre tract adverse to plaintiff and defendant Reese. Learned counsel for defendant Schuetze urges, however, that defendant Reese was not a competent witness, John G. Schuetze being deceased. When applied to the testimony under consideration, such is not the Admissions. law. The declarations of Schuetze were made while he was in possession of the land, were in effect admissions in disparagement of his title, and were accordingly competent against him and all claiming under him. [Anderson v. McPike, 86 Mo. 293; Boynton v. Miller, 144 Mo. 681; Meier v. Meier, 105 Mo. 411; Wood v. Hicks, 36 Mo. 327; 1 Greenleaf, Evidence (16 Ed.) sec. 108.] Counsel for defendant further urges that plaintiff's action is barred by the thirty-year Statute of Limitations. This defense, however, is not here available. As we have said supra, John Schuetze, being administrator of the Reese estate at the time of purchase of the 30-acre tract, became a trustee for the heirs of Reese. Being such trustee, the Statute of Limitations does not apply as against distributees entitled to the estate. Limitations. Thus in Rubey v. Barnett, 12 Mo. 3, 1. c. 8, the doctrine was announced, that "an administrator, being a trustee, cannot set up the Statute of Limitations in bar to the next of kin or persons entitled to the dis Stoff v. Schuetze. tribution of assets." To the same effect is Decouche v. Savetier, 3 Johnson's Chan. (N. Y.) 190. And again in Dillon v. Bates, 39 Mo. 292, 1. c. 301, the rule was thus expressed: "To a suit by a distributee for his share against an administrator, holding the fund in trust, the Statute of Limitations does not apply. No lapse of time is a bar to a direct trust, or a fraud, as between trustee and beneficiary." Moreover, the fact that Schuetze advised plaintiff and defendant Reese not to bother about the land while he was living, that he warned them against consulting lawyers and admonished them not to go to court, coupled with his assurances that they would get what was coming to them when he died, might justly be said to have had the effect of causing them to rely upon those assurances and of restraining them from investigating and discovering the true status of the title to said land. In this connection defendant Reese testified that he and his sister always took Schuetze at his word, "We never thought we had to investigate anything, and that they first investigated as to the title to the 30 acres about three months after Schuetze's death, which occurred in February, 1915. Such being the case, in view of the previous course of conduct of Schuetze, they should not be held chargeable with notice that he was claiming to hold adversely to them until that time, that is, the time of his death, or the time of probate of his will, which was February 27, 1915. The running of the statute was accordingly postponed until then. [Buren v. Buren, 79 Mo. 538; McMurray v. McMurray, 180 Mo. 526; Boynton v. Miller, 144 Mo. 681; 19 Am. & Eng. Ency. Law (2 Ed.) 243.] As stated in Buren v. Buren, supra, 1. c. 542, the rule is that "in implied trusts the Statute of Limitations begins to run as soon as the facts are brought to the knowledge of the cestui que trust, so that he can take steps to enforce the trust." And that rule is applicable here. It is finally insisted that the final settlement filed by John G. Schuetze as administrator de bonis non of the estate of John D. Reese discharged Schuetze of all |