Equity Jurisdiction in Probate Matt ers Under the New Code

two more appellate court opinions indicate the continuing uncertainty, and thus emphasize the need for early clarification by the Missouri Supreme Court of probate court equitable jurisdiction under the new probate code.They are the Mathews case 1 by the Supreme Court in May, 1963, and the Myers case 2 by the St. Louis Court of Appeals one month later.Such jurisdiction was considered to a limited extent in each case.In Mathews the subject was discussed but it was held unnecessary in that case to decide the extent of the broadened equity powers.Myers held that under the new code the probate court had jurisdiction to adjudge that a decedent was not the owner but was a mere trustee of money in his possession or control and to enforce the trust if the decedent kept the money in "a separate fund established capable of identification, either in a bank account or elsewhere," 3 but if he had commingled the trust money with his own, the probate court had no jurisdiction to enforce the trust.Such distinction appears to be expressly contrary to the decision of the Supreme Court in Lolordo 4 where a discovery proceeding in the probate court was certified to the circuit court (presumably as authorized by Section 481.130) and hence the circuit court had no greater jurisdiction than the probate court.There, a commingled bank account was impressed with the trust of decedent's money.And this even before the new code.Furthermore, Lolordo was cited approvingly on the subject of probate court equity jurisdiction in Mathews.Hence, detailed examination of Mathews, Myers and Lolordo seems called for here.IJn Mathews, the plaintiff-executor filed an action in the circuit court alleging that defendants had agreed with the deceased, Martha White, that upon her causing defendant Esther White's name to be added as joint depositor in certain bank accounts then in Martha's name, the defendants would not draw from said accounts