Townsend v. Schaden

Decision Date04 June 1918
Docket NumberNo. 19175.,19175.
PartiesTOWNSEND v. SCHADEN.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

Action in probate court by Cornelia Town-send against M. L. Schaden, administratrix of estate of George Townsend, deceased. From a judgment for defendant, plaintiff appealed to circuit court; and from judgment of circuit court for plaintiff, defendant appeals. Affirmed.

This action was commenced in the probate court of Jackson county, Mo., on January 8, 1914, in the following form:

                "Estate of George Townsend, Deceased, to Cornelia
                                Townsend, Debtor
                To one hundred shares of the Central States
                  Bridge Company, par value one hundred
                  dollars .....................................  $10,000
                To thirty-two bonds, Citizens' Street Railway
                  Company, Indianapolis, par value one thousand
                  dollars .....................................   32,000
                To eight water bonds, city of Indianapolis
                  Indiana, par value one thousand dollars .....    8,000
                                                                 _______
                   Total ......................................  $50,000
                

Before the case was finally submitted to the jury, plaintiff reduced her demand for the par value of the 32 Citizens' Street Railway Company bonds, of Indianapolis, Ind., from 832,000, to 12 of said bonds of the alleged value of 812,000. She also withdrew from the consideration of the jury, as shown by her instruction D, that part of her claim relating to the 100 shares of lie Central States Bridge Company, of the alleged value of 810,000.

From the judgment of the probate court in favor of defendant, plaintiff appealed to the circuit court, where the case was tried de novo, at the November term, 1914, before a jury. The trial began on January 5, 1915, and thereafter resulted in a verdict for plaintiff in the sum of $20,000, upon which judgment was entered in due form.

There wall substantial evidence offered upon the part of plaintiff tending to show that George Townsend, who was a brother of plaintiff, on or about the 25th day of October, 1907, had met with success as a railroad builder, and had accumulated at that time valuable bonds and notes of the face value of $250,000; that he and plaintiff were twin sister and brother, and for many years they made their home with their sister, Mrs. Anna Townsend Davis; that plaintiff, and her brother George, were dear to each other, and traveled a great deal together.

Plaintiff introduced in evidence her Exhibit G, shown to have been in the handwriting of George Townsend, which reads as follows:

                               "Indianapolis, Oct. 25, 07
                

"My Dear `Sisters: I have this day paid off my loan at the Fletcher Bank and am not now honestly in debt to anyone in the world and I am entirely out of business. I have now in my safe deposit box at Fletchers, 150 Indpls. Water, Citizens Ry and other bonds paying me 5 per cent. interest, besides 100 New Orleans Ter. notes in the 1st Natl. Bank of N. Y. and other investments, and so I have decided to carry out my long-promised intention made so often to you and Nellie of adding to the bonds you already have so that you will both be provided for should bad luck come to me or in case m my marriage and so I will today take with me or send to you in Chicago, as a, present, sixty (60) of the Water and Citizens bonds, forty (40) of which will be for Nellie and twenty (20) for Anna, because Nellie is more dependent on me than you are. You must take good care of these bonds and do not change the investment into other bonds or stock without first advising with me. These bonds all pay 5 per cent. per annum; the water bonds sell around par and the Citizens sell a few points higher but I consider them equally safe as an investment. You can divide the two kinds as you see fit so that Nellie gets a total of 40 and you get the 20. I take pleasure in doing this as it will still leave me a sufficient income.

                   "Love to you both,         Brother George
                

"This is a list of the numbers of the bonds I am giving you so in case anything happens in transit payment might be stopped. The 40 water bonds numbers 76, 77, 196, 311, 312, 352, 1413, 1885, 1942 to 46, 1975 to 79, 2011, 2012, 2013, 2004, 2096, 2097, 2107 to 11, 2134, 2135, 2144, 2145, 2148 to 53 and 2202. The 20 Citizens bonds are numbered 6, 24, 25, 26, 27, 133, 134, 142 to 145, 284, 290, 393 to 397, 402 and 403. George.

"Since writing the above I find it is too late to express these bonds and catch my train so I will leave them here at Fletchers and put a slip in the pkge. of 40 water bonds as being the private property of Nellie and a slip in the pkge. of 20 Citizens bonds as being the property of Anna and I will either continue to hold them here for you or send them to you at a later date. Yours, George."

A book was identified, by Mrs. Davis, as a diary of George Townsend, and in his handwriting under dates of October 24th, 25th, 26th. It was introduced in evidence, and reads as follows:

                                "October 24th
                  "Arrived in Indianapolis at 3:05 p. m.
                  "Took dinner with Mrs. Schaden.
                  "Took room at Columbia Club."
                               "October 25th.
                

"Paid Fletcher my last loan and put 35 Water, 15 Citizens 30 N. W. & 10 U. T. bonds in my deposit box. Took 40 Water & 20 Citizens as a present to my sisters in Chicago. Arrived home at 8:00 p. m."

                              "October 26th.
                

"Gave Sister Nellie 40 Water bonds and to Sister Anna 20 Citizens. Had hair cut in the p. m. Played cribbage at home in the evening with the folks."

Mrs. Davis identified Exhibit 8 as in the handwriting of her brother George, and says she received it through the mail. It was offered in evidence, and reads as follows:

"Grand Hotel, Indianapolis, Jany. 3, 1910.

"My Dear Sisters: It is with a feeling of great relief that I am sending back to you today by Am. express thirty-two of the $1,000 bonds of the Citizens 5.s Street Ry being a part of the 60 bonds that I took from those belonging to you in the safety deposit box in Chicago. I will send you 18 more bonds tomorrow and the remaining 10 bonds shortly. I want Nellie to receive back these 32 bonds and Anna can take her 20 out of the remainder I am to send.

"I trust you will forgive me for having taken the 60 bonds away from you against your protest. Please put these 32 bonds in a box in your own names. With love, George."

Mrs. Davis testified: That the 32 bonds referred to in above letter were delivered to herself and plaintiff. That she handed them to George Townsend, and they were put in the box. This occurred some time in December, 1909, or early in January, 1910. That these 32 bonds, in September, 1911, were sent by her to defendant for George Townsend. That this was the last time she ever saw them. That she could not give the exact date when she received Exhibit 6, supra, nor whether she had it in her possession before the death of her brother George. That she found it in the desk at home with other papers within the last year. Witness said her brother George felt grieved over plaintiff's health, and gave her 17 bonds for her immediate wants, and said he would add 3 more to them and that he would have that amount taken from the will; that plaintiff still has the 17 bonds. On cross-examination, Mrs. Davis testified that her brother George was a railroad builder, and had built many railroads; that he was a careful and successful business man; that he engaged in building railroads in Indianapolis, Michigan, and the Holy Land; that he also built part of the Canadian Pacific road; that the first time she recalls having seen Exhibit 6 was in May, 1910; that it was then in her husband's desk in her room; that her brother George was very ill in January and February 1910, and went to a sanitarium; that he had a nervous breakdown; that plaintiff never had any bonds prior to October 25, 1907. Mrs. Davis testified in chief that in October, 1907, her brother George came to her house, and in the presence of plaintiff said he had brought to Cornelia 40 water bonds, and 20 for her; that they thanked him, and he then said they should be taken right over to the safe deposit; that the above occurred about 8:30 o'clock in the morning; that she did not see the bonds, but simply the package; that he took them out of his satchel, put them in his pocket, and left; that she did not see the bonds until about one week afterwards, when she saw them in the box at Commerce Safety Deposit Company; that she had access to the box; that she had two boxes, and had the only key to each box at that time; that she had had the key since 1905; that when she went to the bank about one week after the above conversation, she then saw one package containing 40 water bonds and one containing 20 Indianapolis Railway bonds; that the memorandum on the package was in the handwriting of her brother George. Witness testified that, while she and her brother George were in the South he spoke of the pleasure it had afforded him to have Cornelia provided with an income-bearing fund. This was in January, 1908. The bonds remained in the deposit box until March, 1908, when they were borrowed by her brother.

Ward S. Arnold, former partner of George S. Townsend, met the latter in Chicago in March, 1908. He testified that George then told him "he had given his sisters a considerable amount of bonds, and that to raise the amount of money that would be required he would have to borrow these bonds back." He said George then told him, "he had given Cornelia a considerable sum, more than his sister, Mrs. Davis, due to the fact that she was single and had no one to help look after her, like her other sister, Mrs. Davis," etc. Wm. R. Townsend testified that in September, 1908, his brother George told him, "he had presented his sisters with enough bonds to keep them comfortably until the end of their lives." He said he was then in condition to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT