In re Estate of Trautmann

• Decision Date: 31 July 1923
• Citation: 254 S.W. 286,300 Mo. 314
• Parties: In Matter of Estate of T. J. TRAUTMANN; ARTHUR P. TRAUTMANN v. MOLLIE TRAUTMANN, Administratrix of Estate of T. J. TRAUTMANN, Appellant
• Court: Missouri Supreme Court

254 S.W. 286

300 Mo. 314

In Matter of Estate of T. J. TRAUTMANN; ARTHUR P. TRAUTMANN v. MOLLIE TRAUTMANN, Administratrix of Estate of T. J. TRAUTMANN, Appellant

Supreme Court of Missouri, First Division

July 31, 1923

Appeal from Pemiscot Circuit Court. -- Hon. Sterling H. McCarty Judge.

Reversed and remanded.

Mayes & Gossom and Charles G. Revelle for appellant.

(1) Plaintiff waived the incompetency of defendant as a witness by voluntarily compelling her to be sworn and to be orally examined before the probate court touching her knowledge and information of the matters and things in issue. Ess v Griffith, 139 Mo. 329; Estate of Soulard, 141 Mo. 642; Hoehn v. Struttmann, 71 Mo.App. 402; Brokerage Co. v. Humes, 193 Mo.App. 131; Borgess Inv. Co. v Vette, 142 Mo. 570; Secs. 5412, 5417, R. S. 1919; Strode v. Frommeyer, 115 Mo.App. 220; Killian v. Heinzerling, 114 A.D. 410; Rice v. Waddill, 168 Mo. 99. (2) Wholly independent of plaintiff's waiver of defendant's incompetency as a witness, defendant was competent to testify to her possession, custody and acts of control at the time of and prior to the death of her husband, Dr. Trautmann. Elsea v. Smith, 273 Mo. 407; Burn v. Polar Wave Ice & Fuel Co., 187 S.W. 147; First Natl. Bank v. Payne, 111 Mo. 298; Kille v. Gooch, 184 S.W. 1158. (3) Wholly independent of plaintiff's waiver of defendant's incompetency as a witness, she was competent to testify to her visit to the bank where the deposit box was rented and in which the bonds were placed, and to her access to said box and to her having opened and entered said box during the lifetime of Dr. Trautmann. Weiermueller v. Scullin, 203 Mo. 466.

Ward & Reeves, B. F. Guffy, Elliot W. Major and Peter T. Barrett for respondent.

(1) Doctor T. J. Trautmann being dead, Mollie Trautmann, his widow, was incompetent to testify to any conversations or transactions had with him relative to the alleged gift of the bonds, and such incompetency was not waived by filing of interrogatories by plaintiff, or by the oral examination of said Mollie Trautmann under oath before the probate judge, when she did not admit the allegations in the affidavit, prior to the filing of the interrogatories. R. S. 1919, secs. 63, 66, 5410; R. S. 1909, secs. 71, 74, 6354; Tygard v. Falor, 163 Mo. 234; Carmody v. Carmody, 266 Mo. 556. Such oral examination and filing of said interrogatories were not voluntary acts upon the part of plaintiff, but were necessary steps before plaintiff could proceed and are mandatory requirements. Citations above. (2) Mollie Trautmann is not a competent witness to testify to any admissions or conversations of her husband, whether made to herself or to third parties. R. S. 1919, sec. 5415; Moore v. Wingate, 53 Mo. 409; Moore v. Moore, 51 Mo. 118; Willis v. Gammill, 67 Mo. 731. (3) Mollie Trautmann is not a competent witness in this case to testify in her own favor, her husband being dead, to establish any right or title to any property belonging to him, claimed by her to have been derived by her through gifts from him and alleged to have been made to her in his lifetime. R. S. 1919, sec. 5410; Lieber v. Lieber, 239 Mo. 12 to 28; Bishop v. Button Inv. Co., 229 Mo. 669; Carmody v. Carmody, 266 Mo. 556; Tygard v. Falor, 163 Mo. 234.

OPINION

RAGLAND, J.

This is a proceeding under the statute to discover assets of the estate of a decedent. Plaintiff is a distributee; defendant is the widow of the deceased and also his administratrix. The following excerpt from appellant's statement fairly outlines the procedure followed:

"(The) proceeding (was) originally instituted in the Probate Court of Pemiscot County upon an affidavit by the plaintiff under Section 62, Revised Statutes 1919, to discover assets. Upon the filing of the affidavit a citation compelling the defendant's appearance in court was duly issued and served upon her. Whereupon she appeared, . . . denying the allegations of the affidavit in so far as they charged that she was wrongfully withholding a certain automobile, diamond ring, household furnishings and Government bonds in the sum of $ 14,000, and asserting title and ownership to said property under and by virtue of a gift thereof to her by her deceased husband, Dr. Trautmann, during his lifetime. . . . She was, at the instance of the plaintiff, sworn, . . . and was orally examined at great length by plaintiff touching and concerning her entire knowledge and information of the title and ownership of said property. The direct examination was conducted by plaintiff's own counsel, and not by the probate court, and in plaintiff's examination of her he required her to testify as to the circumstances of the gift, the conditions under which it was made, the place and time at which made, the persons present when made, the language of the donor at the time he made the gift, the delivery to her of the possession, her subsequent custody and control thereof, and the use to which she applied it, and, in fact, examined her as fully and exhaustively concerning every phase, fact and circumstances as could be inquired into.

"Thereafter, plaintiff filed his formal interrogatories after which, and in due time, defendant filed her formal answers thereto. The case was tried in the probate court before a jury, which returned a verdict finding that the gift had been made during the lifetime of Dr. Trautmann, and that the defendant was the owner of the property in question at, and prior to, the death of the former owner, Dr. Trautmann. An appeal was taken by the plaintiff to the circuit court, where the case was heard de novo by a jury, which returned a verdict . . . finding that the Government bonds in the sum of $ 14,000 had not been given to her (the defendant), and that at the time of the death of Dr. Trautmann he was the owner thereof, and that said bonds should be inventoried as assets belonging to his estate."

On the trial de novo in the circuit court the defendant offered herself as a witness. After she was sworn and had testified as to the date of her marriage to Dr. Trautmann and the date of his death, this question was then propounded to her by her counsel: "During the time of your marriage to Dr. Trautmann, what, if anything, did he do in the way of giving to you and delivering possession of fourteen thousand dollars worth of bonds?" The question was objected to on the ground that the other party to the contract or cause of action was dead. On the question of whether or not the incompetency of the witness had been waived, defendant offered a transcript of her testimony given in the probate court prior to the filing of the interrogatories. The circuit court held that there had been no waiver and sustained the objection. The correctness of that ruling is the question presented for determination on this appeal.

I. It is conceded, as it must be, that defendant was incompetent to testify to any conversation or transaction had with her husband, he being then dead, relative to the alleged gift of bonds. Such incompetency, however, could be waived, and the question here is whether plaintiff did waive it by having defendant sworn and orally examined touching the entire transaction between her and her husband, prior to the filing of the interrogatories. Respondent takes the position that the oral examination of defendant in the probate court was a necessary procedural step, with reference to which he had no choice, and that compliance by him with a mandatory provision of the statute could not have operated against him as a waiver in any respect, citing Tygard v. Falor, 163 Mo. 234, 63 S.W. 672, and Carmody v. Carmody, 266 Mo. 556, 181 S.W. 1148.

The second section of the statute under which the proceeding was had (Sec. 71, R. S. 1909) is as follows:

"If the party so cited does not admit the allegations in the affidavit, he shall be examined under oath, after which, at the instance of the administrator or executor, other witnesses may be examined both for and against such party; but before such other witnesses shall be examined, interrogatories shall be filed in writing, to be answered also in writing by the parties cited."

Great emphasis is placed upon the language, "shall be examined under oath;" it is contended that it is mandatory and jurisdictional; in other words, that a compliance with its provisions is a condition precedent to the framing of issues by written interrogatories and answers and a trial of such issues.

Our statute for the discovery of assets of the estates of deceased persons is an evolution. As originally enacted, in 1825, it provided that if the executor or administrator, or other person interested in any estate, represented on oath to the probate court that he had good cause to believe, and did believe, that any person had concealed or embezzled any goods, chattels, etc., belonging to the estate, the court was authorized to require the appearance of such person before it and to examine him on oath for the discovery of same. It did not contemplate the calling of witnesses or the trial of any issue with respect to the title or ownership of assets alleged pursuant to its provisions to have been concealed or embezzled. It was purely ex parte and designed solely as a summary means of discovery. By amendment from time to time, the scope and purpose of the statute have been so broadened that, in accordance with its summary provisions, not only may the discovery of assets be effected but the right of property in the property claimed as assets can be tried and adjudicated as between the estate and the person having such property in possession, or under his control, even if such person be the executor, or administrator, himself, but claiming adversely to the estate; and if the issues be determined in favor of the estate,...