Cremer v. May

• Decision Date: 24 May 1928
• Parties: EXONA CREMER, ADMINISTRATRIX OF THE ESTATE OF SERENA MAY, DECEASED, APPELLANT, v. C. L. MAY, RESPONDENT. [*]
• Court: Missouri Court of Appeals

8 S.W.2d 110

223 Mo.App. 57

EXONA CREMER, ADMINISTRATRIX OF THE ESTATE OF SERENA MAY, DECEASED, APPELLANT, v. C. L. MAY, RESPONDENT. ^[*]

Court of Appeals of Missouri, Springfield

May 24, 1928

Appeal from Circuit Court, Greene County.--Hon. Guy D. Kirby, Judge.

AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED (with directions.)

George Goad and Herman Pufahl for appellant.

Barbour McDavid & Barbour, Addison Brown and Frank S. Sea for respondent.

BRADLEY J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.

This cause originated in the probate court of Polk county and is a proceeding under section 62, Revised Statutes 1919, to discover assets. At a previous term we handed down an opinion in this cause, but granted a rehearing. We shall refer to appellant as plaintiff and respondent as defendant. Serena May died intestate in Polk county on November 23, 1921. February 3, 1922, plaintiff, a granddaughter of deceased, was appointed administratrix of the estate. August 5, 1922, plaintiff filed affidavit to discover assets. On same day citation issued directed to defendant a son of deceased returnable on August 14, 1922. Defendant in due time made return or answer to the citation. Thereafter interrogatories and answers thereto were filed. The issues made on the interrogatories and answers were tried without a jury in the probate court and resulted in a finding that defendant was withholding from the estate the following property: A note for $ 1000 dated August 31, 1920, payable to deceased, due two years after date and signed by A Pemberton; a note for $ 850 dated September 21, 1920, payable to deceased, due two years after date and signed by R. A Morrow; and $ 1045 in money. Defendant appealed to the circuit court from the judgment of the probate court. February 9, 1923, the venue was changed from Polk to Greene county. January 22, 1924, the cause was tried in the Greene county circuit court before the court and a jury and resulted in a finding that defendant was withholding from the estate the Pemberton and Morrow notes and $ 1130.25 in money. A motion for a new trial was sustained, and the cause passed from term to term until June 1, 1926, when it was again tried to a jury and resulted in a finding that defendant was withholding the two notes and $ 1045.25 in money. Motion for a new trial was filed and sustained and plaintiff appealed from the order granting a new trial.

The money alleged to be withheld consisted of two separate items, viz.: Money amounting to $ 1000 which, it is claimed, deceased had at the time of her death; and (2) $ 45.25, the proceeds of some household goods which defendant sold after the death of deceased. The new trial was granted because the court was of the opinion that error had been committed in giving a peremptory direction to find for plaintiff and against defendant on the $ 1000 item. The court also gave a peremptory direction to find for plaintiff on the $ 45.25 item, but the correctness of this direction is conceded.

It is contended by plaintiff that there is no evidence of a substantial nature to make an issue of fact of the $ 1000 item and that there is no other ground alleged in the motion for a new trial sufficient to support an order for a new trial, and that, therefore, the judgment set aside should be reinstated. On the other hand defendant contends that there was substantial evidence to make an issue of fact on the $ 1000 item and also that the court erred in giving certain instructions for plaintiff.

An appellate court will not reverse an order granting a new trial, which order specifies an insufficient ground, when it is shown that other sufficient grounds, complained of in the motion for a new trial, exist, but the burden is upon the respondent to show such other sufficient ground or grounds. [Roney v. Organ, 176 Mo.App. 234, 161 S.W. 868.] Hence we have two questions, viz.: (1) Was there sufficient evidence on the $ 1000 item to make an issue of fact? and (2) was error committed in giving instructions, complained of by defendant in his motion for a new trial and urged here as being sufficient ground to support the order granting the new trial?

Serena May left, as her only heirs, two sons, one daughter and three grandchildren by a deceased daughter. All the heirs are adults and all reside in other states except defendant, a son, and plaintiff, a granddaughter. Plaintiff resides at Holden, Missouri, in Johnson county and defendant resides at Bolivar, Missouri, in Polk county. Deceased had made her home in Polk County for many years, but spent some years with her son in Iowa and daughter in California, but for seven or eight years next prior to her death she remained at Bolivar. When well, deceased was active, and, for the most part, looked after her own business, but as age advanced and health declined defendant assisted in or looked after her business. At the time of her death deceased was maintaining her own home and was not residing in the home of defendant.

Defendant contends that deceased, his mother, a short time prior to her death, gave him the two notes above mentioned and the $ 1000 in money, and that by reason of such gift said notes and money became his absolute property. The learned trial court submitted to the jury the issue on the gift of the notes, but as stated, gave a peremptory direction to find against defendant on the alleged gift of the $ 1000 in money.

Defendant assumed the burden and, to support his contention that his mother gave him the notes and the $ 1000 in money, offered evidence as follows: Mrs. May, defendant's wife, testified that on a certain morning about three weeks before the death of deceased defendant came from his mother's home and had in his possession the two notes in question here; that defendant handed the notes to witness and that she "looked at them;" that about a week before the death of deceased, she, witness, had a conversation with deceased in which conversation deceased stated to witness that she, deceased, had "given Charley (defendant) these two notes and what money she had in the bank. . . . She said that she had given the other children all she intended for them to have; that she had helped the other boys so much and raised these two grandchildren and graduated the oldest one; that was her part, and she had never done nothing for Charley and she gave him these two notes and money; she wanted him to have it while she was living and in her right mind."

On cross-examination Mrs. May was asked and answered as follows: "Q. Do you know anything about the $ 1000 that he drew out on October 17th? A. She told me she told him to go draw it out.

"Q. She told you she told him to go draw that out? A. Yes, she wanted him to have it.

"Q. When did she tell you that? A. About a week before she died.

"Q. Did she tell you then that she told him away back in October to go draw that money out? A. No, I believe she did too; I can't remember about this; about a week before she died she told me; yes.

"Q. About a week before she died she told you she was giving it to Charley? A. Yes, about a week before she died she told me she had given the money to Charley.

"Q. How much money did she say she had given him? A. She didn't say.

"Q. She didn't say whether it was $ 1 or $ 1000. A. She just said, 'I told Charley to go and get what money there was in the bank.' She said she had given it to him.

"Q. She said that about two weeks before she died. A. She told me about a week before; and he come home with the notes about three weeks before that.

"Q. You didn't see the $ 1000 he had at that time in cash? A. I never seen the money at all. I saw the notes and the pocket book.

"Q. That is all you saw? A. Yes, sir."

Mrs. Caroline Sells, a witness for defendant, stayed with deceased at night during her last illness and waited on her. This witness had a conversation with deceased, relative to her property, but the time of the conversation is not fixed, except that it was prior to the time when Dr. Roberts went to the home of deceased to witness her will and as appears, infra, this was three or four weeks prior to the death of deceased.

This witness was asked and answered: "Now then, if Mrs. Serena May said anything to you about any of the personal property belonging to her just go ahead and relate just what she said? A. Yes, sir. Well, she turned everything over to Charley and said it was to be his.

"Q. Now just go on and relate just what she did in your presence if anything? A. Well, she turned her watch over to him, and turned her pocketbook over to him, and she turned those papers over to him, and she stated there was one paper in the bank.

"Q. Now, describe as near as you can what kind of pocketbook it was that she turned over to Charley? A. Well, there was one pocket-book she turned over to Charley that was about that size (indicating), and then there was a hand bag that she turned over to him; I called it a hand bag. There was a pocketbook that she turned over to him and there was another one that she turned over to him that might be called a pocketbook, but I would call it a hand bag. The pocketbook was not in the hand bag; it was separate. It contained papers that looked about the size of notes. I suppose it would be something like eight inches in length and that would be about the depth of it too, something near about square. When she gave these to Charley she said 'Charley, I will soon be gone. It is all yours.' She was in her right mind up until the very last. I was present one night when Dr. Roberts was in there. That night she stated that she had put this paper in the bank and that it was to go just like that paper stated. She sent for me to come that night and when I got over there she testified about the...