Adamack v. Herman

• Decision Date: 01 December 1930
• Docket Number: No. 17002.,17002.
• Citation: 33 S.W.2d 135
• Parties: ADAMACK v. HERMAN.
• Court: Missouri Court of Appeals

33 S.W.2d 135

ADAMACK v. HERMAN.

No. 17002.

Kansas City Court of Appeals. Missouri.

December 1, 1930.

Error to Circuit Court, Buchanan County; John D. McNeely, Judge.

"Not to be officially published."

Action by William Adamack, administrator, against Anthony J. Herman. Decree for defendant, and plaintiff brings error.

Affirmed.

Charles F. Keller and S. P. Reynolds, both of St. Joseph, for plaintiff in error.

Groves & Watkins and Fred M. Wanger, all of St. Joseph, for defendant in error.

ARNOLD, J.

This is an action instituted by plaintiff, as administrator of the estate of Mary Adamack, deceased, to recover $1,600, an alleged balance unaccounted for, of a sum of $3,000, which passed into the hands of defendant while decedent was yet alive.

The petition charges that on or about April 2, 1925, Mary Adamack was, and for some time prior thereto had been, insane and incapable of managing her own affairs, which fact, at said time, was well known to defendant; that about said date, Mary Adamack was the owner and in possession of about $3,000 in money which was her absolute and separate property; that on said date defendant Anthony J. Herman, without authority of said Mary Adamack, insane, and without authority of law, took possession of said $3,000, and retained possession of the same until after plaintiff was appointed administrator of the estate of Mary Adamack, when defendant turned over to the administrator the sum of $1,400 of said $3,000; that ever since April 2, 1925, defendant has had in his possession $1,600 of said $3,000, which he has failed and refused to pay; that defendant has unlawfully, fraudulently, and purposely converted said $1,600 to his own use; that said conversion took place in Buchanan county, Mo. Judgment is asked in the sum of $1,600, and interest from April 2, 1925, and for costs.

Defendant interposed an equitable defense and by answer alleged that the fund he had received from Mary Adamack, and which had not been paid over to the administrator of her estate, had been used for the support and maintenance of the decedent, and expended by defendant in accordance with directions given him by William Adamack, who, after the death of Mary A. Herman, wife of defendant, was the sole and only heir at law of decedent, Mary Adamack; and that the funds had been expended at the instigation and request of said William Adamack, and were not needed for the payment of the debts of Mary Adamack; that the same would be inherited by said William Adamack, sole distributee, and therefore that William Adamack should be estopped to make his claim against defendant.

The answer is, first, a general denial of each and every averment contained in the petition, except that Mary Adamack died on October 4, 1927, and that plaintiff on October 11, 1927, was duly appointed administrator of her estate and is now and ever since has been acting as such; admits that prior to April 2, 1925, said Mary Adamack was the owner and in possession of the sum of $3,000 in money, which was her sole and separate property; that on said date said decedent deposited with defendant the sum of $3,000, to be used for her care, support, and maintenance; that it was agreed between said decedent and this defendant that defendant should execute his promissory note for said sum, due five years after date, bearing no interest; that said note was made, executed, and delivered to decedent; that said William Adamack, administrator, and Mary Adamack Herman were the sole and only heirs at law of decedent on April 2, 1925; that Mary Adamack, for several years prior to her death on October 4, 1927, was sick and unable to care for herself and was in need of medical aid and assistance; that defendant paid out of said money, hospital bills and expenses for medical attention for the use of decedent; that he paid taxes assessed against her real estate, and paid to William Adamack for the care, support, and maintenance of decedent, and divers and sundry sums for clothing and other expenses in caring for and maintaining said decedent; that from and after April 2, 1925, and continuously up until June 1, 1927, or thereabouts, the said Mary Adamack lived at the home of defendant, with defendant's wife, Mary Adamack Herman, the daughter of decedent, Mary Adamack; that said Mary Herman died on June 15, 1927, childless, and without issue, and that by an arrangement and agreement between said William Adamack and defendant, it was agreed defendant should pay out of said sum of $3,000 the insurance on the life of the said Mary Adamack Herman for the reason that the beneficiary of said policy was decedent Mary Adamack and that upon the death of Mary Herman, the proceeds of said policy of insurance should become the property of Mary Adamack, and by reason thereof would be inherited by said William Adamack as the sole and only heir at law of Mary Adamack. The answer states that in April, 1925, said Mary Adamack was more than 84 years of age, and the said William Adamack then and there knew that his mother could not live for many months and that he, being the sole and only heir at law of his said mother, would receive and inherit all her property and estate, and that the said William Adamack did induce and procure defendant to expend said sum of $3,000 in the manner and for the uses and purposes for which said sum was, in fact, expended.

The answer further states that the said sum of $3,000, as above stated, was deposited by Mary Adamack with defendant as a trust fund for the purpose of defraying the expenses of her maintenance and the care of her property, and that all of said funds, with the exception of $1,400, was expended by defendant, either in the care and support of decedent, or in the payment of taxes and expenses on her property, or paid to said William Adamack for the support and maintenance of decedent, or to him as the sole and only heir at law of decedent; that all of the debts of decedent have been fully paid and discharged, and that there is more than sufficient property in the hands of the administrator to pay all expenses of administration and all taxes levied and assessed against the said estate. The answer further states that the said William Adamack, the son of Mary Adamack, is the same person who is now acting administrator of her estate, and is the sole and only heir at law of decedent and as such will be entitled to receive said estate as the sole distributee; that all of the property remaining in said estate after paying the debts and expenses of administration, and all sums heretofore expended in the care and for the support and maintenance of decedent, have been so paid with the full knowledge and consent of said William Adamack, and that plaintiff should now be estopped to claim that any sums expended by defendant for the care and support of decedent were improperly expended, or expended without proper authority. The prayer is that the court decree that said trust fund deposited with defendant as aforesaid has been fully exhausted and properly expended in accordance with the terms of said trust, and that plaintiff take nothing by his said suit, and that the sums so expended by defendant be set off against the demands of plaintiff; and that defendant have all relief to which he may be entitled in equity and good conscience, and for such other and further orders as to the court may seem meet and proper. The reply was a general denial.

The cause was tried to the court as an equity case and will be so considered on this review. The court found the issues for defendant and against the plaintiff, and it was adjudged and decreed "that plaintiff take nothing by this suit and that defendant go hence without day and have and recover of and from plaintiff the costs herein expended and have therefor execution." A timely motion for a new trial was overruled, and the cause is before us for review on a writ of error.

There are nine assignments of error discussed in plaintiff's brief, under three heads, which we will later consider herein. We have carefully read the entire record, as is required of us in equity cases. There is little or no dispute as to the material facts in the case. The testimony shows Mary Adamack, decedent, was the mother of William Adamack, administrator of her estate, plaintiff herein, and the mother-in-law of defendant, Anthony J. Herman, whose wife was a sister of plaintiff and daughter of decedent. Mary Adamack died intestate October 4, 1927, and plaintiff was appointed administrator of her estate October...