Albrecht v. Slater

• Citation: 233 S.W. 8
• Decision Date: 23 June 1921
• Docket Number: No. 21406.,21406.
• Parties: ALBRECHT v. SLATER et al.
• Court: United States State Supreme Court of Missouri

233 S.W. 8

ALBRECHT v. SLATER et al.

No. 21406.

Supreme Court of Missouri, Division No. 2.

June 23, 1921.

Rehearing Denied July 19, 1921.

Appeal from St. Louis Circuit Court; Benjamin Z. Klene, Judge.

Action by Lizzie Albrecht against Frank M. Slater, public administrator of the estate of William Dischert, deceased, and others. Judgment for defendants, and plaintiff appeals. Affirmed.

This suit was begun and an amended petition filed by plaintiff against defendants in the circuit court of the city of St. Louis, Mo., to the October term thereof, 1918.

The action was in equity and sought to have the court decree that, certain notes and deed of trust on lands belonging to plaintiff and her husband, Christ Albrecht, as tenants by entirety, had been paid and satisfied, and was no longer a lien on said land; that they constituted a cloud on plaintiff's title, and should be canceled.

The notes and deed of trust were given February 14, 1914, to William Dischert, a brother of plaintiff, who spent a great deal of his time at San Antonio, Tex., to secure the payment to him of a loan made to said plaintiff and her husband of $8,000, and a number of interest notes of $240 each, payable at certain stated times. Said Dischert died in San Antonio, Tex., January 26, 1917. Plaintiff alleges that said notes and deed of trust belonged to her on account of an inter vivos gift from said. Dischert.

It is further alleged that Frank M. Slater was the public administrator of the city of St. Louis, and, as such, took charge of the estate of said Dischert, deceased, including the note in question, for administration, and did fully administer it; alleged demand was made on said administrator for said note and deed of trust, but he refused to deliver them.

Defendant Slater answered with an admission of the correctness of the allegation that he was public administrator, and as such took charge of the estate of said Dischert and said deed of trust and $8,000 note to said Dischert; denied each and every allegation pleaded in the petition; and pleaded the following as affirmative matter:

"This defendant states that, when he took charge of the estate of William Dischert, deceased, said principal note for $8,000 and the last interest note for $240, with said deed of trust, were found with other assets of said deceased, in his safety deposit box at the North St. Louis Savings Trust Company, in said city of St. Louis, and they were the property of deceased at the time of his death; that plaintiff was present when said safety deposit box was opened, and this defendant took possession of the assets of said deceased, including said principal and interest notes and deed of trust, and that she did not then, nor has she since, made claim to the ownership of said notes and deed of trust; that said principal and last interest note are now long past due, and that plaintiff, on numerous occasions, upon the demand of this defendant, promised and agreed to pay or arrange for the payment of the same, prior to the filing of this suit, thereby recognizing the validity of said notes and deed of trust.

"Wherefore he says she is now estopped from denying such validity, and that her bill ought to be dismissed."

Augusta Dischert, widow of said William Dischert, entered her appearance and answered in part as follows:

"Admits further that the estate of said William Dischert, deceased, has been finally settled, and that defendant Slater, as such public administrator, on the 15th of April, 1918, turned over said deed of trust and said principal note to this defendant, the widow, and to Anna Flannagan, the daughter of said William Dischert, and that said Anna Flannagan and this defendant are now in possession of said note and deed of trust.

"Further answering, and by way of affirmative defense, this defendant states that said William Dischert was, at the time of his death, the owner of the deed of trust described in plaintiff's Petition, and such part of the notes as then remained unpaid."

With the issues thus made up, the court, after hearing the testimony, on December 30, 1918, rendered judgment for defendants, and filed the following memorandum opinion:

"There is no evidence that plaintiff knew that she was the recipient of a gift of $8,000, deed of trust mentioned in the pleadings; hence no evidence of an evidence of the gift. The proof in this case does not satisfy the judicial mind beyond a reasonable doubt that there was an unconditional gift of the note and deed of trust in the lifetime of Dischert, the putative donor."

Upon the rendition of this judgment, a motion for a new trial was filed, but met with an adverse fate at the hands of the court, whereupon an appeal was duly taken to this court by plaintiff, and a bill of exceptions timely filed.

The testimony will be further adverted to in the opinion which follows.

R. M. Zeppenfeld, of St. Louis, for appellant.

Muench, Walther & Muench, of St. Louis, for respondents Slater and Dischert. Frank A. Thompson, of St. Louis, for respondent Flannagan.

MOZLEY, C. (after stating the facts as above).

1. It is assigned that—

"The court erred in finding that there was no evidence in the case that plaintiff was the recipient of a gift of $8,000 deed of trust, mentioned in the pleadings, and hence no evidence of an acceptance of the gift, and that the proof in this case does not satisfy the judicial mind beyond a reasonable doubt that there was an unconditional gift of the note and deed of trust in the lifetime of Dischert, the putative donor."

2. The correct solution of this, assignment turns upon two questions: (1) Was there a

gift? and (2) Was said gift accepted by plaintiff? It appears from the testimony that plaintiff and said William Dischert had a joint safety deposit box in the North St. Louis Savings & Trust Company, in said city, and, although they both had keys thereto, plaintiff kept nothing therein, and had never opened it herself, or seen it opened, until a few days after the death of said Dischert, when she, in person and by an attorney, with a number of other persons interested in the matter, assembled, and with plaintiff's key opened the box and inspected the papers and other things belonging to deceased. Plaintiff testified that all of the papers contained in the box were read to her.

The testimony further showed that the note and deed of trust in question was in said box, and that it and all other papers contained therein were taken charge of by defendant Slater, as public administrator, for final disposition under the law. Plaintiff made no objection, at the time, to the administrator's taking said notes and deed of trust, and did not make any claim to them as owner.

There were a number of interest notes in connection with said principal note which her son, William Albrecht, was by her authority paying for her, and he paid one of them 19 days after the death of said Dischert, and it, with others that had been paid by him, was delivered to her.

Upon the question of whether or not said note and deed of trust were a gift' from Dischert to plaintiff, William Albrecht testified that Dischert told him several times "he had arranged everything, and that the deed was turned over to her." Donnerberg testified that said Dischert told him the following concerning the alleged provision for plaintiff:

"I have got a deed of trust on this place, and it is my sister's; I give it to her; we have got a joint box; I have got everything fixed."

Haid testified:

"By the Court: Q. What you mean to say there was a deed of trust of $8,000? A. Made by Mrs. Albrecht and her husband to William Dischert, and, as recollect it,...