Albright v. Davis

• Decision Date: 07 November 1933
• Docket Number: No. 22476.,22476.
• Parties: ALBRIGHT v. DAVIS.
• Court: Missouri Court of Appeals

64 S.W.2d 121

ALBRIGHT v. DAVIS.

No. 22476.

St. Louis Court of Appeals. Missouri.

November 7, 1933.

As Modified on Denial of Rehearing November 21, 1933.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be published in State Reports."

Action by Minnie Albright against John R. Davis, administrator of the estate of Chester F. Albright, deceased. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

John P. Griffin, of St. Louis, for appellant.

John F. Gillespie, of St. Louis, and Arthur J. Mellott, of Kansas City, Kan., for respondent.

SUTTON, Commissioner.

This is an action to recover five United States government bonds of the aggregate face value of $5,000. The trial, with a jury, resulted in a verdict and judgment for defendant, and plaintiff appeals.

Plaintiff for recovery relies upon a gift causa mortis of the bonds made to her by Chester F. Albright, who died intestate on July 23, 1929. He lived in East St. Louis at the time of his death. He had a family consisting of his wife Elizabeth and several children, who resided in Kansas City. In 1913, he removed with his family from Kansas City to East St. Louis, where he had obtained a position with a packing company. He lived in East St. Louis with his wife and children about six months, when she and the children returned to Kansas City. He and his wife did not thereafter live together, though for a while he visited her and she visited him. She had not seen him for about five years prior to his death, though he occasionally wrote to her and sent her money. It appears that he formed an attachment for the plaintiff, and they lived together as husband and wife in East St. Louis for about ten years prior to his death, though he was never divorced from his wife Elizabeth, who lived in Kansas City. When he came into the plaintiff's home, she introduced him to her children as their new father. He introduced her to his friends as his wife, and they were generally known and recognized in the community as husband and wife. At the time of his death they lived at 509 North Eighth street, East St. Louis. He had a safe deposit box at the First National Bank, and another at the Mississippi Valley Trust Company, in St. Louis. When these boxes were opened by the administrator upon his death, there was found in the box at the First National Bank an insurance policy for $3,000, payable to Elizabeth Albright, and a Liberty bond for $1,000. There was a memorandum in the box made in the handwriting of the deceased, as follows: "In case of my failure to call, notify my wife, Mrs. Minnie B. Albright, 509 North Eighth Street, East St. Louis." In the box at the Mississippi Valley Trust Company there were found the five bonds in suit here and a memorandum in the handwriting of the deceased, as follows: "In case no one calls, notify Mrs. Minnie Albright, 509 North Eighth Street, East St. Louis."

Plaintiff was in possession of the duplicate keys to both safe deposit boxes after the death of the decedent. She gave the keys to the box at the First National Bank to Elizabeth Albright, and presented the keys to open the box at the Mississippi Valley Trust Company, and claimed the bonds in suit contained therein.

Decedent died from heart disease. He was taken to St. Mary's Hospital, in St. Louis, on Wednesday, July 17th, and died the following Tuesday about 9 o'clock in the evening.

The evidence for plaintiff shows that he delivered the keys to the safe deposit boxes to plaintiff at the hospital on Sunday evening, July 21st, two days before he died.

Robert J. Burns, a son of the plaintiff, testified concerning the delivery of the keys, as follows: "I saw Mr. Albright on Sunday morning, and was with him until about five or six o'clock in the evening. My mother and my sister, Dorothy, came about one or one-thirty o'clock. While we were there, Mr. Albright asked mother if she brought his bill fold and keys over, and she said `Yes,' and he said, `Give them to me because I want to show you which keys are for the different banks.' She said, `All right,' and she got the keys out of her purse. There were two keys to the First National Bank and two keys to the Mississippi Valley Trust Company. The keys were in separate containers. He, or Dorothy, wrote down on a piece of paper what each pair of keys were for. He then gave the keys back to my mother. He said: `In case anything happens to me, these keys that I give you, one of them is for the box at the First National Bank, which contains a bond and an insurance policy — you can send these to my children, or give them to my children, and the other is for the box at the Mississippi Valley Trust Company, which contains some bonds and those are yours.' He gave the keys to her then, and she put them in her purse."

Dorothy Kiefer, plaintiff's daughter, testified concerning what was said and done with respect to the delivery of the keys. Her testimony was substantially the same as the testimony of her brother, Robert J. Burns.

John E. Gaskill, Jr., testified, for plaintiff, as follows: "I am with the St. Louis Union Trust Company, and have been for six years. I knew Chester F. Albright. He came to my desk one day seeking information regarding the handling of his estate after his death. That was some two or three years ago. He told me he had a wife and some children in Kansas City. He told me he lived with this woman in East St. Louis, and he wanted to know how he could arrange something for her. His inquiries and discussion were in regard to a provision for this lady in East St. Louis. There were some insurance policies, and there were some other securities, some $5,000 or $6,000, as I recollect now. He wanted to know how he could divide his property so that this lady in East St. Louis could get what he wanted to give her, as well as setting aside certain portions that he felt he ought to give to Mrs. Albright and family in Kansas City. He said this lady, Mrs. Albright, in East St. Louis, with whom he was living was not his wife, that is so far as a marriage ceremony was concerned. He said he did not want to make a will or a living trust, because he did not want it to go on record."

Dr. N. L. Campbell testified as follows: "I knew Chester F. Albright probably fifteen years. I was his physician for years. The first I recall of him I went to his house. He lived with his wife then, that was the plaintiff; that was back in 1920; that was the first I recall seeing him in his home. Whenever I went to his house I saw plaintiff there. When I saw him, they were together, and I do not recall whether I was introduced when I first went there, but I knew her as Mrs. Albright when I went to their home. He talked to me about his personal and financial affairs. This was during his last illness, probably two or three months previous to his death. He was quite alarmed about whether or not he would recover, and in fact he had the idea in his mind that he would not, and he wanted to adjust some property matters which he had with relation to his family and heirs, and he asked my opinion about it, and I thought it was a matter that did not belong exactly to me, and I advised him to see a lawyer. He said he was going to dispose of some bonds that he had so that he would know that his wife would share the benefit of them. He referred to the plaintiff. I never heard of any other wife. Even at this conversation there was no mention made of any other wife. He said he had his money invested in some bonds, and he wanted to leave those bonds so that his wife — and he spoke of the lady that was in and out of the room as I was going to see him — would get them, and I advised him to see a lawyer, and have his property taken care of on the advice of the lawyer. He referred to the fact that he had some bonds in the bank and wanted his wife to have them. He did not tell me he was living with a woman who was not his wife. He referred to Mrs. Albright. When he referred to his wife, I knew who he was referring to. He always referred to the same woman in the same way. He did not tell me he had a wife and children in Kansas City. He expressed alarm about whether he would recover from his last attack. He was a very sick man for about two months."

Mrs. Elizabeth Albright testified that she talked with the plaintiff...