Balmer v. Sunder

• Decision Date: 21 February 1882
• Citation: 11 Mo.App. 454
• Parties: CHARLES G. BALMER, Respondent, v. GEORGE SUNDER ET AL., Appellants.
• Court: Missouri Court of Appeals

11 Mo.App. 454

CHARLES G. BALMER, Respondent,

v.GEORGE SUNDER ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 21, 1882.

1. An executor may, without indorsement, make a valid transfer of a promissory note to a distributee of the estate.

2. In an action on a promissory note, title in the plaintiff is shown by proving that the executor, on final distribution of the estate, gave him the note, though under the will the executor was entitled to it as residuary legatee

3. Proof that the maker of a note had a special tax-bill against the property of the payee, that an entry had been made discharging the lien of the tax-bill, and that the tax-bill and the note were found among the payee's papers after his death, is not sufficient to warrant the inference that the payee did not pay the tax-bill, and that he had agreed to credit the note with the amount of the tax-bill, but had neglected to do so.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Affirmed.

COLLIER & MUENCH, for the appellants.

JOSEPH JECKO, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

This was an action upon a negotiable promissory note, made by defendants Sunder and Unland, to the order of Elizabeth Balmer, payable one year after date, for $300, with interest from date at ten per cent per annum. The note is dated January 6, 1872. The petition alleges that, on October 2, 1875, the payee of the note died, and that upon the settlement of her estate in the probate court of the city of St. Louis, plaintiff, who is the son of said Elizabeth, became, and now is, the legal holder and owner of said note, etc.

The answer admits the execution and delivery of the note to the payee, and denies all other allegations of the petition. Payment of one year's interest at the maturity of the note, is averred. The answer sets up as a special defence, that on December 16, 1873, defendant Sunder became the owner of a special tax-bill issued by the city of St. Louis, to one Storll, which was a lien for $272 upon a leasehold estate described, belonging to the payee of the note, which tax-bill defendant Sunder, at the last-named date, delivered to her, with the understanding between Mrs. Balmer and himself that the amount of the bill should be credited upon the note, or the tax-bill returned to Sunder for collection; and that Mrs. Balmer kept the tax-bill, received the benefit thereof, and the bill was barred by limitation before the commencement of the suit.

The replication denies the new matter.

There was a verdict and judgment for the full amount of the note and interest.

1. The evidence showed that Mrs. Balmer died, leaving only two children, the plaintiff Charles Gottfried, and his elder brother Charles; that Charles administered upon her estate; that, by her last will, she appointed him her executor, and that her will contained the following clauses, which are admitted to be the only clauses applicable to the note in suit:-- “I give and bequeath unto my youngest son, Charles Gottfried Balmer, and his wife, Julia ( né Opel), all my clothes, wearing apparel, jewelry, carriage and harness, household and kitchen and table furniture, beds, books, pictures, and all other personal property belonging to me at the time of my decease, and situate in and about my present residence. * * * All the residue of my estate I give and bequeath to my oldest son, Charles Balmer.” The estate had been finally settled, showing a balance due the executor. Charles Balmer testified that he gave the note in suit to his brother, the plaintiff, in the distribution of the estate before the final settlement; that he had turned the note over to plaintiff because he was told that, under the will he had no right to the personal property. “I gave it to plaintiff,” the witness adds, “together with other papers. They claimed it under the personal property clause of the will, and I transferred it by delivery to him. I simply gave up the note because it was claimed by plaintiff and under the advice of my counsel.” The note bears no indorsement.

Appellants contend that the petition will not support the verdict, and that this evidence affirmatively showed that plaintiff was not the owner of the note.

So far as the first objection is concerned, we consider that the petition is good enough after verdict. It states by implication that the note was delivered to plaintiff by the legal representative of the payee. The executor has title, and might make a valid transfer of this note, by delivery alone without indorsement, to the distributee of the estate lawfully entitled to it.

From the portions of the will preserved in the bill of exceptions, it would appear that this note went to the...