Beil v. Gaertner

• Citation: 197 S.W.2d 611,355 Mo. 617
• Decision Date: 14 October 1946
• Docket Number: 39833
• Parties: Mary M. Beil v. Clifford W. Gaertner, Guardian of the Person and Estate of Mary M. Beil; Clifford W. Gaertner and Edith Gaertner, Appellants
• Court: United States State Supreme Court of Missouri

197 S.W.2d 611

355 Mo. 617

Mary M. Beil v. Clifford W. Gaertner, Guardian of the Person and Estate of Mary M. Beil; Clifford W. Gaertner and Edith Gaertner, Appellants

No. 39833

Supreme Court of Missouri

October 14, 1946

Rehearing Denied November 11, 1946.

Appeal from Circuit Court of St. Louis County; Hon. Amandus Brackman, Judge.

Affirmed and remanded.

Herbert W. Ziercher and Hans Wulff for appellants.

(1) Residence is a question of fact to be inquired into by the probate court and a judgment of that court determining the residence is not subject to collateral attack. Hamilton v. Henderson, 232 Mo.App. 1234, 117 S.W.2d 379; Baker v. Smith's Estate, 226 Mo.App. 510, 18 S.W.2d 147; State ex rel. Townsend v. Mueller, 330 Mo. 641, 51 S.W.2d 8. (2) Issues of irregularity and mismanagement in the administration of an estate of a person of unsound mind are not subject to collateral attack machinery for correction being available in the probate court itself. Bodine v. Farr, 353 Mo. 206, 182 S.W.2d 173; Baker v. Smith's Estate, supra; 31 Am. Jur., sec. 654, p 230. (3) A person electing to submit himself to the jurisdiction of the probate court cannot later question that jurisdiction. Finley v. Farrar, 351 Mo. 26, 171 S.W.2d 593; State ex rel. Bartlett v. Luttrel, 325 Mo. 35, 26 S.W.2d 768; Hartwell v. Magill, 348 Mo. 365, 153 S.W.2d 362. (4) One under proper adjudication as a person of unsound mind cannot maintain an action in his own name. Baker v. Smith's Estate, supra; Hayes v. Miller, 81 Mo. 424; Redmond v. Railroad, 225 Mo. 721, 125 S.W. 159. (5) Adjudication as an insane person creates a prima facie presumption of absolute incompetency as a witness, the burden of rebutting that presumption being on him who offers the witness. R.S. 1939, sec. 1895; State v. Pierson, 337 Mo. 475, 85 S.W.2d 48; State v. Herring, 268 Mo. 514, 188 S.W. 169. (6) To open a judgment to take additional testimony, the evidence to be offered cannot be cumulative and it must be shown that it was not due to the want of diligence that it did not come sooner. State v. McLaughlin, 27 Mo. 112; Devine v. Wells, 300 Mo. 177, 254 S.W. 65; Devoy v. St. Louis Transit Co., 192 Mo. 197, 91 S.W. 140. (7) If evidence offered is controversial, opposing party is denied his day in court if refused an opportunity for rebuttal. (8) Proof of fraud must be established by clear, strong and cogent evidence, leaving no room for reasonable doubt of its existence. 34 C.J. 494; Elliott v. McCormack, 323 Mo. 263, 19 S.W.2d 654; Lieber v. Lieber, 231 Mo. 1, 143 S.W. 458.

Louis E. Miller, Miller & Landau and B. Sherman Landau for respondent.

(1) Defendants' fraud was clearly established by strong and cogent evidence, leaving no reasonable doubt of its existence. (2) The rule that a probate court's judgment on the issue of residence is not subject to collateral attack is inapplicable in this case because: This is not a "collateral" attack but is a direct proceeding for the express purpose of annulling the judgment. State ex rel. Van Hafften v. Ellison, 285 Mo. 301, 226 S.W. 559, 12 A.L.R. 1157. (3) The chancellor did not purport to determine the question of residence but held only that plaintiff had sufficient evidence to establish good faith and tender a seriously litigable issue upon a rehearing of that issue in the probate court. Hockenberry v. Cooper County State Bank, 338 Mo. 31, 88 S.W.2d 1031. (4) This case does not pertain to irregularity and mismanagement "in the administration" of plaintiff's estate, but directly assails the validity of the entire proceeding in the probate court, and the rule asserted by appellants under Point (2) of their brief is inapplicable. State ex rel. Van Hafften v. Ellison, supra. (5) Plaintiff's appearance in the Probate Court of St. Louis County for the purpose of being offered to the court as a witness in the two separate applications for release from confinement filed by plaintiff's granddaughter and daughter-in-law did not constitute such voluntary appearance as to confer jurisdiction on that court. Anderson v. Anderson, 55 Mo.App. 268; First Regular Baptist Church of Indiana, Pa., v. Allison, 304 Pa. 1, 154 A. 913; Cahill-Swift Mfg. Co. v. Hayes, 97 Kan. 740, 156 P. 735, rehearing denied 98 Kan. 269, 156 P. 735; Ex parte Honaker, 61 P.2d 702; Commercial State Bank v. Rowley, 2 Neb. 645, 89 N.W. 765; Beaupre v. Keefe, 79 Wis. 436, 48 N.W. 596. (6) The purported adjudication of insanity in the Probate Court of St. Louis County did not render plaintiff incompetent from prosecuting this direct action to set aside the adjudication on the ground of fraud in its procurement. She was not thereby relegated to the requirement of awaiting the pleasure of her guardian, Gaertner, to prosecute this action against himself. (7) The purported adjudication of insanity did not render plaintiff absolutely incompetent as a witness. It was the province of the chancellor to pass upon her mental capacity and to determine whether she possessed sufficient mind and memory to observe, recollect and narrate the things she saw or heard. State v. Herring, 268 Mo. 514, 188 S.W. 169. (8) The chancellor's action in opening the judgment for the purpose of taking additional testimony was proper under the provisions of the present Code of Civil Procedure. Sec. 115, Code of Civil Procedure. (9) The court properly rejected the re-offer of defendants' medical witnesses after they had testified at length at the original hearing, as the issue of plaintiff's sanity was not before the chancellor for determination. The question before the chancellor was whether plaintiff could upon rehearing adduce sufficient evidence to establish good faith and tender a seriously litigable issue. Hockenberry v. Cooper County State Bank, 338 Mo. 31, 99 S.W.2d 1031. (10) The evidence fully established the complicity of defendant Edith Gaertner in instigating the probate court proceedings against the plaintiff. (11) Plaintiff could not, as defendants suggest, file a petition for restoration in the probate court without thereby conferring full jurisdiction upon that court. State ex rel. Bartlett v. Luttrell, 325 Mo. 35, 26 S.W.2d 768.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

This is an appeal from a judgment of the circuit court of St. Louis County setting aside, on the ground of fraud, a judgment of the probate court of said county adjudging respondent to be a person of unsound mind, and appointing appellant Clifford W. Gaertner guardian of her person and estate. The judgment, in addition to setting aside the adjudication as to plaintiff being of unsound mind, removed Gaertner as guardian and directed that he account for funds of respondent amounting to $ 7,747.05. Hereinafter we refer to respondent as plaintiff and frequently we refer to appellant Clifford W. Gaertner as the doctor.

These contentions are made: (1) That the circuit court did not have jurisdiction of the cause; (2) that plaintiff did not have the legal capacity to maintain the cause; and (3) that the facts do not support the judgment.

Defendant Clifford W. Gaertner is a physician and defendant Edith Gaertner is his wife. The doctor's office is in St. Louis, but he resides at 21 Clayton Terrace, St. Louis County. Prior to the beginning of her present troubles plaintiff occupied her home at 616 West Marceau Street, St. Louis, where she had resided for more than 40 years. Her husband died November 9, 1942. Defendant had been the family doctor of plaintiff and her husband for some 25 or 30 years. Plaintiff was about 75 or 76 years old in December, 1943, but lived alone. Her husband was a baker and also a street car motorman. They had two sons, Joe and George. Joe died at the age of 24, some 30 years ago. George is a machinist and is 56 years old. The family was hard working and frugal, and at the time of the husband's death, he and his wife owned their home, 616 Marceau, and a separate house and lot adjoining, and had several thousand dollars in cash and securities. Through the years the doctor acquired the complete confidence and trust of plaintiff. The record shows that she not only trusted him, but worshiped him. Mrs. Gaertner testified that plaintiff "was crazy about" the doctor; that "she idolized him"; said he was "the nearest thing to God." Other witnesses said that plaintiff considered the doctor as one "too good to die."

According to the doctor he, about the middle of December, 1943, and because of his long friendship and sympathy for plaintiff, took her from her home in St. Louis to his home in St. Louis County and, according to defendants' theory, plaintiff by that move changed her residence from St. Louis City to St. Louis County. Mrs. Gaertner said that plaintiff came to their home December 15, 1943, and remained until July 26, 1944, except for a few days in December when she went back to her home to have her cats and dog killed, and in April 1944, when the Des Peres River overflowed plaintiff's home. However, there was considerable evidence that plaintiff was in her own home for a substantial part of the time between December 15, 1943, and July 26, 1944. It is conceded that plaintiff was in her home on many occasions between December 15, 1943 and July 26, 1944, but the doctor said that he would take her there in the morning and then at the end of the day he would drive by for her.

July 5 1944, the doctor filed his affidavit in the probate court of St. Louis County, alleging that plaintiff was a person of unsound mind; incapable of managing her affairs; and asked that an inquisition be had. According to the return plaintiff was served with a copy of the affidavit, and on July 19, 1944, a hearing was had; an attorney was appointed to represent plaintiff and in her absence she was found to be a...