Berkmeir v. Peters
| Decision Date | 04 April 1905 |
| Citation | 86 S.W. 598,111 Mo.App. 717 |
| Parties | BERKMEIR, Respondent, v. PETERS, Executor, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Charles Circuit Court.--Hon. Elliott M. Hughes Judge.
AFFIRMED.
Judgment affirmed.
C. J Walker, Norton, Avery & Young for appellant.
Thedore Bruere & Son for respondent.
Respondent is clearly entitled to her proportionate share of the legacy bequeathed to her under the seventh clause of her father's will. Section 240, page 175, Revised Statutes 1899. The doctrine of bringing advancements into hotchpot applies only in cases of intestacy. Section 2913, page 740, Revised Statutes 1899; Turpin v. Turpin, 88 Mo. 340.
William Peters died testate in the county of St. Charles, Missouri. The respondent is the executor of his last will. The seventh clause of the will is as follows:
"All the rest, residue and remainder of my estate of every kind and nature and description, both real and personal and mixed, I give, devise and bequeath in equal parts, share and share alike, to my remaining seven children, to-wit: Henry Peters, Edward Peters, Annie Barnhop, Mollie Berkmeir, Katie Kessler, Clara Painter and Lizzie Painter."
Prior to the commencement of this proceeding, the executor, out of the estate, made the following distributions to six of the heirs named in the will, to-wit:
The respondent filed her petition, in the probate court of St. Charles county, for an order on the appellant to require him to pay to her her share of the estate. The probate court made an order on appellant to pay respondent twenty-seven hundred dollars, from which an appeal was taken to the circuit court. On a trial anew in the circuit court, it was found by the court that respondent's distributive share in the personal estate of the testator was thirty-five hundred dollars, and judgment was rendered accordingly from which the executor duly appealed. At the trial the appellant interposed as a defense evidence showing that in 1896, William Peters signed and acknowledged a deed conveying to the husband or respondent (Benj. Berkmeir) one hundred and sixty acres of land situated in St. Charles county, in consideration, as expressed in the deed, of one dollar and love and affection. The deed was not delivered by William Peters to Berkmeir nor was it found among Peters' papers after his death, but was received by the executor from C. J. Walker, Esq. After getting possession of the deed, the appellant delivered it to Benj. Berkmeir and it was placed of record.
Appellant testified that Berkmeir and his wife both stated to him that they were to pay three thousand dollars for the land described in the deed, and agreed that as soon as it was ascertained what their distributive share in the estate would be, they would receipt the executor for the same and pay the balance, if any, and in the spring of 1897, after this agreement was made, Benj. Berkmeir paid him one hundred and fifty dollars, as interest on the three thousand dollars due for the land, but afterwards Berkmeir refused to give a receipt for his wife's share of the estate to be applied as payment on the land. Two of respondent's sisters testified that she stated to them that they (respondent and her husband) had bought the land. The respondent flatly contradicted the testimony of the appellant and of her two sisters and denied emphatically that she agreed with appellant that her distributive share in the estate might be applied as payment on the land and denied ever having any conversation with any of these witnesses about the land or about paying for the land. The deed was not made to respondent nor to her and her husband jointly, but...
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