Bircher v. Boemler

• Decision Date: 11 June 1907
• Citation: 204 Mo. 554,103 S.W. 40
• Parties: BIRCHER v. BOEMLER.
• Court: Missouri Supreme Court

103 S.W. 40

204 Mo. 554

BIRCHER v. BOEMLER.

Supreme Court of Missouri, Division No. 2.

June 11, 1907.

JUDGMENT — RES JUDICATA — SINGLE CAUSE OF ACTION.

Plaintiff's father came to live with her; he merely promising to make some special provision in his will to compensate her. Where there he became insane, and a guardian was appointed for him, and she continued to care for him till his death, the probate court on her petition making her an allowance of $35 a month for caring for him after the appointment of the guardian, which she received and receipted for monthly, and after his death allowing her claim for $40 for taking care of him in his last illness. Held, that she had but single cause of action, so that the allowance and receipt of the $35 per month and the $40 was a bar to an action for taking care of him before he became insane and for a greater amount than $35 per month for taking care of him after he became insane.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Caroline S. Bircher against Henry Boemler, executor of Jacob Scheer, deceased. Judgment for defendant. Plaintiff appeals. Affirmed.

B. R. Brewer and Daniel Dillon, for appellant. Rassieur & Buder and Chas. F. Krone, for respondent.

BURGESS, J.

This is an action by plaintiff, one of the children of Jacob Scheer, deceased, against his estate, on an account amounting to $5,982, one item of which is for board, lodging, washing, and ironing from October 26, 1895, to September 5, 1899, at $50 per month, amounting to $2,315. The second item is for board, lodging, washing, and ironing, care, attention, keeping, and nursing from September 5, 1899, to October 2, 1901, at the rate of $6 per day, amounting to $4,500: The two items charged in the account aggregating $6,857. There is a credit of $875 allowed on this account, paid by the Union Trust Company of St. Louis, as guardian of Jacob Scheer, insane, leaving a balance due on the account of $5,982. Jacob Scheer died on October 2, 1901, and on December 6, 1901, letters testamentary were granted Henry Boemler, without bond, and on August 25, 1903, more than 18 months after the granting of said letters, Caroline S. Bircher, the plaintiff, presented said claim against the estate in the probate court of the city of St. Louis. The claim was disallowed by the probate court on December 7, 1903, whereupon the plaintiff appealed to the circuit court of said city. On April 18, 1904, the cause was heard in the circuit court, whereupon plaintiff took an involuntary nonsuit, which nonsuit, on motion of plaintiff, was thereafter set aside and plaintiff granted a new trial. The cause was again tried in the circuit court on the 16th day of September, 1904, and, under a peremptory instruction of the court, a verdict was rendered for defendant. Within four days after verdict plaintiff filed motion to set the same aside, which was overruled, and plaintiff appealed.

The facts are substantially as follows: Jacob Scheer, the father of plaintiff, was declared to be of unsound mind on September 5, 1899, and on September 8th of the same year the Union Trust Company of St. Louis was appointed guardian without bond. On September 18, 1899, the Union Trust Company of St. Louis, as guardian of the person and estate of Jacob Scheer, non compos mentis, caused notice of its appointment to be published, in accordance with the statute in such case made and provided, the first insertion appearing on the 19th day of September, 1899, within 30 days of its appointment, and the last insertion made on the 10th day of October, 1899. Under arrangement with the Union Trust Company of St. Louis, and by consent of all parties interested, it was agreed that Jacob Scheer was to remain at the home of Caroline S. Bircher, the plaintiff, and on September 25, 1899, she filed a petition in the probate court asking for an appropriation of $37 for clothing already bought, and an allowance of $35 per month from September 5, 1899, for board, maintenance, and ordinary attention, and $25 per month appropriation for clothing and incidental expenses, all of which were allowed and ordered paid. On December 21, 1899, the probate court, on its own motion, ordered an additional appropriation of $25 per month for incidentals, making a total allowance of $35 per month for board, and $50 per month for clothing and incidental expenses. These payments were made monthly by the Union Trust Company of St. Louis, as guardian, to Caroline S. Bircher and her aged father, both calling in order to make the collections. This condition of affairs continued to October 2, 1901, at which time, more than two years after he had been declared to be of unsound mind, Jacob Scheer died. The evidence showed that up to the time of Jacob Scheer's death plaintiff continued to draw an allowance of $35 per month for the board and care bestowed upon her father, giving monthly receipts for the same, and at no time while the Union Trust Company of St. Louis was acting as his guardian claimed or pretended to make further claim against the estate of its ward. The guardianship of the trust company continued from September 8, 1899, to October 2, 1901, 2 years and 20 days, on which last-named date the death of its ward was suggested by the trust company. On October 21, 1901, the Union Trust Company of St. Louis, as such guardian, filed its exhibits for final settlements, and on December 3d of the same year settlement to date of death of ward was passed and distribution ordered. Thereafter, on April 17, 1903, final receipts were filed and the guardian discharged. The evidence showed that on July 8, 1902, more than a year prior to the date of her filing the claim against said estate, plaintiff presented to Henry Boemler, as executor of the last will of Jacob Scheer, deceased, claim against the estate of said deceased, founded on account of care, maintenance, and attendance upon said deceased during his last illness. The same, in the sum of $40, was allowed, placed in the second class and ordered paid, which said sum the evidence showed was paid to and received by plaintiff.

The evidence introduced by plaintiff showed that Jacob Scheer, the deceased, went to live with his daughter, Caroline S. Bircher, on October 26, 1895; that he remained there until his death, October 2, 1901; that during this entire period the plaintiff gave him proper care and maintenance; that he was duly adjudged non compos mentis in the probate court of the city of St. Louis on September 5, 1899; that before he was so adjudged nothing had been paid to the claimant, and that Mr. Espenschied suggested to Scheer that this was an injustice, and that he should remunerate his daughter for her services; that he replied that he had to distribute what money he had amongst his six children equally, or they would make life miserable for him, but that he would provide a compensation for his daughter for her attentions to him by his last will; that such a will was drawn, but was not the last will admitted to probate; that she collected the allowance of $35 per month from the trust company and gave her receipts for the same, and that her father collected the allowance of $50 per month paid to him for incidental expenses. There was...