Bircher v. Boemler
| Decision Date | 11 June 1907 |
| Parties | CAROLINE S. BIRCHER, Appellant, v. BOEMLER, Executor of Last Will of JACOB SCHEER |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Moses N. Sale Judge.
Affirmed.
B. R Brewer and Daniel Dillon for appellant.
For the purpose of determining whether a case should have been submitted to the jury, the testimony on the part of the plaintiff should be taken as true, and every reasonable inference therefrom in plaintiff's favor should be made. Dorsey v. Railroad, 83 Mo.App. 528; Staube v Christopher & S. A. I. & F. Co., 85 Mo.App. 640; Pauck v. St. Louis Dressed Beef Co., 159 Mo. 467.
Chas. F. Krone and Rassieur & Buder for respondent.
(1) There is a fatal variance, between the allegations and the proof, amounting to entire failure of proof, as appellant's claim against her father could not arise on implied promise, but necessarily was for his care and maintenance on his express promise to pay her during his lifetime, while the proof showed a promise to provide her compensation by his last will. Sisney v. Arnold, 28 Mo.App. 568; Priest v. Way, 87 Mo. 16; Carson v. Cummings, 69 Mo. 325; Link v. Vaughn, 17 Mo. 585; Faulkner v. Faulkner, 73 Mo. 327; Merle v. Hascall, 10 Mo. 406; Beck v. Ferrara, 19 Mo. 30; Feurth v. Anderson, 87 Mo. 354; Ensworth v. Barton, 60 Mo. 511; Waldhier v. Hannibal, 71 Mo. 514; Smith v. Shell, 82 Mo. 215; Haynes v. Trenton, 108 Mo. 123; York v. Bank, 105 Mo.App. 127; Schneider v. Patton, 175 Mo. 684; Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 137. (2) The claim of appellant for care and maintenance of her deceased father during the period of incompetency, is entirely precluded by the judgment of the probate court allowing her thirty-five dollars per month for this purpose, and the acceptance of such allowance by her during said period. Sec. 3671, R. S. 1899. (3) The entire claim of appellant was barred by the judgment for forty dollars entered in her favor against Henry Boemler, as executor of Jacob Scheer, deceased. The law does not permit a judgment upon a part of a claim, leaving a right of action as to the residue. Laine v. Francis, 15 Mo.App. 107; Wagner v. Jacoby, 26 Mo. 532; Piel v. Finck, 19 Mo.App. 338; Funk v. Funk, 35 Mo.App. 246; Oester v. Sitlington, 115 Mo. 247; Bank v. Tracy, 141 Mo. 252; Edmonston v. Jones, 96 Mo.App. 83. (4) The law presumes that services rendered by a daughter to a father are gratuitous. If a party rendering services intends that they should be gratuitous when she renders them, she can not subsequently recover therefor. Louder v. Hart, 52 Mo.App. 377; Bittrick v. Gilmore, 53 Mo.App. 53; Kinner v. Tschirpe, 54 Mo.App. 575; Erhart v. Dietrich, 118 Mo. 418; Lawrence v. Bailey, 84 Mo.App. 107; Castle v. Edwards, 63 Mo.App. 568. (5) The court should take a case from the jury by peremptory instruction where, if it was submitted to the jury and a verdict rendered for plaintiff, such verdict could not stand as having no foundation in law or in fact to rest upon. Warner v. Railroad, 178 Mo. 125; Bank v. Railroad, 98 Mo.App. 330; Fuchs v. St. Louis, 167 Mo. 620; Epperson v. Tel. Co., 155 Mo. 346; Sehr v. Lindemann, 153 Mo. 276.
This is an action by plaintiff, one of the children of Jacob Scheer, deceased, against his estate, on an account amounting to fifty-nine hundred and eighty-two dollars, one item of which is for board, lodging, washing and ironing from October 26, 1895, to September 5, 1899, at fifty dollars per month, amounting to twenty-three hundred and fifteen dollars; 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 six dollars per day, amounting to forty-five hundred dollars; the two items charged in the account aggre -- gating sixty-eight hundred and fifty-seven dollars. There is a credit of eight hundred and seventy-five dollars 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 fifty-nine hundred and eighty-two dollars.
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 eighteen 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 8 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, n. c. m., 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 thirty 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 thirty-seven dollars for clothing already bought, and an allowance of thirty-five dollars per month from September 5, 1899, for board, maintenance and ordinary attention, and twenty-five dollars 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 twenty-five dollars per month for incidentals, making a total allowance of thirty-five dollars per month for board, and fifty dollars 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 thirty-five dollars 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, two years and twenty 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 3 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 forty dollars, 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 thirty-five dollars per month from the Trust Company and gave her receipts for the same, and that her father collected the allowance of fifty dollars per month paid to him for incidental expenses.
There was also some evidence offered by plaintiff to the effect that before her father had been declared insane he had stated that he would provide for her; that the will admitted to...
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