Chandler v. Hedrick

• Decision Date: 02 February 1915
• Citation: 173 S.W. 93,187 Mo.App. 664
• Parties: W. K. CHANDLER, Administrator, Respondent, v. JASON P. HEDRICK, Appellant
• Court: Missouri Court of Appeals

173 S.W. 93

187 Mo.App. 664

W. K. CHANDLER, Administrator, Respondent, v. JASON P. HEDRICK, Appellant

Court of Appeals of Missouri, St. Louis

February 2, 1915

Appeal from Bollinger Circuit Court.--Hon. Peter H. Huck, Judge.

Judgment reversed and cause remanded. (with directions).

J. W Caldwell and Wm. M. Morgan, for appellant.

(1) The court should have permitted the defendant to testify that payment of funeral expenses to McLain & Kinder was after the appointment of the administrator. Kirton v. Bull, 168 Mo. 622. (2) Appellant's instruction in the nature of a demurrer to the evidence asked at the close of plaintiff's evidence and rendered at the close of all the evidence should have been given. Ryan v. McCully, 123 Mo. 636; Fink v. Railroad, 161 Mo.App. 316; Warner v. Railroad, 178 Mo. 326; Trig v. Ozark Land & L. Co., 187 Mo. 227. (3) Instruction numbered one given for respondent should not have been given. It singles out one fact in the evidence, is a commentary on the evidence, indicates the opinion of the judge, is not a correct statement of the defendant's admission in the pleading and evidence and submits the case on an issue not raised by the pleadings nor by the evidence. Cole v Waters, 147 S.W. 552; Webb v. Baldwin, 147 S.W 849. (4) Instruction numbered three given for respondent should not have been given because there is no evidence on which to base it and is a commentary on the evidence, and is misleading. (5) Instruction number 3 given for respondent singles out one fact and gives it undue prominence and is misleading to the jury. Webb v. Baldwin, 147 S.W. 849. (6) Instruction numbered three asked by appellant, is a correct statement of the law as applied to the facts, and should have been given, and the court erred in refusing to give it and giving it as so amended. Miller v. Barnett, 124 Mo.App. 53.

W. K. Chandler for respondent.

(1) The proceeding in this case were begun and carried on under the provisions of sections 70, 71, 72 and 73 at pages 175 and 176 of the Revised Statutes of 1909, of the State of Missouri. The court committed no error in refusing to allow the defendant to testify that payment of funeral expenses to McClain & Kinder was after the appointment of the administrator for the reason that said testimony was irrelevant and incompetent, and not tending to prove any fact at issue in the cause. The place to present this claim or demand for proof and allowance was in the probate court of Bollinger county, Missouri. The administrator was entitled to the possession of all the money and other personal property after the date that he was qualified as the administrator of the estate of Anderson Hedrick, deceased. Houston v. Moore, 18 Mo.App. 406. (2) Appellant's instruction in the nature of a demurrer to the evidence asked at the close of plaintiff's evidence and rendered at the close of the evidence should not have been given and the court committed no error in refusing the same. The cases cited by appellant in support of said demurrer to the evidence are not in point. (3) The court committed no error in giving instruction number one for respondent. It clearly covers the points at issue in the cause. (4) The instruction numbered three given by the court for respondent was clearly within the law. It is not a commentary on the evidence nor is it misleading, and is fully supported by the evidence. Tygord v. Falor, 163 Mo. 234. (5) Instruction numbered three does not single out one fact and give it undue prominence, nor is it misleading to the jury. (6) The court committed no error in refusing to give instruction numbered three, asked by appellant. It was not supported by the evidence, or the law in the case, and the case of Miller v. Barnett, 124 Mo.App. 53, cited by appellant in his brief, is not in point.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.-

-This is a proceeding to discover assets, under sections 70 to 73 inclusive, Revised Statutes 1909, prosecuted by the administrator of the estate of one Anderson Hedrick, deceased, against the defendant, Jason Hedrick, a son of said deceased. The cause originated in the probate court by the filing of an affidavit on August 11, 1911, by plaintiff administrator, in accordance with the provisions of section 70, Revised Statutes 1909. Citation was duly issued to defendant, and thereafter the administrator filed interrogatories, to which answers were duly filed by defendant. Thereafter a trial of the issues in the probate court resulted in a verdict and judgment against defendant, from which he appealed to the circuit court, where, upon a trial de novo before the court and a jury, there was again a verdict and judgment against him (the verdict being concurred in by ten jurors), from which he prosecutes this appeal.

It appears that the deceased, Anderson Hedrick, had been a resident of Bollinger county, Missouri, for many years, where he at one time owned a small farm and some little personal property, all of which he sold during his lifetime. What remained of the proceeds thereof is the bone of this contention. He left surviving him six children, all adults; none of whom, except defendant, then resided in Bollinger county. The evidence is that deceased and defendant lived together during nearly all of the latter's life; that defendant married perhaps six or seven years prior to his father's death, and that from and after his marriage his father lived with and was supported by him in his home, during at least the greater portion of such period.

Early in 1910 the deceased, accompanied by defendant, went to visit another son, George W. Hedrick, living in Oklahoma, where he remained until October of that year, returning to defendant's home in Bollinger county. While in Oklahoma he purchased a bank draft from the Farmers State Bank of Ada, Oklahoma, of date October 24, 1910, payable to his order, for $ 600, drawn upon the National Bank of Denison, Texas. He died at defendant's home in Bollinger county on November 29, 1910. And the evidence shows that on December 2, 1910, the above-mentioned draft was deposited by defendant in a bank at Zalna, Missouri, indorsed by deceased and defendant.

In answer to interrogatories filed, defendant stated that the deceased had deposited in the Oklahoma bank $ 600 for which he received a "cashier's check." In answer to an interrogatory requiring him to state, if he knew, what the deceased did with the "certificate of deposit or cashier's check or draft, if he had one," defendant stated as follows: "He gave it to me for services I had rendered him, and for services to be rendered in taking care of him in the future."

A witness for defendant testified that he was present at the home of defendant's father-in-law when deceased stopped there with defendant on his return from Oklahoma and before reaching defendant's home, and that the witness saw deceased give defendant his pocketbook. And another witness, a neighbor, testified that he visited deceased on the evening before the latter's death, and that in conversation with the witness the deceased said that "he aimed for Jason Hedrick to have what he had, for he had done more for him than any of the rest; that is, any of the folks, his children." There was also evidence of the payment by defendant of a doctor's bill for deceased; and defendant offered to show that he paid the funeral bill.

It is evident that the case was tried below upon an erroneous theory, because of the failure to properly reckon with the fact that the draft which came into defendant's possession was a negotiable instrument, indorsed by the deceased. The instructions given on behalf of plaintiff administrator in the main follow very closely those approved in Tygard v. Falor, 163 Mo. 234, 63 S.W. 672. The court instructed that it was admitted by Jason Hedrick, in answer to interrogatories filed, that he received from his father a check or draft for $ 600, shortly before the latter's death, which he had not accounted for to the administrator; and that the jury should find him guilty of wrongfully withholding "said money" from the estate, unless it was found that Anderson Hedrick in his lifetime "gave" the said money or the check to defendant; and that before the jury could find that "such alleged gift" was made they must find that "in making said gift" it was the intention of Anderson Hedrick to at once pass the title and possession, etc.

While an instruction of this character was approved in the Tygard case, supra, the facts there were that a son had sold certain cattle belonging to his father, retaining the proceeds, and claimed that the father had made a gift thereof to him. Here Jason Hedrick asserts that the draft in question was delivered to him for services rendered and to be rendered to his father. He does not claim the same as a gift at all, but as compensation for services. And it was not money belonging to his father which came into his possession, as in the Tygard case, but a negotiable instrument payable to the father and indorsed by him. The facts of the case were not such as to warrant the giving of this instruction.

It is also clear that defendant, though otherwise disqualified, was a competent witness to transactions occurring after the granting of letters on the estate; and that the court should not have held that he was incompetent for all purposes. [See Weiermueller v. Scullin, 203 Mo. 466, 101 S.W. 1088; Kersey v. O'Day, 173 Mo. 560, 73 S.W. 481; Cobb v. Holloway, 129 Mo.App. 212, 108 S.W. 109.]

These and other questions raised, however, need not be here...