Clay v. Walker

• Decision Date: 21 May 1928
• Docket Number: 16140
• Citation: 6 S.W.2d 961
• Parties: CLAY v. WALKER et al.
• Court: Kansas Court of Appeals

6 S.W.2d 961

CLAY v. WALKER et al.

No. 16140

Court of Appeals of Missouri, Kansas City

May 21, 1928

Appeal from Circuit Court, Moniteau County; H. J. Westhues, Judge.

“ Not to be officially published.”

Suit by H. L. Clay against George K. Walker and others. Decree for plaintiff, and defendants appeal. Reversed in part and rendered. [Copyrighted Material Omitted]

J. B Gallagher and S. C. Gill, both of California, Mo., for appellants.

Embry & Embry, of California, Mo., for respondent.

OPINION

FRANK, C.

This is a suit in equity to establish a resulting trust. The decree in the trial court was for plaintiff, and defendants appealed.

Plaintiff’s mother and David S. Walker were married in February, 1891. She died intestate in Moniteau county in the year of 1921, and left surviving her as her sole and only heirs, her husband, David S. Walker, and two children, plaintiff, H. L. Clay, and Weaver W. Walker, one of the defendants herein. The other defendants are heirs of David S. Walker by a former marriage. David S. Walker died in Moniteau county in the year 1925, and his estate was in the course of administration at the date of the institution of this suit. One of the defendants, a daughter of deceased, is also named as a defendant in her capacity as administratrix of said estate. There was no administration on the estate of plaintiff’s mother.

No complaint is lodged against the pleadings. The substance of the petition is that plaintiff’s mother had in excess of $5,000 in money and notes in her own right, which her husband, David S. Walker, reduced to his possession without her written consent, commingled same with his own property, and used it in the purchase and improvement of two separate tracts of land in Moniteau county, taking the title thereto in his own name. One was a 100-acre tract, known as his father’s homestead, the other a 40-acre tract, known in the record as the Alldridge 40. The petition prays judgment for one-half of said money and notes, and asks that same be made a lien on the assets of the estate of David S. Walker.

The answer of defendants admits that David S. Walker died March 7, 1925; that Maggie J. Clay Walker died intestate June 24, 1921; that there was no administration of her estate; that David S. Walker and Maggie J. Clay Walker were married February 17, 1891; and that defendants are the heirs at law of David S. Walker. The answer alleges, and it is admitted, that defendant Alma Schartzer is the duly appointed and qualified administratrix of the estate of David S. Walker, and that she duly published notice as required by law to all persons having claims against said estate; the first publication of said notice being made on March 12, 1925. The answer also pleads the various statutes of limitation in bar of plaintiff’s cause of action.

The evidence shows that David S. Walker purchased the interest of his five brothers and sisters in the 100-acre tract, known as his father’s homestead, paying $200 for each share, and brought the Alldridge 40 for an expressed consideration of $1,000.

There is substantial evidence in the record that Eleazor Clay, father of plaintiff’s mother, was a man of means, had a fine farm and plenty of money; that he gave each of his sons, Webb and Bob, and his daughter, Mat, a farm. Webb Clay testified that what his father gave him amounted to over $4,000; and his father told him that he was dividing his property equally among his children.

Over the objection of defendants, witnesses called by plaintiff were permitted to testify that Eleazor Clay told them that he intended to give plaintiff’s mother more than he had given the rest of his children; that he was satisfied that the land purchased by David S. Walker was paid for with money he had given plaintiff’s mother and the title was taken in the Walker name instead of hers.

This evidence was hearsay, and should not have been admitted. Eleazor Clay’s legal representatives are not parties to this suit, and no rights of his estate are involved herein. Statements made by him, not in the presence of the parties sought to be affected thereby, should have been excluded. Redman v. Piersol, 39 Mo.App. 173; Swope v. Ward, 185 Mo. 316, 329, 84 S.W. 895. The admission of this testimony is not, however, reversible error.

This is an equity case. Such cases should not be reversed on account of the admission of incompetent evidence. It is the province of an appellate court to determine the competency of any evidence contained in the record and to reject such as it finds to be incompetent. If, after the appellate court rejects all evidence which was improperly admitted by the trial court, the decree is still supported by the weight of the competent evidence remaining in the record, it should be affirmed. Reynolds v. Kroff, 144 Mo. 433, 46 S.W. 424; Green v. Ditsch, 143 Mo. 1, 44 S.W. 799; Evangelical Synod v. Schoeneich, 143 Mo. 652, 45 S.W. 647; Mississippi Valley Trust Co. v. McDonald, 146 Mo. 467, 48 S.W. 483; Miller v. Slupsky, 158 Mo. 643, 59 S.W. 990. If otherwise, it should be reversed, and a decree rendered in accordance with the weight of the competent evidence. Mahner v. Linck, 70 Mo.App. 380; Brown v. Brown, 53 Mo.App. 453; State v. Ulrich, 110 Mo. 364, 19 S.W. 656.

There is evidence in the record that two notes of $1,000 each and one note for something more than $600, which were given to plaintiff’s mother by her father, Eleazor Clay, were collected by her husband, David S. Walker. In addition to this, witness Alta Moore testified that she heard Walker say that he collected a claim of $2,000 from Eleazor Clay, which represented wages due his wife from her father from the time she was 21 years old until she married and left home. Witnesses who knew Walker at the time he married plaintiff’s mother, testified that they were at his house frequently; that he seemed pretty hard up; that he had some property, 8 or 10 head of horses and 5 or 6 head of cattle; that they did not think he had any money; that, about the time plaintiff’s mother received the notes from her father, it was talked in the neighborhood that he had bought the 100-acre farm.

Defendant’s evidence:

Alma Schartzer, a daughter of David S. Walker, and administratrix of the estate of her father, testified that she knew the 100 acres of land owned by Jacob Walker, her grandfather, at the time of his death; that her father had six sisters and one brother; that the brother died when he was a child; that David S. Walker and his first wife moved to this 100-acre farm after the death of Jacob Walker and had been living thereon about ten years prior to the death of his first wife; that he planted an orchard, dug a well, built a house, smokehouse, silo, and several sheds on said land, that he bought the interest of the other heirs in this land before his first wife’s death; that he married plaintiff’s mother in February, 1891, three years after the death of his first wife; that she lived at home with her father about 21 years after he married plaintiff’s mother; that she was present at home with her father and plaintiff’s mother at the time witness Thompson talked to them about the Alexander notes; that witness Thompson asked plaintiff’s mother if she would accept the $2,000 notes from her father, and she said she would if he would give them to her; that she afterwards stated she did not receive the $2,000; that, during the 21 years she lived with her father after his marriage to plaintiff’s mother, she never knew of her stepmother receiving any money from her father.

A written account signed by Maggie J. Walker against her father for 17 years’ labor ending February 17, 1891, at $1.50 per week on which there appeared various credits amounting to $21.40, was offered in evidence. The principal and interest due on above account on February 17, 1904, amounts to $2,360.28.

Witness Alma Schartzer further testified that the signature appearing on said account was that of plaintiff’s mother; that she knew plaintiff’s mother received the credits appearing on said account; that plaintiff’s mother did not receive the full amount of said account; that she knew of no claim being paid to her father or stepmother on said account. This witness further testified that the new house was built on the 100-acre farm about two years after her father and plaintiff’s mother were married; that her father paid the carpenters for work on the house; that he sold two colts, two lots of sheep, a hog, and a horse about the time the house was built; that he raised crops and stock on this 100 acres and bought and sold stock; that he received $500 from one of his brothers in 1904; that he received deeds from his brothers and sisters for their interest in this land and she never heard of them claiming any interest in it thereafter; that she heard her father say that he paid his brothers and sisters $200 apiece for their interest in said farm.

The evidence convinces us that David S. Walker appropriated money and notes belonging to his wife to his own use without her written consent. Having reached that conclusion, the next question is whether or not the evidence shows that he used any of this money in purchasing the 100 acres of land from the heirs of his deceased father.

When we exclude, as we must do, the hearsay statements made by Eleazor Clay, to the effect that he was satisfied that the 100 acres of land bought by Walker was paid for with money he had given plaintiff’s mother, the only remaining evidence touching this question is the evidence of witnesses that before Walker appropriated his wife’s property, he seemed to be hard up; that he was in debt some, but they did not know how much; that he had some property; that they did not think he had money of his own with which to buy said...