Deer v. Deer's Estate

• Decision Date: 23 November 1915
• Docket Number: No. 14809.,14809.
• Parties: DEER v. DEER'S ESTATE.
• Court: Missouri Court of Appeals

180 S.W. 572

DEER v. DEER'S ESTATE.

No. 14809.

St. Louis Court of Appeals. Missouri.

November 23, 1915.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

"Not to be officially published."

Action by Margaret Deer against the estate of Thomas J. Deer, deceased. Judgment for defendant, and plaintiff appeals. Affirmed.

V. L. Drain, of Shelbyville, for appellant. F. H. McCullough and C. R. Fowler, both of Edina, for respondent.

REYNOLDS, P. J.

This action was commenced in the Probate Court by plaintiff, or claimant, as she is also designated, here appellant. In her statement of account there filed, and which is the only written pleading by plaintiff, she charges that there is due her from the estate of her deceased husband, Thomas J. Deer, "the same being the amount of the separate property inherited by her from the estate of the father of claimant * * * and received by said Thomas J. Deer on August 3rd, 1889, and used and held by him until his death, $1200. The above includes the value of personal property received and used by said decedent at the time of their marriage which was the separate property of claimant."

The cause was taken to the circuit court on the ground of the disqualification of the probate judge. In the circuit court an answer was interposed by the heirs of Thomas J. Deer, all collateral kin, and who took up for the administrator pendente lite the defense against the claim, in which answer it is set out that the claimant is the widow of Thomas J. Deer and that they were married in October, 1882, but after their marriage and prior to September, 1889, plaintiff became the owner of a separate estate to the amount of about $1200; that plaintiff and her husband, on or about September, 1898, purchased from one Walter E. Smith 80 acres of land, describing it. The answer then avers that "whatever property or money plaintiff owned as her separate estate was applied upon the purchase price of said land and that the said Thomas J. Deer paying the balance of said purchase price taking the fee simple title thereto to himself and his wife, the said Margaret Deer, as tenants by entirety, that she, the said Margaret Deer, now holds the title to said land by survivorship, and now owns the very property purchased by her, with the very money for which she is making claim herein, and the same forms no part of the estate of said Thomas J. Deer." Wherefore they deny that the estate of Thomas J. Deer is indebted to the plaintiff in the sum of $1200 or any other sum.

As far as appears by the abstract in the case the testimony was rather meagre and is very unsatisfactory; various matters which occur to the court on consideration of the case as important not being touched upon or brought out. That is particularly so in testimony of appellant herself, who does not appear to have been very frank. She undoubtedly believes that what was her husband's was hers and that it is unfair to let any of his estate go to his collateral kin, he dying intestate. But we can only deal with the evidence as presented to us in the abstract. Speaking generally, and not attempting to set it out in detail, it may be said that there was substantial, competent evidence tending to show that money which plaintiff below, appellant here, had inherited from her father to the amount of about $1200 had come into the hands of the husband, and that he had loaned the larger part of it out from time to time on notes. Whether those notes were taken in the name of the husband or of that of the wife is not clear. The 80 acres of land described was purchased from one Walter E. Smith on April 10th 1900, as appears by the deed in evidence, for the sum of $1900, the receipt of which from the husband and wife is acknowledged in the deed, and by a general warranty deed Smith conveyed the land to Thomas J. Deer and Margaret Deer, his wife. It appears teat of this $1900, $300 was evidenced by a rote which Smith had given, the note payable either to Thomas J. or Margaret Deer, although that is not clear, but the money, it is pretty clear, being of the money of the wife, and as we understand the evidence, is included in the $1200 of the wife's money, part of which is said to have gone into the purchase of this land, and that this Smith note was applied as a credit on the $1900 purchase price. So the appellant herself testifies. The husband, at the time of this purchase did not have all of the balance of the purchase price, that is, $1600, on hand, but appears to have borrowed from a bank on his own credit. How much he borrowed, whether all of the $1600 or only a part of it, is not clear, possibly only $1400. It fairly appears that he did effect a short time loan from a bank to make up the full consideration named in the deed in anticipation of the falling due of notes which were outstanding and which represented possibly $900 or less of the money of the wife. It also appears that shortly after the purchase, these notes falling due and being paid, the husband out of their proceeds, applied it on the payment of the amount he had borrowed from the bank. The time between the borrowing of money from the bank to apply on the purchase of this land and that of repaying that loan to the bank, in part at least, out of the proceeds of these notes, does not appear. It seems pretty clear, however, that it was a short time.

We think it is substantially established by the evidence in the case that these notes, which fell in and were paid, were the property of the wife, and that in that way and including as we understand the $300 above spoken of, their proceeds may be said to have been applied to the purchase price of this land, so that about $1200 of her money went into the purchase of this SO acres. There is some testimony tending to show that some of it—how much does not appear—may have gone into rebuilding a barn and repairing the house situated on other lands. But the testimony on that is too indefinite to warrant consideration. The appellant herself, according to the testimony of a witness, and speaking of this 80 acres, said that there was a joint deed to it between her husband and herself and that her money went into the purchase of the land with that of her husband. A witness testified that If the presence of plaintiff Mr. Deer said, referring...