Dusenbery's Estate v. Stamm

• Decision Date: 17 February 1953
• Docket Number: No. 28517,28517
• Citation: Dusenbery's Estate v. Stamm, 255 S.W.2d 57 (Mo. App. 1953)
• Parties: DUSENBERY'S ESTATE et al. v. STAMM et al.
• Court: Missouri Court of Appeals

Page 57

255 S.W.2d 57

DUSENBERY'S ESTATE et al. v. STAMM et al.

No. 28517.

St. Louis Court of Appeals, Missouri.

Feb. 17, 1953.

Rehearing Denied March 13, 1953.

George S. Roudebush, St. Louis, for Mercantile Trust Co., appellant.

S. C. Rogers, St. Louis, for affiant and Lillie Belle Peck, appellants.

David Y. Campbell, St. Louis, for Gustave A. Stamm, respondent.

Richard S. Bull, St. Louis, for Washington University, respondent.

WOLFE, Commissioner.

This action was brought by Charles Gordon Peck, who, as a grandnephew of the deceased, Rebecca P. Dusenbery, claims that he is entitled to a distributive share of her estate and consequently has an interest in it. He filed in the probate court an affidavit in which he averred that Gustave A. Stamm, Washington University, a corporation, and certain named others were withholding property and money belonging to the Estate of Rebecca P. Dusenbery, and he prayed the court to cite the persons named, to answer the charges made. Peck and the executors of Rebecca P. Dusenbery's estate filed interrogatories directed to all those named in the affidavit and each of them answered. Upon a hearing the probate court dismissed the citation and an appeal was taken to the circuit court. The circuit court, upon motion, dismissed as to all those cited except Gustave A. Stamm and Washington University. The trial was to the court, and after a hearing as to the remaining respondents it dismissed the citation, and it is from this order that the corporate executor and two heirs took this appeal. Rebecca Dusenbery's will provided for two executors, Ewald F. Sunkel and the Mississippi Valley Trust Company, but Sunkel is now deceased and the Mississippi Valley Trust Company merged with the Mercantile Trust Company, which by substitution is the executor appellant.

The facts as disclosed by the evidence show that Rebecca Dusenbery and Belle P. Bryant were widowed sisters and the daughters of Charles H. Peck, deceased. They lived together for many years in a house, which they inherited from their father, at No. 7 Vandeventer Place, in the City of St. Louis. Their sleeping quarters were on the second floor. Belle had, for her personal occupancy, two rooms and a bath on the east side of the house while Rebecca used similar rooms on the west side. On August 8, 1942, Belle P. Bryant died, and, after certain bequests, left the residue of her estate to Washington University. Her executor was Gustave A. Stamm. After her death he called at No. 7 Vandeventer Place with a Judge McDonald and Mr. Sunkel to go through her effects and to inventory them for the purpose of administration.

Rebecca Dusenbery's nurse, who testified on behalf of the executors, related what occurred after Belle P. Bryant's death. She said that when the gentlemen mentioned called to take an inventory of Belle's property Rebecca Dusenbery refused to let them open the dresser drawers, go through the closets or open a trunk that was there. When she was informed that under the law she was obliged to permit an inventory to be made of the property that belonged to her sister, she said, 'I will not allow it', and the argument was finally concluded by Mr. Stamm saying, 'Well, she is an old lady; let's wait a while.' At that time Mrs. Dusenbery was about ninety years of age. The nurse testified that the appraisers left and about a week later she was present when Belle's trunk was opened at the direction of Mrs. Dusenbery, who asked her to see what was in it. The nurse informed Mrs. Dusenbery that there was a billfold in the trunk containing considerable money and there was also some jewelry there. When she informed Mrs. Dusenbery of this, Mrs. Dusenbery said, 'You keep your mouth shut and be smart like I am, you are working for me.' The witness also testified that Rebecca Dusenbery prior to her sister's death paid all of her bills by check but Belle Bryant kept large sums of cash on hand. She also stated that after Belle's death Rebecca Dusenbery started paying her bills in cash.

The executors of Rebecca Dusenbery also called to the stand a Miss Walker, who had been Mr. Stamm's secretary, and who testifield that shortly after Belle's death Rebecca phoned her almost every day concerning some claim that she said she had against Belle's estate, and she was always informed that she should have Judge McDonald prepare a claim and present it for allowance in the probate court. In November of that year she phoned Miss Walker and when Miss Walker inquired about her claim she was told by Rebecca that it was none of her business and that she, Rebecca, had been paid and didn't need to file a claim.

In 1947, Rebecca Dusenbery died, and the same nurse who had been with her at the time of her sister's death called Mr. Stamm, who came to the house to make funeral arrangements and search for a will. In going through the various effects in the rooms occupied by Rebecca Dusenbery a billfold containing four $500 bills, an unmarked locked tin box and a valise with the initials B. P. B. upon it were found in the closets. These were taken by Mr. Stamm and placed in a safe and on the day following three other tin boxes were found, one of which was marked Rebecca Adams Peck, and the other two were marked Rebecca P. Dusenbery. These also were turned over to Mr. Stamm for safekeeping.

At the request of Judge McDonald, who had been Rebecca Dusenbery's personal attorney, Mr. Stamm had drawn a will for Rebecca Dusenbery in which she had named as her executors Ewald Sunkel and the Mississippi Valley Trust Company, so Mr. Stamm called Mr. Sunkel and asked him to come to his office where they decided that the boxes should be opened to see if they contained a will. No will was found in them and the next day all of the boxes, etc. were taken to the Mississippi Valley Trust Company and placed in a safe deposit box. Soon thereafter the will was found and Mr. Stamm again met with Mr. Sunkel, the co-executor, to determine the ownership of the property they had taken from No. 7 Vandeventer Place. With them at the time was Elizabeth Walker, Mr. Stamm's secretary, C. C. Aehle, a jeweler, who had made jewelry for both Belle Bryant and Rebecca Dusenbery and was familiar with the jewelry belonging to both of them, and a niece named Mrs. Butcher.

On the information given them by the nurse it was decided that the cash in the billfold, which had been Belle Bryant's, belonged to the Belle Bryant estate and the same conclusion was reached as to the jewelry in the handbag bearing her initials, for this jewelry was identified by Mr. Aehle as belonging to Mrs. Bryant. The tin boxes contained silverware which was readily identified by monograms engraved upon the various pieces, so those bearing the Bryant monogram were set aside as a part of the Belle Bryant estate. After thus determining the ownership of the various items, property appraised at $11,757 was taken over by Rebecca Dusenbery's executors and there was turned over to Stamm as the executor for Belle Bryant $2,000 cash and jewelry and silverware appraised at $3500.

Administration of Belle Bryant's estate was reopened and the cash, jewelry and silverware were listed in a supplementary inventory. By an order of distribution later entered the cash and other items, less expenses, were turned over to Washington University, which sold the jewelry and silverware and added the proceeds of the sale to the cash it received, and credited the total to an endowment fund set up by the terms of Belle Bryant's will.

It is this $2,000 cash and the property valued at $3500 that Charles G. Peck, grandnephew of Rebecca Dusenbery, seeks by these proceedings to have turned over to Rebecca Dusenbery's estate.

The interrogatories inquired of Gustave Stamm if 'he caused to be removed from the premises occupied' by Rebecca Dusenbery any cash, jewelry and silver, and to this question he answered 'Yes'. To a question relating to the disposition of the property he answered giving in detail the facts set forth above. Washington...