Evans v. Williams

• Decision Date: 02 April 1928
• Parties: C. C. EVANS, ADMR., ETC., RESPONDENT, v. SUSAN T. WILLIAMS, APPELLANT. [*]
• Court: Kansas Court of Appeals

4 S.W.2d 867

222 Mo.App. 705

C. C. EVANS, ADMR., ETC., RESPONDENT, v. SUSAN T. WILLIAMS, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

April 2, 1928

Appeal from the Circuit Court of Worth County.--Hon. John M. Dawson Judge.

AFFIRMED.

Judgment affirmed.

John Ewing and Ed Kelso for respondent.

O. B Hudson for appellant.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action to recover possession of a promissory note alleged to be unlawfully claimed by defendant, the controversy being over the ownership of said note.

The facts of record are that one W. G. Evans was the owner of a farm in Worth county, Missouri, where he resided with his children before and after the death of his wife; that he sold his farm realizing therefrom the sum of $ 3500; that $ 2500 of this amount he loaned to one G. W. Mathews, taking his promissory note therefor, payable to the order of W. G. Evans, dated January 10, 1919, payable on or before January 10, 1924, at six per cent interest and signed by G. W. Mathews and Genie Mathews, his wife, secured by a deed of trust on forty acres of land in Worth county, Missouri. The said note was assigned by the payee to James T. Evans and Irvin E. Williams, and thereafter was indorsed on the back by James T. Evans, Zulma Evans, Susan T. Williams and Irvin E. Williams, and stamped on the face thereof: "Cancelled Dec. 26, 1923; Samuel A. Cloud, Recorder." Also stamped on the face "Paid Dec. 20, 1923, Bank of Denver."

On December 20, 1923, a new note payable to W. G. Evans was executed by said Mathews and wife for the same amount and delivered to W. G. Evans in lieu of the note first above mentioned. The last named or renewal note was due in three years at six per cent interest and was unsecured. On the back appears the following indorsement: "Interest paid to Dec. 20, 1924." W. G. Evans died August 5, 1925, leaving surviving him three children, all married, C. C. Evans, a son, was duly appointed administrator of deceased's estate and brought this suit in behalf of the estate against defendant Susan T. Williams, a daughter of the deceased. The suit was originally instituted in the probate court of Worth county, Missouri, by the filing therein of an affidavit executed by C. C. Evans, administrator, on January 9, 1926, stating he has good cause to believe and does believe that one Susan T. Williams has concealed and embezzled and is otherwise wrongfully withholding from said administrator one promissory note, of date December 20, 1923, for the sum of $ 2500, which said note is signed by G. W. Mathews and his wife, Genie Mathews, which said note was and is made payable in three years after date, with interest at six per cent per annum, payable annually, and interest accumulated therein in the sum of $ 210, or thereabouts, and that Susan T. Williams has said note in her possession and under her control. Scire facias was issued thereon and served upon defendant. In response thereto defendant appeared before the probate court and was examined; thereafter interrogatories were filed by plaintiff and answers thereto were filed by defendant in the probate court. As these interrogatories and answers form the basis of a charge of error on this appeal, it is deemed best to set them out herein, as follows:

"No. 1. Have you in your possession a promissory note of date December 20, 1923, due in three years after date, given by G. W. Mathews and Genie Mathews to W. G. Evans, now deceased, and belonging to the estate of said W. G. Evans, deceased?

"No. 2. If you say you have possession of that note, how did you obtain possession of that note, and why do you not deliver said note to the administrator of the estate of said W. G. Evans, deceased?"

The answers of defendant to said interrogatories were as follows:

"Answer to interrogatory No. 1. Yes.

"Answer to interrogatory No. 2. The note was delivered to me by the Bank of Denver, and I refused to deliver possession of it to the administrator of the estate of W. G. Evans, deceased, because it belongs to me and is not the property of said estate."

In addition to the interrogatories and answers there was evidence introduced. The probate court ruled that upon the pleadings and evidence plaintiff was entitled to recover and judgment was accordingly entered finding that at the commencement of the action the note in question was wrongfully held by defendant. An appeal was taken to the circuit court of Worth county and the cause was there tried before the court and jury, resulting in a verdict and judgment for plaintiff. Defendant appeals. No other pleadings than those above mentioned were filed.

The record discloses that C. C. Evans, referred to in the evidence as Chris, administrator of the estate and plaintiff herein, Susan T. Williams, defendant, and James T. Evans, referred to in the record as Taylor, are the only surviving children of W. G. Evans, deceased, and are the immediate parties in interest herein. The question at issue is the ownership of the note in question, plaintiff claiming it as the property of the estate of W. G. Evans, and defendant claiming it by virtue of a verbal contract between defendant and her father whereby she agreed to take care of him as long as he lived; and further claiming she had received nothing from her father while her brothers, Chris and Taylor had each received his share.

At the beginning of the trial in the circuit court, on motion of plaintiff, defendant was required to assume the burden of showing that she is the owner of the note in controversy. Defendant saved her exception to this ruling and now makes it the basis of a charge of error. On the trial defendant, testifying in her own behalf, admitted she was in possession of the note in question; that said note had not been indorsed by W. G. Evans but that the same was delivered to her by her father in his lifetime, under a verbal contract entered into between them, by the terms of which W. G. Evans was to make his home with defendant during the remainder of his life; that defendant was to take care of him, furnishing his board, washing, clothing and necessary medical care; that defendant accepted said note in full consideration for said services; that after making said contract W. G. Evans made his home with defendant and in every way she had faithfully performed her part of said contract; that after the contract was made defendant had requested her father to place the note for safe keeping for her in the Bank of Denver, Denver, Missouri, and agreed that as the interest matured on said note, he could collect it for his own personal use, and that if not sufficient for such purpose, defendant would make up the difference, which she did. In these statements defendant was corroborated by other witnesses, to-wit, her husband and others.

It appears in evidence that W. G. Evans made his home with defendant on her farm part of the time, and part of the time lived with the son Taylor, who resided in the City of St. Joseph, Mo.; that in August, 1925, decedent went to St. Joseph to remain awhile with his said son; that he became quite ill and was taken to a hospital where his death occurred on August 5, 1925. It also appears that defendant and her brother Taylor each paid one-half the expense of decedent's last sickness and burial. Defendant testified that the payment of one-half said expenses by her brother Taylor was voluntary on his part. It is upon these circumstances that defendant claims ownership of the note in question.

Evidence introduced in behalf of defendant was to the effect that plaintiff C. C. Evans and Taylor Evans each had previously received his share of the father's estate during the father's lifetime, and that defendant had received nothing therefrom until he delivered to her the note in controversy. In behalf of plaintiff the evidence discloses that about the year 1921, W. G. Evans was security on some notes and other obligations not definitely enumerated; that decedent was then past seventy years of age. In order that a forced payment of said claims might not deplete his estate, on March 31, 1921, he entered into a written contract with defendant and her husband and with the son Taylor and his wife, providing that in consideration of their support and maintenance of him and the expenses of his last sickness and burial, they were to have the certain note above mentioned then owned by him and which was executed by G. W. and Genie Mathews, secured by a deed of trust, and that this note was all the property he had; that by making said contract and delivering the note to his said children, he would have no property and so could not be made to respond on his said security obligations. The said note was indorsed by W. G. Evans and delivered to defendant under the terms of said contract for the use of herself and Taylor Evans. It appears further that after making said contract and after the expiration of a few years, the notes and other obligations upon which decedent was surety were paid and cancelled; and that the two children with whom he had made the written contract above mentioned, and which was introduced in evidence, indorsed the said $ 2500 note without condition and delivered it to decedent. That note then was cancelled and marked paid and a new one in the same amount in lieu thereof was issued, and this is the note in controversy here.

At this point there is a conflict in the evidence. In behalf of plaintiff the testimony tends to show that the note was taken by decedent and placed in the vaults of the Bank of Denver in his name for safe keeping; while in behalf of defendant the evidence tends to show that decedent delivered the note to her under the terms of the verbal contract, and that she...