Ex Parte Gfeller

• Decision Date: 30 June 1903
• Parties: Ex parte GFELLER.
• Court: Missouri Supreme Court

77 S.W. 552

178 Mo. 248

Ex parte GFELLER.

Supreme Court of Missouri, Division No. 2.

June 30, 1903.^*

ADMINISTRATION OF DECEDENT'S ESTATE— PROCEEDINGS FOR DISCOVERY OF ASSETS— RIGHT OF HUSBAND TO INSTITUTE—PROPRIETY OF TAKING DEPOSITIONS—WITNESS' REFUSAL TO ANSWER QUESTIONS — HABEAS CORPUS — ATTORNEY AS WITNESS — PRIVILEGED COMMUNICATIONS—WAIVER BY CLIENT'S REPRESENTATIVE — INCRIMINATING MATTERS—CLAIM OF PRIVILEGE.

1. Rev. St. 1899, § 74, requires, as a preliminary to a proceeding in the probate court for the discovery of assets belonging to a decedent's estate, that some "person interested" shall file an affidavit of his belief that some person has concealed or embezzled, etc., such assets. Held, that the decision of the probate court that the husband of the decedent is interested in her estate, so as to warrant his filing the affidavit, is not open to review on habeas corpus to release a witness refusing to answer questions in the proceeding.

2. Under Rev. St. 1899, § 2938, entitling a husband, where there are no children, to one-half of the wife's estate absolutely, the husband is a person interested in the estate, within section 74, authorizing a "person interested" to file an affidavit preliminary to proceedings for the discovery of assets.

3. A proceeding for the discovery of assets belonging to decedent's estate is "a suit pending," within Rev. St. 1899, § 2877, providing for the taking of depositions in a suit pending, even though the person from whom discovery is sought is charged with embezzlement of the assets; and the notary before whom the depositions are taken has authority to require a witness to answer all legal and proper questions.

4. The institution by an executor of proceedings for the discovery of assets of the estate amounts to a waiver of the privileged character of communications between decedent and her attorney, who is called by the executor as a witness.

5. In proceedings for the discovery of assets belonging to a decedent's estate, a witness against whom similar proceedings had also been instituted was asked when he last saw certain securities belonging to decedent, and whether at or shortly after her death he had any money belonging to her, and what he did with it. The witness declined to answer on the ground that he was decedent's attorney at the time of her death. Held, that none of the questions required the witness to violate any professional confidences.

6. The witness also declined to answer on the ground that in the proceeding against himself he was charged with embezzlement. Held, that none of the questions called for matters tending to incriminate him.

7. On habeas corpus by a witness committed for contempt in refusing to answer questions before a notary in the taking of depositions, the notary's determination as to the relevancy and materiality of the evidence sought is conclusive.

8. The refusal of a witness to answer questions because the information sought might be used in a proceeding against him in which he is charged with embezzlement, and because the federal and state Constitutions protect him from giving testimony which may lead up to the establishment of any facts supporting a criminal charge against him, does not constitute a refusal to answer on the ground that the evidence sought will tend to incriminate him, so as to amount to a claim of privilege.

Habeas corpus by Alfred Gfeller against the sheriff of the city of St. Louis to secure release from custody after being committed by a notary for refusing to answer questions as a witness. Petitioner remanded.

Geo. D. Reynolds and C. W. Holtcamp, for petitioner. J. Hugo Grimm, for respondent.

BURGESS, J.

Catherine Linze died at the city of St. Louis, leaving, surviving her, her husband, Henry Linze. In November, 1901, letters testamentary were duly granted by the probate court of said city upon her estate to the St. Louis Trust Company, in pursuance of her will, duly admitted to probate by said court. On October 11, 1902, the petitioner in this case, Alfred Gfeller, was arrested and held in custody by the sheriff of the city of St. Louis under a commitment issued prior thereto by one Augustus M. Wood, a notary public within and for the city of St. Louis. On the same day Gfeller presented his petition to the Honorable Thomas A. Sherwood, one of the judges of this court, praying for his discharge under and by virtue of the habeas corpus act. The petition was duly verified, and the petitioner being brought before Judge Sherwood, in chambers at St. Louis, a writ of habeas corpus was ordered to issue, returnable to this court in term. The facts are as follows:

The estate of one Catherine Linze being in course of administration in the probate court of the city of St. Louis, the St. Louis Trust Company being executors, the widower, Henry H. Linze, filed in said court two affidavits, in one of which he charged "that he had good cause to believe, and does believe, that Alfred Gfeller has concealed or embezzled various goods, chattels, wares, merchandise, notes, certificates of deposit, bonds, stock in corporations, and other property, evidences of debt and choses in action of the deceased, amounting in the aggregate to between $40,000 and $70,000, and constituting the bulk of her estate; and the said Alfred Gfeller has such property in his possession, or under his control, and refused to deliver it up to the St. Louis Trust Company, executor of Catherine Linze, deceased, upon demand made therefor." In the other, Linze charges "that he has good cause to believe, and does believe, that Frederick N. Eckerle has concealed or embezzled various goods, chattels, wares, merchandise, household articles, glassware, and other personal property of the deceased, the exact value of which the affiant cannot state, but which he believes to be over $500, and that said Frederick N. Eckerle had such property in his possession or under his control, and refused to deliver them up to the St. Louis Trust Company, executor of Catherine Linze, deceased, upon demand made therefor." Gfeller and Eckerle filed answers to the citations, in which they denied that Henry H. Linze had any interest in the estate of his wife, and averred that she died testate without issue, and that the first clause of her will, which had been duly probated, read as follows: "I declare that I am now married to Henry H. Linze, and that I have no children, and that all the property, real, personal, and mixed, which I now possess, and which I desire to dispose of hereby, is my absolute property, and that my said husband has in no wise contributed thereto, nor has he any interest therein." The answers then severally deny that they have concealed or embezzled any of the various goods, chattels, etc., belonging to the estate of the said Catherine Linze, as charged in the affidavits, or that they have any of them in possession or control; and Gfeller denies that Catherine Linze died seised of an estate amounting to between $40,000 and $70,000, as alleged in the affidavit.

Afterwards the trust company, as executor, filed written interrogatories "to be answered in writing" by Eckerle. Those propounded to Eckerle, and his answers thereto, are as follows:

"Interrogatory 1. Is it not a fact that between November 10, 1901, and November 20, 1901, a large quantity of cut glass, silks, satins, linen, curtains, portières, vases, ornaments, clocks, and silverware were taken and removed from the residence of Catherine Linze, lately deceased, and that thereafter a portion of said articles came into your possession, custody, or control? Answer. Mrs. Catherine Linze was my aunt. She took me to raise when I was about twelve years old. I am now about thirty-five years of age. As I had a stepmother, and could not get along with her, and my aunt didn't have any children, she proposed to my father to take me and pay all my expenses, and educate me, clothe me, and to recognize me as her child. My father assented to this arrangement, and relinquished all supervision and control over me in favor of my aunt, who was then Mrs. Becker; her first husband, Mr. Becker, then being alive. I lived with my aunt Mrs. Linze, formerly Mrs. Becker, and was recognized by her as an adopted son, until about three months before my aunt's death, when I married and set up housekeeping for myself. About three weeks before my aunt's death, she bought a lot of household goods, and added to them a lot that was in her house, gave them to me, and had them removed to my house. A day or two before my aunt died, she had two lady friends of hers remove a picture of herself and my young sister, a clock which I had given her, a lot of dresses, some cut glass ware—mainly the pieces of cut glass ware that in the past twenty years I had presented to her—a lot of linen, curtains, mantel ornaments, pictures of relations, and a carving set which I had given her, from her house to the house of one of these ladies, with directions to the lady to give them to me. Afterwards my aunt told me what she had done; that these articles were there for me; and that I should hold them as a sacred gift from her, and never sell them. These are all of the articles specified in the interrogatory which came into my possession, and I hold and claim them as my property, by virtue of the gift of them of my aunt to me during her lifetime.

"Interrogatory No. 2. Is it not true that at the time of Catherine Linze's death, and at the time of the service of the citation in this case upon you, you had in your possession, custody, or control the articles mentioned in the last preceding interrogatory, or a portion thereof? Answer. I refer to my answer to interrogatory No. 1.

"Interrogatory No. 3. Did you at the time of the death of Catherine Linze, or at the time of this citation upon you, or at any intermediate time, or at any time since, have in your care, custody, or control any money, bonds, stocks, securities, or other personal property...