Glauert v. Huning

• Decision Date: 09 April 1956
• Docket Number: No. 1,No. 44910,44910,1
• Citation: 290 S.W.2d 126
• Parties: William GLAUERT, Guardian of the Person and Estate of Henry Glauert, non compos mentis, William Glauert, August Glauert, Theodore Glauert, Edward Glauert, Katherine Glauert Johnston, and Lydie Glauert Carver, Plaintiffs-Respondents, v. Ernst HUNING, Nellie M. Huning, His Wife, Ernst Huning, Executor of the Estate of Ida K. Warmann, Deceased, Emelia Schlingmann, Lizzie Schlingmann, Lena Rueweler, Della Boeckhaus, and William Boeckhaus, Her Husband, Defendants- Appellants
• Court: Missouri Supreme Court

Page 126

290 S.W.2d 126

William GLAUERT, Guardian of the Person and Estate of Henry

Glauert, non compos mentis, William Glauert, August Glauert,

Theodore Glauert, Edward Glauert, Katherine Glauert

Johnston, and Lydie Glauert Carver, Plaintiffs-Respondents, v. Ernst HUNING, Nellie M. Huning, His Wife, Ernst Huning,

Executor of the Estate of Ida K. Warmann, Deceased, Emelia

Schlingmann, Lizzie Schlingmann, Lena Rueweler, Della

Boeckhaus, and William Boeckhaus, Her Husband, Defendants- Appellants.

No. 44910.

Supreme Court of Missouri, Division No. 1.

April 9, 1956.

Rehearing Denied May 14, 1956.

John A. Nolan, Carl V. Eimbeck, Clayton, for appellants.

Cox, Cox & Cox, Harvey B. Cox, William A. Moffitt, Jr., St. Louis, Finley, Lucas & Arnold, John A. Arnold, Ralph T. Finley, St. Louis, for respondents.

WESTHUES, Judge.

This is a suit to try and determine title to twelve parcels of real estate in St. Louis County, Missouri.

Plaintiffs alleged in their petition that they and the defendant Ernst Huning are the owners in fee of the twelve parcels of real estate claiming the same through their uncle, William H. Warmann. The defendants assert that they are the owners in fee of the property claiming the same through Ida K. Warmann who was the wife of William H. Warmann. A trial resulted in a decree for plaintiffs, that is, plaintiffs and the defendant Ernst Huning were declared to be the owners of the property. From that judgment, defendants appealed.

Title to the twelve parcels of real estate had been held in the name of Villiam H. Warmann and his wife, Ida K., as husband and wife. William H. Warmann died testate on October 18, 1942. By his will, dated April 1, 1942, he gave his real estate to his wife for life and at her death, to his nieces and nephews. Ida K. Warmann died testate on December 31, 1950. In her will, she gave her property to four sisters and her nephew Ernst Huning, to each a 1/5 interest.

Plaintiffs' theory was and is that Mr. Warmann was the real or equitable owner of the property in question even though title was in the name of Mr. Warmann and his wife; that Mr. Warmann and his wife had an understanding or agreement that Mr. Warmann's property was to go to his nieces and nephews and that Mrs. Warmann's property was to go to her heirs or to whom she wished to give it. Defendants denied that any such agreement existed and also defendant on other grounds which we shall discuss later in the opinion.

Before making a detailed statement of the present case, we call attention to the case of Glauert v. Huning, Mo., 266 S.W.2d 653, which was a suit by one of the plaintiffs in this case. In that case, August Glauert (also referred to as Gus) claimed that Mr. and Mrs. Warmann promised to give him a farm in Warren County and a parcel of real estate in St. Louis County in consideration of services performed by him for the Warmanns. By the will of Mr. Warmann, the two parcels of real estate were devised to August Glauert. By the will of Mrs. Warmann, her property was given to her sisters and a nephew, Ernst Huning, a defendant in the case now before us. Title to this property, that is, the two parcels claimed by August, had also been in the name of the Warmanns as husband and wife. On appeal, this court directed that a decree be entered in favor of August. We call attention to that case, not that it is controlling on any of the issues in the present case, but for reference and for a more detailed statement of the background and events occurring during the lives of the Warmanns.

The evidence in the case before us disclosed the following: Mr. Warmann was a bricklayer by trade. He acquired a brickyard which he sold in January, 1923, to the Hydraulic-Press Brick Co. of St. Louis for $100,000. Originally, he had been the owner of a one-half interest in the brick plant and about 1912, he had bought the other one-half interest. The Warmanns were married about 1915. Mr. Warmann at that time was about forty-five years old and Mrs. Warmann forty-two. They had no children. After the brickyard was sold, Warmann engaged in building houses and title to property purchased was placed in the name of Mr. Warmann and his wife. By the will of Mr. Warmann, as mentioned above, he devised a farm in Warren County, Missouri, and a parcel of real estate in St. Louis County, Missouri, to his nephew, August (Gus) Glauert. Those were the properties which were the subject matter of the lawsuit mentioned above. Mr. Warmann also made a special bequest of $10,000 to his wife and gave her a life estate in all of his real estate including that devised to August with full right and power to sell any part thereof, except the parcels devised to August, and to invest and reinvest the proceeds therefrom. These two parcels were not to be sold or encumbered. To his nephews, Charles and William Warmann, he devised a lot at 6400 Easton Avenue. To plaintiffs in this case, the Glauerts being his nieces and nephews, and to Ernst Huning, he gave all the rest and residue of his estate, share and share alike.

A few days after the death of Mr. Warmann, his widow called the defendant Ernst Huning and asked him to help her look over the papers belonging to her husband's estate. Huning's evidence given at the trial of Glauert v. Huning, supra, was read in this case. His testimony was that the deed to the farm in Warren County was found and that he at that time informed Mrs. Warmann that, according to the deed, Gus was not to get the Warren County farm; that title 'was in both names'; that he suggested to Mrs. Warmann that she employ a lawyer which she did, engaging Judge Hughes, formerly Probate Judge of St. Louis County, Missouri.

Thereafter, the will of Mr. Warmann was filed for probate and the estate was administered by August Glauert who had been named as executor. An inventory was filed in the probate court. The property listed in the inventory consisted of two lots valued at $2,200 and $2,000. There was also listed an undivided 1/5 interest in two other lots, each valued at $500; and a collector's deed to a part of a lot valued at $1,500. The total value of the real estate listed was $6,700. Personal property listed consisted mostly of notes and cash, also a truck and a car. The total value of personalty was $11,203.15. The final settlement offered in evidence showed a balance of $5,386.43 which sum the widow accepted in full payment of the special bequest of $10,000. Previously, the widow had been given her statutory allowance. The real estate was not sold. The evidence conclusively showed that Mrs. Warmann, during the remainder of her life after the death of her husband, dealt with all of the real estate including that which had been held as an estate by the entirety as though she had only a life estate therein. She accepted all of the provisions of the will and at no time made an election to reject the will and take her share as a widow. Even though she was given the power of sale by her husband's will, she refused to sell any part of the real estate. The only act on the part of Mrs. Warmann that gave the slightest indication of a claim of ownership of the fee was that by her will she devised all of her property (without describing it) to four sisters and Ernst Huning. Plaintiffs introduced an abundance of evidence that Mrs. Warmann had opportunities to sell some of the property but that she repeatedly refused, saying that she wanted to carry out her husband's wishes. On this point, plaintiffs offered the evidence of a number of witnesses who had testified at the trial of the case wherein August Glauert was plaintiff. For that evidence, referred to in the other case, see 266 S.W.2d loc. cit. 665(4). It will be noted that these witnesses testified that the reason Mrs. Warmann gave for refusing to sell the property was that it did not belong to her. However, there is no reference in the will of Mrs. Warmann of any desire on her part to make any provision for the plaintiffs in this case. Since title to the property was in the name of Mr. and Mrs. Warmann, it passed at Mr. Warmann's death to Mrs. Warmann. This title passed by her will to the defendants in this case.

For plaintiffs to recover in this case, and to overcome the effect of the title so vesting in the defendants, they, the plaintiffs, had the burden of producing evidence of a convincing nature that Mr. and Mrs. Warmann had an agreement or understanding that his property should go to his kin and Mrs. Warmann's property should go to her kin or as she desired. If such and agreement is not reduced to writing, then the statute of frauds steps in and prevents its enforcement unless the oral contract has been at least partially performed.

The inventory filed in the estate of Ida K. Warmann showed personal property, principally notes and cash, appraised at $37,184.84. Real estate listed included the twelve parcels of real estate involved in this case and also the two parcels which were decreed to be the property of August Glauert. The twelve parcels involved herein were valued at approximately $75,000. We are not concerned with the personal property.

The evidence showed beyond a doubt that the twelve parcels of property were obtained through funds belonging to Mr. Warmann. Plaintiffs introduced evidence of statements, made by Mr. Warmann as well as by Mrs. Warmann, that Mr. Warmann's property was to go to his nephews and nieces, principally the Glauert children of whom the Warmanns were very fond.

Mr. and Mrs. Harry Huskey were called by plaintiffs. Mr. Huskey testified that he was a good friend of the Warmanns; that he and Mr. Warmann were both interested in bird dogs; that Warmann often talked business matters over with him; that they talked about the brick plant; that he often visited in the home; that both of the Warmanns often spoke of how much they thought of the Glauert children.

Elsie Huskey, wife of Harry, testified that after 1936, they, the Huskeys and the Warmanns, visited...