Gray v. Doubikin

• Decision Date: 03 May 1915
• Docket Number: No. 11544.,11544.
• Citation: 176 S.W. 514,188 Mo. App. 667
• Parties: GRAY v. DOUBIKIN.
• Court: Missouri Court of Appeals

176 S.W. 514

188 Mo. App. 667

GRAY v. DOUBIKIN.

No. 11544.

Kansas City Court of Appeals. Missouri.

May 3, 1915.

Appeal from Circuit Court, Miller County; J. G. Slate, Judge.

Action by Lizzie A. Gray against J. W. Doubikin, to compel inventory of an estate. From a judgment for plaintiff, defendant appeals. Affirmed.

Pope & Lohman, of Jefferson City, and W. S. Stillwell, of Tuscumbia, for appellant. Barney Reed, of Ulman (Sidney C. Roach, and A. I. Lodge, both of Linn Creek, of counsel), for respondent.

JOHNSON, J.

Plaintiff began this suit in the probate court of Miller county under section 74, R. S. 1909, against the administrator of her father's estate, to compel him to inventory 10 shares of the capital stock of the Farmers' & Traders' Bank of Iberia as property of the estate. In answer to the interrogatories defendant, who is the brother of plaintiff, stated, in substance, that the stock which was evidenced by two certificates for five shares each belonged to him as a gift from his father. A trial in the circuit court, to which the cause was appealed, resulted in a judgment awarding half the stock to plaintiff and the other half to defendant. We reversed that judgment, and remanded the cause on the ground that the only issue presented by the pleadings and evidence was whether the stock in its entirety was the _property of defendant, in virtue of the alleged gift, or belonged to the estate and should be included in the inventory thereof, 179 Mo. App. 240, 166 S. W. 1070. The second trial ended in a verdict and judgment which decided this issue in favor of the estate, and defendant appealed.

Thomas Doubikin died intestate in a hospital in St. Louis shortly after undergoing a surgical operation, and was survived by his widow, defendant (his only son), and five daughters. On the day before his departure from his home in Iberia for St. Louis, and in fear that the operation might result in his immediate death, he assigned the certificates in question to defendant. The cashier of the bank, introduced as a witness by defendant, testified that, in response to a request from Mr. Doubikin, he visited him at his home on that day and was asked how the stock might be transferred to defendant in a way that would enable him to reclaim it if he survived the operation. Nothing was said at this interview about the disposition defendant should make of the stock if Mr. Doubt/an did not survive the operation. The cashier suggested making the assignment in pencil, and explained that if made in ink it would be possible for defendant to procure new certificates issued to himself and thereby prevent Doubikin from reclaiming the stock if he survived the operation.

Defendant was not allowed to testify, being disqualified as a witness, and there is no evidence of a delivery of the certificates to him by his father, and no fact from which such delivery might be inferred, unless the fact that defendant had possession of the certificates on the day of his father's funeral be regarded as such evidence. An unmarried daughter of Doubikin, who lived with her parents, testified that her father kept the certificates and other valuable papers at home in a box, and that on the day before he went to St. Louis he had her bring the box to him and then, in a short time, had her return it to the place from which she had brought it, and that he said to her: "I have signed the bank stock over to Walter to see after until I get back," and further said that if he did not survive the operation, he wished the stock divided among his children. There...