Hanne v. Watters

• Decision Date: 29 February 1932
• Citation: 47 S.W.2d 182,226 Mo.App. 810
• Parties: F. J. HANNE, PUBLIC ADMINISTRATOR, ETC., APPELLANT, v. ELSIE WATTERS, RESPONDENT
• Court: Kansas Court of Appeals

47 S.W.2d 182

226 Mo.App. 810

F. J. HANNE, PUBLIC ADMINISTRATOR, ETC., APPELLANT, v. ELSIE WATTERS, RESPONDENT

Court of Appeals of Missouri, Kansas City

February 29, 1932

Appeal from the Circuit Court of Gasconade County.--Hon R. A. Bruer Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

Jesse H. Schaper, Randolph H. Schaper and L. G. Graf for appellant.

W. L Cole and T. P. Hukriede for respondent.

OPINION

TRIMBLE P. J.

This is a suit in equity filed May 22, 1930, by the administrator, with will annexed, of the estate of John W. Grannemann, deceased, in which he is seeking to set aside a judgment rendered at the August term, 1928, of the Probate Court of Gasconade county, Missouri, wherein an allowance was made of a demand in favor of defendant and against the estate of John W. Grannemann, deceased, for the sum of $ 3880. Said suit to set aside said judgment or allowance was based on the charge that the defendant represented to the Probate Court that said demand was founded upon a judgment for that amount of alimony in gross awarded to her in a divorce action between her and the deceased wherein she, under her then name of Elsie Grannemann, was awarded the divorce and said sum of alimony in gross, and falsely and fraudulently, and with intent to deceive and defraud the Probate Court and the estate of said John W. Grannemann, deceased, did represent to said court that the said estate was indebted to her in that amount on said judgment for alimony, and did, by her false and fraudulent statements and representations made to the court at the hearing on said demand, and by means of the false and fraudulent allegations contained in said demand, procure the said judgment of allowance on her said demand against said estate in her favor of said sum of $ 3,880, when in truth and in fact, as defendant well knew, the said judgment of alimony was theretofore on the 12th day of April, 1924, in the lifetime of said John W. Grannemann, fully paid by him to defendant and the estate of said deceased was not indebted to her in an amount. The petition alleged that plaintiff as administrator with will annexed had no notice, information or knowledge of said allowance of $ 3,880 in favor of defendant and against said estate in the probate court until long after the final adjournment of said August, 1928, term of said Probate Court, whereby he had no adequate remedy at law in the premises.

At the return day of the summons on September 9, 1930, being the second day of the term, defendant filed her answer to the petition, wherein she admitted the death of John W. Grannemann; admitted that the estate was administered as plaintiff set out; that defendant presented her demand against said estate and it was allowed in the sum of $ 3,880; and defendant then denied each and every other allegation in said petition contained.

Thereafter at the September, 1930, term of said Circuit Court, the case was tried upon the pleadings and the evidence adduced before the court sitting as a chancellor, and at the close thereof the court found the issues in favor of defendant and dismissed plaintiff's petition. From this, the plaintiff has duly appealed.

The record discloses that the defendant was formerly Elsie Grannemann, wife of John W. Grannemann, and from whom she obtained a divorce on the 13th day of May, 1922, in the Circuit Court of Gasconade county, in which she was awarded the care and custody of the six minor children ranging in age from the eldest, 16 years of age, to the youngest, 16 months old. In said decree of divorce defendant was awarded as alimony the sum of $ 60 per month to be paid by the defendant therein on the first day of each month, the first payment to be made on June 1, 1922, and to continue with a like payment on the first day of each month thereafter. John W. Grannemann died May 23, 1928, and shortly thereafter Henry J. Grannemann duly qualified as executor and took charge of said estate.

It was further shown in evidence that the executor named in the will, Henry J. Grannemann, was drowned in August, 1929, and thereafter the plaintiff, Hanne, public administrator, was appointed administrator, with the will annexed, of said John W. Grannemann's estate and took charge thereof and of all the papers in said estate. He found no writing, among those papers, between Elsie Grannemann and John W. Grannemann in reference to a decree of divorce or of a settlement of alimony between them. He did not find among those papers any notice of a demand filed by Elsie Grannemann against said estate. The first time he learned that there was an allowance of $ 3,880 in favor of Elsie Watters against the estate of John W. Grannemann, deceased, was on November 29, 1929, when he was preparing to make a final settlement of said estate, and at that time he was advised not to pay it.

The plaintiff introduced L. R. Wentzel, who is, and was, clerk of the Circuit Court of Gasconade county, Missouri. He testified that he knew Elsie Grannemann and John Grannemann and had known them ever since the time of the divorce suit and up to the date of the latter's death; that "to the best of my memory I was present" when Elsie Grannemann signed her name to the release on the margin of the record of the judgment for alimony in gross in the divorce suit between the Grannemann's, said release being as follows:

"I, the undersigned, hereby enter satisfaction in full of the judgment for alimony on this page recorded. This 12th day of April, 1924. All accrued and to accrue alimony having been paid in full.

"ELSIE GRANNEMANN.

"Attest: L. R. WENTZEL."

Wentzel testified that he attested the release by signing his name thereto in her presence at the time therein stated; that he did not remember whether it was Mr. Graf or Mr. Ellis who was present when she signed the release, but one or the other of these men was present; that he did not remember which one of the men wrote the release. He was not sure in whose handwriting the release was, but if he was allowed to express an opinion he would say it was in Mr. Leander Graf's.

W. J. Ellis, a lawyer practicing at the county seat where this took place, testified that he had known John W. Grannemann since 1907 or 1908; that he had met Elsie Grannemann, his wife, now the plaintiff Elsie Watters a few times; that in April, 1924, or about that time, he attended to some business for them, with reference to the drawing of some papers between them relating to the acknowledgment of the satisfaction of a judgment in the Circuit Court of Gasconade county in a divorce case wherein there was a decree for alimony. He did not recall just what it was he did. He might not have drawn the paper himself, but anyway they came to his office and had such a paper writing and he and they went to the office of the clerk of the Circuit Court, Mr. L. R. Wentzel; that in said office Mr. Grannemann paid his divorced wife some money and he, witness, went and got the record book "in which this judgment was recorded." When asked what judgment he referred to, he replied "For alimony that he was paying, and they agreed to settle it all and be done with it."

Upon an objection being made that he should state the words they used in making the agreement, he was asked:

"Q. Give as near as you can what they said, or the substance of it? A. The substance of it was in a paper writing, I don't know what it was, it was an agreement.

"Q. Did you see them sign any paper writing? A. Yes, sir.

"Q. What connection did that paper writing have with the satisfaction of this judgment in the case of Elsie Grannemann against John W. Grannemann, the divorce decree? A. The substance of the paper writing was copied on to that record there.

"Q. You referred a moment ago to the fact that you went to Mr. Wentzel's office and obtained the judgment record containing the record of the judgment in this case, was Mr. Wentzel present? A. Yes, sir, but the paper was signed in the Hermann Savings Bank.

"Q. The paper writing that you referred to? A. Yes, sir; at Mr. Meyer's desk.

"Q. Before or after the transaction in the clerk's office? A. Before the transaction.

"Q. You went up to the courthouse with them? A. Yes, sir.

"Q. Tell what took place in the clerk's office in the court house? A. They were in there and paid over the money, and I went and got the record in there and wrote this satisfaction there.

"Q. The entry on the margin? A. Yes, sir.

"Q. Read here in evidence by Mr. Wentzel? A. Yes, sir; and Mrs. Grannemann at that time signed it, and Mr. Wentzel attested it.

"Q. That was all done in the presence of Mr. and Mrs. Grannemann, and in the presence of the clerk and yourself? A. Yes, sir.

"Q. Was that all of the transaction that you remember? A. That is all I remember."

On cross-examination, the witness testified that he first met them that day in the bank, he was called there from the postoffice by Mr. Robein or someone; that "if I ain't mistaken we walked up to my office;" that they were there for awhile; and then came back to the bank; that he did not remember whether he wrote the paper or not, "but anyhow they signed the paper writing in the Hermann Savings Bank at Mr. Meyer's desk, he was president of the bank." Witness further said that he did not know, at the time of the trial, the amount of money Mr. Grannemann paid for the release of the judgment, but that he did know at the time it was paid. It was in the paper writing, but he did not remember what it was, but it appeared to him that it was $ 1000 though he said he was not "clear about that." When asked who the woman was that was there with Mr. Grannemann, he replied, "It was this lady sitting here (indicating). I am almost positive. I think it was."

Mr Robein, assistant...