In re Clark's Estate
| Decision Date | 21 September 1948 |
| Docket Number | 27334 |
| Citation | 213 S.W.2d 645 |
| Parties | In re CLARK'S ESTATE. CLARK v. BEASLEY et al |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
George L. Vaughn and Ellis S. Outlaw, both of St. Louis, for appellants.
Forgey & Sindel and Wm. F. Sindel, all of St. Louis, for respondent.
McCULLEN
This cause originated in the Probate Court of the City of St Louis upon a petition filed therein by Rosa M. Clark hereinafter referred to as respondent, for statutory allowances claimed by her as widow of Noah W. Clark, deceased. The Probate Court denied her claims, whereupon she appealed to the Circuit Court of the City of St. Louis. There was a trial before the court and a jury in the Circuit Court, resulting in a verdict in favor of respondent. The court entered judgment thereon that respondent should receive such allowances as she is entitled to as widow of the deceased, and directed the Probate Court to award her such allowances. From the judgment in favor of respondent the heirs of said Noah W. Clark, deceased, and the administrator d. b. n. of his estate appealed to this court.
Said appellants contended below, and contend in this court, that under Section 337, R.S.Mo.1939, Mo.R.S.A. § 337, respondent is not entitled to any allowances as widow of the deceased for the reason that she had forfeited her right thereto by having abandoned her husband without reasonable cause, and continued to live separate and apart from him during one whole year next before his death. Appellants also argue that the judgment of the Circuit Court should be reversed and respondent's petition dismissed, because, as they contend, the evidence is insufficient to sustain the judgment in her favor.
The evidence adduced at the trial in the Circuit Court shows that Noah W. Clark and Rosa Marks were lawfully married in the State of Georgia in the year 1908 and began to live there as husband and wife. Respondent herself testified as to the marriage and produced a certificate of the marriage. She stated that she had never been divorced from her husband and that at the time of his death, on June 30, 1943, she was still married to him. After giving such testimony respondent rested. Appellants then undertook to show, by cross examination of respondent and by other testimony and exhibits, that she abandoned her husband.
Practically all the evidence and testimony introduced by appellants went to show that during various periods of time after the marriage respondent did not accompany the deceased on his trips to, and residence in, his different pastorates. We think it is not necessary to set forth such testimony in detail because respondent frankly admitted that she did not actually live with the deceased during such periods. She asserted, however, that their living apart in the manner shown was by their mutual consent and agreement.
It appears from the record that at the time of said marriage Noah W. Clark was an itinerant minister in the Colored Methodist Episcopal Church; that he was engaged in preaching and teaching in the State of Georgia in the vicinity of the home of respondent at Midville in said state; that respondent accompanied her husband to his charges and lived with him during the first years of their marriage when he performed his duties as minister in Georgia near the home of respondent, which was then located near Midville, in that state, on a small farm; that after about four years of preaching in that vicinity Noah W. Clark was assigned to a larger church at Atlanta, Georgia, as its pastor, but respondent did not accompany him to said charge. Thereafter, Dr. Clark was assigned to various other charges, most of them being to larger churches of his denomination, particularly in Washington, D. C., Jackson, Tennessee, Tyler, Texas, Dallas, Texas, Chicago, Illinois, Detroit, Michigan, and St. Louis, Missouri. Dr. Clark died in the last named city in June, 1943.
According to the testimony of respondent she visited her husband for about two weeks while he was stationed in Washington, D. C., and lived with him at Jackson, Tennessee, for a little more than a year, where they had some differences and trouble and they agreed that respondent would go home to Georgia. It appears that thereafter respondent was invited by her husband to accompany him to Texas, but that she did not go with him, nor did she visit him during the six years while he was pastor of two large churches in that state -- one at Tyler and the other at Dallas. However, it further appears that thereafter respondent and her husband lived together in various places, and that he frequently came 'home' to Midville, Georgia, where respondent was living.
The testimony shows that respondent visited her husband about a week while he was pastor of a church in Chicago, Illinois, and that she went to live with him in the year 1934 at Detroit, Michigan; that she also accompanied him to a meeting of church representatives, called the 'General Conference,' at St. Louis, Missouri, during a period of about three weeks while he was running for the office of Bishop in his church; that when the 'General Conference' at St. Louis was over respondent went back to Midville, Georgia, and her husband went to Detroit, Michigan. The testimony shows that thereafter respondent did not live with nor visit her husband at any of his places of residence during the remainder of his life, which covered a period of about eight years.
In the year 1935 Dr. Clark (the deceased) was appointed to the pastorate of Lane Tabernacle in St. Louis, Missouri. This was a large church which had a stone building and an eight room parsonage with modern conveniences for the use of the pastor. In addition he received a salary of $ 3000 per year, to which was added traveling expenses necessary in the performance of his duties as pastor.
It further appears from the testimony that while Dr. Clark served as pastor of a church in Detroit, Michigan, a niece kept house for him, but that she died before he came to St. Louis; that when Dr. Clark took charge of the church in St. Louis a man and wife were engaged to live at the parsonage and they kept house for him. About a year thereafter Dr. Clark went to the State of Georgia and prevailed upon his nephew, Fred L. Beasley, and his nephew's wife, Mary, to come to St. Louis and live at the parsonage of the church where Dr. Clark was pastor and keep house for him; that Beasley and his wife kept house for Dr. Clark during the remaining six years while he was pastor of said church, and continued to do so after he became Presiding Elder.
On June 20, 1943, while Dr. Clark was preaching at the Sunday morning service at Lane Tabernacle in St. Louis, he was stricken and died within a few hours thereafter. Respondent was notified by telegram of the death of her husband and she sent a reply requesting that his body be held for further word from her, but she did not come to the funeral, which took place several days thereafter, nor did she send any further communication in reference to it.
In answer to questions propounded to her at the trial in the Circuit Court, respondent testified that her husband did not mistreat her. Referring to the time when respondent left St. Louis to go back to Georgia, she testified:
Throughout her testimony respondent repeatedly stated that the reason she did not come to St. Louis and did not go to other places to visit her husband was that he did not send for her and did not send her money to meet her expenses for such trips; that whenever he wanted her he always sent requests to her to visit him and sent her money for expenses; that the reason she did not come to St. Louis to attend her husband's funeral was that she was not able to come at that time and that her doctor advised her not to make the trip.
Inasmuch as appellants in this case rely largely upon respondent's own testimony to support appellants' theory of 'Abandonment' by respondent of the deceased, we believe that it will serve to give a clearer understanding of the situation of the parties if we set forth respondent's testimony than if we were to attempt to reduce it to narrative form. Hence we present verbatim such parts of respondent's testimony as we believe to be determinative of the main question at issue, namely, whether or not she 'abandoned' the deceased. Respondent's testimony at the trial in the Circuit Court consisted largely of her answers on cross examination and parts of her deposition previously taken and introduced by appellants.
Respondent's testimony shows the following:
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