In re Estate of Buck

• Decision Date: 06 April 1920
• Parties: IN RE ESTATE OF RALPH S. BUCK, deceased, ST LOUIS UNION TRUST COMPANY, Executor, Appellant, v. MARIE V. BUCK, Administratrix of the Estate of RALPH B. BUCK, Respondent
• Court: Missouri Court of Appeals

220 S.W. 716

204 Mo.App. 1

IN RE ESTATE OF RALPH S. BUCK, deceased, ST LOUIS UNION TRUST COMPANY, Executor, Appellant, v. MARIE V. BUCK, Administratrix of the Estate of RALPH B. BUCK, Respondent

Court of Appeals of Missouri, St. Louis

April 6, 1920

Appeal from the Circuit Court of the City of St. Louis.--Hon. Wilson A. Taylor, Judge.

AFFIRMED.

Judgment affirmed.

Charles M. Polk, for appellant.

(1) As Ralph B. Buck did not reside in Missouri at the time of his disappearance, and there is no showing that he ever was a resident of Missouri, the statutory presumption of death does not arise, the presumption, if any, being under the common law. R. S. 1909, secs. 271, 6340; Carter v. Metropolitan Life, 155 Mo.App. 368, 374; Bradley v. Modern Woodmen, 146 Mo.App. 428, 440. (2) The absence of Ralph B. Buck was voluntary; it is fully explained by his dislike of his father, his refusal to work for his father, and his announced intention of running away; he has not been shown to have been in any risk of life; therefore, the presumption of his death does not arise. Dickens v. Miller, 12 Mo.App. 408; Beegler v. American Legion, 57 Mo.App 419, 423; Bradley v. Modern Woodmen, 146 Mo.App 428, 442. (3) Unless Ralph B. Buck survived the testator his administratrix could not have become entitled to the legacy to him. The burden of proving that survivorship, upon which her right to the legacy depends, is upon her, for it is a fact which she must establish affirmatively, or her title will fail. In re Phene's Trust, L. R. 5 Ch. 139; In re Aldersey, 2 Ch. 181; Bradley v. Modern Woodmen, 146 Mo.App. 428, 443; Hancock v. Am. Life Ins. Co., 62 Mo. 26; Winter v. K. of P., 96 Mo.App. 1 12.

W. B. & Ford W. Thompson for respondent.

(1) When a person is known to be alive at a certain time there is a presumption of the continuance of his life, and whoever finds it important to establish death at any particular period must overcome the presumption by evidence tending to show at what period he died. Hancock, Admr., v. American Life Ins. Co., 62 Mo. 26, 34; Winter v. Supreme Lodge Knights of Pythias, 101 Mo.App. 550, 551; Carpenter v. Supreme Council Legion of Honor, 79 Mo.App. 597; Springmeyer v. Sovereign Camp Woodmen of the World, 144 Mo.App. 483, 487; Bradley v. Modern Woodmen of America, 146 Mo.App. 428, 444; Walsh, Admr., v. Metropolitan Life Ins. Co., 162 Mo.App. 546, 553, and cases cited therein. (2) The evidence conclusively shows that Ralph S. Buck, deceased, the testator, died in 1910; that prior to his death his nephew, who is the legatee under his will, disappeared and has never been heard from since the 20th day of August, 1909. The executor of the will of Ralph S. Buck claims that the legacy lapsed for the reason that there is no evidence that the nephew outlived his uncle. There is no evidence in the record that the nephew at any time had been brought into contact with any sudden or serious danger, or any risk of life or limb, and therefore no evidence tending to show that he died before his uncle. He disappeared August 20, 1909; his uncle died November 11, 1910. See cases cited under Point 1, supra. The most recent case upon this subject, and one which analyzes all of the prior decisions of this State, is that of Walsh, Administrator, against the Metropolitan Life Insurance Company, 162 Mo.App. 546, 553. (3) The judgment of the probate court relative to the issuance of letters of administration cannot be collaterally attacked. "It is now well-established law in this jurisdiction that the orders and judgments of our probate courts, made in the exercise of their statutory powers over subjects conferred upon them by law, are entitled to the same favorable presumptions arising from either the affirmative statements, or the silence of their records, as are accorded in similar cases to the circuit courts." Johnson v. Beazley, 65 Mo. 250; Henry v. McKerlie, 78 Mo. 429; Camden v. Plain, 91 Mo. 117; Rottman v. Schmucker, 94 Mo. 144; Price v. Springfield R. E. Assn., 101 Mo. 107; Williams v. Mitchell, 112 Mo. 308, 309; Macey v. Starke, 116 Mo. 494; McKenzie v. Donnell, 151 Mo. 450; Cox v. Boyce, 152 Mo. 586; Covington v. Chamblin, 156 Mo. 587; Starke v. Kirchgraber, 186 Mo. 646; Robin v. Boulware, 190 Mo. 51; Desloge v. Tucker, 196 Mo. 601; Ansell v. Bridge Co., 223 Mo. 227; Spicer v. Spicer, 249 Mo. 458-9; Norton v. Reid, 253 Mo. 251; Wilson v. Wilson, 255 Mo. 536, 537; Bingham v. Kollman, 256 Mo. 589; Harter v. Betty, 266 Mo. 296; Summer v. Cordell, 187 S.W. 7, 8; Fitzgerald v. De Soto Special Road District, 195 S.W. 696; Thompson v. Pinnell, 199 S.W. 1013; Nodaway County v. Williams, 199 S.W. 226; All of these cases are cited in the case of Oldeker v. Spiking, 210 S.W. 62.

BIGGS, C. Reynolds, P. J., Allen and Becker, JJ., concur.

OPINION

BIGGS, C.--

This cause originated in the probate court of the City of St. Louis and arises out of an application of Marie V. Buck, Administratrix of Ralph B. Buck, addressed to that court asking that the St. Louis Union Trust Company, Executor of Ralph S. Buck, be ordered to distribute to her as such administratrix a certain legacy bequeathed to Ralph B. Buck by the Will of Ralph S. Buck as follows:

"I give and bequeath to my nephew and namesake Ralph B. Buck the sum of two thousand dollars, which I desire my executors shall pay over to the St. Louis Union Trust Company to be invested, managed and controlled by said company during the minority of my said nephew, and during his said minority the net income of profits arising from said principal sum of two thousand dollars shall be added to the principal, and the whole amount of principal and accumulated income shall be paid over to my said nephew by said Trust Company when he reaches the age of twenty-one years, to be his absolutely."

The probate court and, on appeal, the circuit court (a jury being waived) sustained the application and ordered the Trust Company as executor aforesaid, to pay the legacy to Marie V. Buck as such administratrix. From this order and judgment the Trust Company as such executor has appealed here, contending that the evidence is insufficient to warrant the trial court in finding (1) that Ralph B. Buck is dead, and (2) that if dead, that he died subsequently to the date of the death of his uncle Ralph S. Buck, for unless Ralph B. Buck survived his uncle the legacy lapsed, and the administratrix of his estate could not lay claim to same.

Ralph S. Buck, the uncle, died November 11, 1910. Ralph B. Buck, the nephew, was born November 14, 1892, and disappeared August 20, 1909 when about seventeen years old, and has never been heard from since.

After waiting a period of more than seven years, the boy's mother, Marie V. Buck, applied to the probate court and was granted letters of administration on his estate. Appellant admits that Marie V. Buck is the duly appointed, qualified and acting administratrix of the estate of Ralph B. Buck.

The only testimony submitted by either party was that of Marie V. Buck, the mother, and that is as follows:

"I am Marie V. Buck, the widow of Stephen B. Buck and the mother of Ralph B. Buck. I was married to Stephen B. Buck, February 17, 1892, at Wheating, Illinois. My son, Ralph B. Buck, was born November 14, 1892. I was living in Denver, Colorado, at the time my son disappeared. He disappeared August 20, 1909. He went to his work in the morning, and I never saw him afterwards. He was then sixteen and a half years old, and was working as a bell boy in a boarding house, getting Twenty ($ 20) Dollars a month. He had only worked there a couple of weeks. Before that he had worked for a paper concern of the name of Heckel's Paper Company. He had only worked all together seven or eight weeks. He had been at school before that, and he had been with me and my husband until that time. He had always wanted to run away. He had always talked about--of course, his father wanted to control him and he was uncontrollable. I think perhaps he wanted to go to sea; he used to read a book "Newdy Newman, the Boy that Went to Sea," and used to read that book continually over and over, and I think perhaps he wanted to do something like that. Perhaps the book encouraged him in some way.

"Once he started to go away with a boy by the name of Charles McSwain who worked down on the ranch for us. He only got a couple of miles and then came back. We didn't know anything about it at the time, but Ralph told me afterwards.

"Once he ran away and stayed over night because he swore at his father, and his father whipped him with a buggy whip, and he stayed away that night and came back the next morning; that was out on the ranch; he didn't go to anyone's house he just went down to what we call the irrigation ditch, and he came to the kitchen door and knocked and asked where father was, and I told him I had fixed it up with his father and that his father wouldn't punish him, and he should come in; and his father didn't punish him.

"He had called his father a very severe name, and his father had whipped him with a buggy whip, and I took the buggy whip away from his father. This was about a year or nine months before Ralph disappeared. After that Ralph did not want to go to the military school; didn't want to go to any school, and his father was determined; and of course I tried to take Ralph's part. I shouldn't have done it, but I did.

"Just before Ralph disappeared the last time, his father told him he was going to Kansas City and go in business, and if he wouldn't go to school he would put him in the factory; he expected to go in the stove business, something of that kind and he would put him through right from the floor on up, and he would have to do that or do something; that he had his mind made up. And he told me he...