In re Estate of Martin

• Decision Date: 10 November 1924
• Parties: In the Matter of the Estate of JOHN MARTIN, deceased, MILTON MARTIN, Appellant, v. LEON J. MARTIN, Executor, et al., Respondents. *
• Court: Kansas Court of Appeals

266 S.W. 750

219 Mo.App. 51

In the Matter of the Estate of JOHN MARTIN, deceased, MILTON MARTIN, Appellant, v. LEON J. MARTIN, Executor, et al., Respondents. *

Court of Appeals of Missouri, Kansas City

November 10, 1924

Appeal from the Circuit Court of Buchanan County.--Hon. L. A Vories, Judge.

AFFIRMED.

Judgment affirmed.

J. V Gaddy and John S. Boyer for appellant.

Thos F. Ryan for respondent.

OPINION

ARNOLD, J.

This is an action under sections 62 to 66 inclusive, Revised Statutes 1919, to discover and recover certain assets of the Estate of John Martin, deceased. The facts in the case are as follows.

John Martin, father of plaintiff and defendants herein, was an aged man, a resident of Buchanan County, Mo. In 1915, he purchased from Bartlett Brothers Land Company of St. Joseph, a note for $ 1,000, and in 1918, he purchased likewise a note for $ 2,000. At the time of purchase each of the said notes had attached to it a separate slip of paper bearing the following endorsement:

"For value received, Bartlett Brothers Land & Loan Company hereby assigns the within note with coupons thereto attached, to John Martin without recourse.

"BARTLETT BROTHERS LAND & LOAN CO.,

"By A. L. BARTLETT, vice president."

After the purchase of the notes, Mr. Martin deposited them in his private box which was kept in the vaults of the Bartlett Brothers Land & Loan Company. He collected the interest on the notes until his death. A long time after the purchase of the notes, towit, on March 23, 1922, the original endorsements were removed from the backs of the notes, and at the solicitation and under the direction of John Martin, new and different endorsements were placed thereon. The second endorsement which was attached to the back of the $ 1,000 note reads:

"St. Joseph, Mo., March 23, 1922.

"For value received Bartlett Brothers Land & Loan Company hereby assigns the within note and coupons hereto attached to John Martin, or Leon J. Martin, or to the survivor, without recourse.

"BARTLETT BROTHERS LAND & LOAN COMPANY,

"By A. L. BARTLETT, vice president."

The new endorsement on the $ 2,000 note was the same as on the $ 1,000 note, except it was assigned to "John Martin, or Mary E. Panigot, or Cecilia Nunenkamp, or the survivor." On the execution of these second endorsements, the notes were replaced by John Martin in his private box, but in separate envelopes, with the proper names of the assignees on the outside thereof.

John Martin died testate on November 5, 1922, and Leon J. Martin, one of the defendants herein qualified as executor of the estate and, as such executor, took possession of his father's private box with its contents, including the two notes in controversy, and which the said executor refused to inventory. He retained the $ 1,000 note which he claimed as his own property, by reason of the endorsement thereon; the $ 2,000 note he delivered to defendants Mary Panigot and Cecilia Nunenkamp who claimed to own same jointly, by reason of the last endorsement thereon.

An inquiry and proceeding was instituted in the probate court against Leon J. Martin, Mary Panigot and Cecilia Nunenkamp, all children of the deceased John Martin, to recover into the estate the proceeds of the two notes above mentioned, upon the allegation that the notes were the property of said estate and under the terms of the will an equal division should be made to each of the children except Mrs. Radke, a daughter, to whom the testator left a bequest of only $ 5. However, after the father's death, the children got together and agreed that Mrs. Radke was to share equally with the other children in the estate.

The proceeding in the probate court sought to have the two notes in controversy inventoried as the property of the estate, but that court found for defendants, holding the said notes were not the property of the estate. The case then was appealed to the circuit court of Buchanan county where it was tried de novo to the court, a jury being waived by agreement of parties. No declarations of law or findings of fact were requested by either party. The finding of the court was in favor of defendants, and judgment was rendered accordingly. Plaintiff appealed.

The cause was tried in the probate court upon affidavits, answers, interrogatories, answers to interrogatories and replications thereto, all of which were duly certified and filed in the circuit court and became a part of the record.

It is insisted by plaintiff that the answers to the interrogatories made a prima-facie case against defendants and that the burden of proof therefore was upon defendants to establish the ownership which they claimed; that defendants not only had the burden to establish this ownership, but that the character of such proof must be clear, full, unequivocal and convincing to the judicial mind. This is a clear statement of the law, but whether or not a prima-facie case was in fact made against defendants is the question now before us. Plaintiff bases his contention in this respect upon the fact that the assignment of the respective notes to defendants constituted gifts inter vivos, and after assuming this position plaintiff bases his contention upon the facts (1) that there is no evidence of delivery; (2) no evidence of acceptance of the gifts by defendants. It is urged that to constitute a valid gift inter vivos, there must be an actual and complete delivery of the thing given in which the donor in his lifetime parts with possession and control over the subject of the gift; and that there must also be an intent to receive and an acceptance of the gift on the part of the donee.

It is also urged that that which was intended as a gift but which is imperfect as such, cannot be treated as an executed trust. All of which is good law and applicable to the facts in this case if (and only if) John Martin intended a gift inter vivos. Defendants insist the proof shows it was not the intention of Martin to execute a gift inter vivos, but that it was his intention to establish estates in entirety in the proceeds of the notes in controversy. We are inclined to accept this theory of the case.

The testimony shows that when John Martin went to A. L. Bartlett to talk to him about a new assignment of the notes, he asked Bartlett to advise him as to how his object could best be obtained. So far as the record discloses Mr. Bartlett was the only witness testifying on this point and was the only person with whom Mr. Martin talked about the matter. Mr. Bartlett's testimony is as follows:

"Q. You say that sometime after the sale of this note to Mr. Martin there was some subsequent transaction in reference to it--please state to the court what that was. A. Mr. Martin brought the note to me one day to ask me to change the endorsement and make it read 'John Martin or Leon Martin or survivor,' which I did. I tore off the original endorsement and put on the new.

"Q. Do you recall, Mr. Bartlett, just what it was Mr. Martin said to you about this note? A. No, he wanted the note fixed.

"Q. Not your conclusion.

"THE COURT: If you can't give the words give the substance.

"THE WITNESS: He wanted the note fixed--. . . He asked me to change the endorsement on the note so as to make it possible for either himself or Mr. Leon Martin to collect either the interest or the principal; the survivor to take it.

"Q. Was he at that time advising with you about how to do that? A. I think he did. I think he asked me, perhaps--I don't know whether it was that day or not, but I think he asked me something about it prior to the time he made the endorsement."

On redirect examination this witness stated:

"Q. Do you recall that there was an envelope prepared which contained these notes after the second endorsement, Mr. Bartlett, and placed in the box? A. We always make an envelope when we sell a note and I am quite sure that was the case.

"Q. Judge Ryan asked you a question as to whether or not these particular notes were not placed in envelopes with certain names on the envelopes--do you know anything about that? A. I am confident that was the case, because it is our custom and I am quite sure it was that way.

"Q. Do you know whether or not Mr. John Martin's name was on that envelope as well as any other name or names that might have been upon it? A. Prior to his death, you mean?

"Q. Yes. A. Yes, sir."

We think this testimony is conclusive to the effect that John Martin desired to, and did, create an estate in entirety in the notes, and that he had no intention of making a gift inter vivos, in the case of either note. Plaintiff insists that in order to create an estate by the entirety, or right of survivorship, there must co-exist four unities: First, unity of interest; second, unity of title; third, unity of time, and fourth, unity of possession. We think all these requirements are met by the facts, as shown by the testimony of A. L. Bartlett, quoted above. Plaintiff's citations do not refute, but strengthen defendants' position in this respect.

The case of Craig v. Bradley, 153 Mo.App. 586, 134 S.W 1081, opinion by ELLISON J., discusses this question and clearly defines the law applicable to the facts in this case. In that case William E. Bradley and ...