In re Kelley's Estate

• Decision Date: 06 November 1923
• Docket Number: No. 17883.,17883.
• Citation: 255 S.W. 1064,213 Mo. App. 492
• Parties: In re KELLEY'S ESTATE. WOERHEIDE v. KELLEY.
• Court: Missouri Court of Appeals

255 S.W. 1064

213 Mo. App. 492

In re KELLEY'S ESTATE. WOERHEIDE v. KELLEY.

No. 17883.

St. Louis Court of Appeals, Missouri.

November 6, 1923.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

In the matter of the estate of Caroline A. Kelley, deceased. Petition by William E. Woerheide, curator of the estate of Rosalie Anspach, against Joseph M. Kelley, administrator of the estate of Caroline A. Kelley, deceased, for whom James P. Newell, administrator de bonis non of the estate of Caroline A. Kelley, deceased, was substituted. From judgment surcharging a settlement made by the administrator, and directing him to turn over certain securities and money to the curator, the administrator appeals. Affirmed.

Randolph Laughlin, of St. Louis, for appellant.

W. W. Henderson, of St. Louis, for respondent.

DAVIS, C.

On appeal here from the circuit court of the city of St. Louis, on appeal there from the probate court. Judgment in the circuit court sustaining a motion of the curator surcharging a settlement ma& by the administrator of Caroline A. Kelley, deceased, former guardian of her sister, Rosalie Anspach, non compos, and directing him to turn over certain securities and money to the subsequent and domiciliary curator, William E. Woerheide.

Upon the death of Caroline A. Kelley, Joseph M. Kelley, her widower, under appointment from the probate court, took charge of her estate. In due course the administrator filed his first inventory, and, under the heading "Property Claimed for Rosalie Anspach" he inventoried 100 shares of the common stock of the National Enameling & Stamping Company, par value of $100 per share. The certificate was issued to Caroline A. Kelley, and was not indorsed. He also inventoried one Liberty bond for $1,000, registered in the name of Caroline A. Kelley, guardian for Rosalie Anspach, and one bond of the Helena Gag & Electric Company for $1,000. Thereafter Curator Woerheide filed a petition in the probate court praying that certain property be turned over to him, and on October 15, 1918, the parties appeared in court, and by consent the probate court ordered the National Enameling & Stamping Company stock, the Liberty bond, and the Helena Gas & Electric Company bond turned over to the curator as the property of the ward, Rosalie Anspach, without prejudice to either of said parties as to the title to the remaining stock and bonds described in the petition of said curator theretofore filed. The receipt given the administrator by Curator Woerheide for the above stock and bonds, omitting caption and signatures, is as follows:

                         "St. Louis, Mo., October 16, 1918
                

"Received of Joseph M. Kelley, administrator of Caroline A. Kelley, the following property of Rosalie Anspach, this day surrendered and turned over by him in obedience to the order of the probate court and entered in the above entitled cause on October 15, 1918, viz.:

                100 shares National Enameling & Stamping
                  Co. common stock of the par value of
                  $100, but of the present market value of
                  about $52 .....................................  $5,200 00
                Dividend declared Aug. 10th, $1,50 per share          150 00
                One $1,000 registered 3½ per cent. Liberty
                  Bond ..........................................   1,000 00
                June interest on same............................      17 50
                One $1,000 Helena Gas & Electric Co. first
                  6 per cent. mortgage bond, including interest
                  due April 1, 1918..............................   1,000 00
                                                                   _________
                    Total  ......................................  $7,367 50
                

"And the said estate of Caroline A Kelley, deceased, and the said Joseph M. Kelley, as administrator thereof, and also in his individual capacity, are now hereby released and discharged of all and all manner of liability on account of said securities and dividends, or any of them, and on account of the possession, custody, and retention thereof.

"It is understood, however, that this receipt is without prejudice to the rights of any parties hereto in any matter connected with any securities not hereinabove listed.

"In witness whereof we have hereunto affixed our signatures the day and year first above written. [Signed] William E. Woerheide, Curator of the Estate of Rosalie Anspach, Non Compos."

Thereafter, on October 13, 1919, the curator filed an amended petition surcharging the settlement filed by the administrator of Caroline A. Kelley, and praying that a correct balance be ascertained, and that the administrator be ordered to turn over and deliver to the curator any securities now held by him as administrator of the estate of Caroline A. Kelley belonging to said Rosalie Anspach.

Upon a trial de novo in the circuit court the court found that Joseph M. Kelley, administrator of Caroline A. Kelley, had in his possession the following securities belonging to the estate of Rosalie Anspach, and which Caroline A. Kelley, as guardian of Rosalie Anspach, non compos, had in her possession at the time of her death, to wit: 50 shares of Westinghouse Electric & Manufacturing Company common stock, and one bond of Distillers' Securities Corporation of the denomination of $1,000, which the administrator, together with $465.55 as dividends on said stock and interest on said bond to December 1, 1920, was ordered to turn over and deliver to curator Woerheide for his ward.

The cause was tried upon the testimony offered and introduced by Curator Woerheide. The testimony tends to show that on March 8, 1916, Caroline A. Kelley, Pennsylvania guardian of Rosalie Anspach, through her husband, Joseph M. Kelley, sold seven Western Maryland bonds for $5,154.14; that on January 17, 1916, and February 24, 1916, there were sold four and eight shares of New England Power Company stock for $136.92 and $482.39, respectively, all the property of Rosalie Anspach, and which was, with Mrs. Kelley's consent, credited to the personal account of Kelley. This was a speculative account covering the year 1916, during which time Kelley was engaged in gambling transactions and margin trades in divers and sundry securities. He also made a few legitimate trades, among others, buying on January 13, 1916, for $2,662.50 cash, 100 shares of the National Enameling & Stamping Company stock. On February 4, 1916, he bought for $748.75 cash a Distillers' bond; on July 13, 1916, 50 shares of Westinghouse stock, paid for out of the mingled fund that he had with A. G. Edwards & Sons. Kelley, in his speculations in the securities, lost the money in the account, including Rosalie Anspach's money and $12,-000 of his own.

At the time of Mrs. Kelley's death, the National Enameling stock, the Liberty bond, and the Helena Gas & Electric bond were in the joint box of Mr. and Mrs. Kelley in the Mississippi Valley Trust Company, in an envelope in her handwriting marked "Rosalie Anspach," and which were afterwards inventoried by Kelley as Rosalie Anspach's property. Kelley first saw the envelope in the fall of 1915. It was the same envelope in which the Western Maryland bonds were sent from Philadelphia. The National Enameling Company stock was purchased for $2,662.50 on January 13, 1916, by Kelley, listed in the name of Caroline A. Kelley, and placed in the safe deposit box, held in their joint and several names and control. Joseph M. Kelley and Caroline A. Kelley were husband and wife. They kept a joint bank account, were fifty-fifty partners, and conducted jointly the speculative account with A. G. Edwards & Sons in the name of Joseph M. Kelley, the account in which the proceeds of the sale of the securities of Rosalie Anspach were deposited, and which proceeds were used in their speculations. Speaking of the National Enameling stock, in one of his examinations Kelley testified:

"The title, you might say, changed back here in December, 1917. She [Rosalie Anspach] was merely getting the income. You must understand we simply gave her income off these securities. In other words, I took all her [Rosalie Anspach's] money, used it as I saw fit, and gave her so much income."

Again:

"We never gave her that stock [National Enameling] until the stock became a 6 per cent. dividend payer."

The first dividend, $200, on this stock was paid by check May 15, 1917, to Caroline A. Kelley, deposited to her credit, and shortly afterwards $75 was sent to Rosalie Anspach's account in Philadelphia. November 15, 1917, a dividend check of National Enameling for $200 to Caroline A. Kelley bore this indorsement:

"Caroline A. Kelley, for deposit only to the account of Caroline A. Kelley, Guardian Rosalie Anspach," etc.

On March 20, 1918, check payable to Caroline A. Kelley, for $150, indorsed and deposited to her credit. On May 31, 1918, check to Caroline A. Kelley for $150, indorsed "Caroline A. Kelley," "Joseph M. Kelley," in his handwriting, "Charles Schlem," deposited July 6, 1918. There was also evidence to show that a dividend of $200 was paid October 11, 1917. Mrs. Kelley died June 27, 1918. Kelley testified:

"In April or May, 1918, two months before Mrs. Kelley died, was the first time we agreed that the National Enameling stock was the property of Rosalie Anspach."

When the stock first began to pay dividends it was worth $27 a share; at the time it was turned over, $52 a share. Relative to the proceeds received from the sale of the Western Maryland bonds and the stock belonging to Rosalie Anspach, aggregating $5,773.45, this money was used by Kelley in his speculations, and his contention is to the effect that they (Mr. and Mrs. Kelley) did not buy or invest the money for the ward, but merely gave her an interest in any securities they had, and she (Rosalie Anspach) got a proportional amount of the profits. They had in their box $12,000 or $13,000 worth of securities. Mrs. Kelley said: "I want to be sure that Rosalie has a good income." Kelley testified the market conditions were so very precarious, and he said: "We can't make any investment;...