In re Van Fossen

• Decision Date: 11 February 1929
• Docket Number: No. 16448.,16448.
• Parties: In re VAN FOSSEN.
• Court: Missouri Court of Appeals

13 S.W.2d 1076

In re VAN FOSSEN.

No. 16448.

Kansas City Court of Appeals. Missouri.

February 11, 1929.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

"Not to be officially published."

In the matter of the citation issued against Servilla Van Fossen for discovery of assets of the estate of Andrew M. Van Fossen, deceased. From the judgment rendered, defendant appeals. Affirmed.

DeArmond & Maxey, of Butler, for appellant.

T. W. Silvers and J. A. Silvers, both of Butler, for respondent.

ARNOLD, J.

This action was instituted in the probate court of Bates county, Mo., under the provisions of section 62, R. S. 1919, and seeks to discover assets of the estate of Andrew M. Van Fossen, deceased.

The facts of record are that defendant and Andrew M. Van Fossen were married about December 15, 1923, and that the husband died intestate in Bates county on May 16, 1926, leaving an estate in land and personal property of an approximate value of $9,000. Decedent had resided on the farm of which he died seized for a period of more than ten years immediately preceding, and at the time of his death, and had been engaged principally in raising poultry. It appears of record that at the time of his marriage to defendant the decedent owned a large flock of Leghorn chickens and all the chattels here in controversy, except three head of Jersey cattle which were purchased after said marriage. Defendant was appointed administratrix of the estate and qualified as such. She made an inventory and appraisement of the estate, which was filed in the probate court and is set out in the record. Defendant was the second wife of decedent, and there were surviving him adult children by a former marriage. One of these children instituted this action by filing an affidavit to require the administratrix to inventory a number of articles enumerated therein as follows:

"63 qts of fruit 1 horse 1 shoulder and 1 ham 6 gal. of lard about 500 chickens 2 Jersey heifers 1 incubator 2 brooder stoves 1 Jersey bull Some gasoline and coal oil 1 share of stock in Quinnsberry Feed Co. 1 deposit box and its contents (which should include deeds, abstracts and other valuable papers) An account due by the administratrix to the estate for money borrowed by said administratrix from the deceased in his lifetime, and on or about the _____ day of July, 1925, in the sum of $200.00.

"An account due by the administratrix to the estate for money borrowed from the deceased in his lifetime, and on about the _____ day of Feb. 1926, in the sum of $500.00."

A citation was sought to require defendant to appear before the court and answer the allegations contained in the affidavit, and to make such further answer as the law provides. The citation was accordingly issued. Thereafter written interrogatories were duly filed on behalf of plaintiff and duly answered by defendant. These answers will be referred to hereinafter as deemed necessary in this opinion.

Upon the issues thus made, the cause was duly tried and judgment rendered in the probate court, and by appeal was taken to the circuit court of said county and there tried to a jury, where the following verdict was returned:

"We, the jury, find that the defendant failed to inventory the following property belonging to the estate of deceased at the time of his death, to-wit:

"Item 1: 1 incubator value $20.00

"Item 2: 2 brooder stoves, value $15.00

"Item 3: 1 mutual telephone share value $20.00

"Item 4: 1 horse value $35.00

"Item 5: 3 Jersey cattle value $100.00

"Item 6: The poultry on farm value $200.00

"Item 7: The amount of money value $500.00 and that the aggregate value of the property not inventoried is, or was at the time of the death of deceased, $890.00."

Judgment was entered in accordance with this verdict. A motion for a new trial was overruled, and defendant has appealed.

In the inventory filed in the probate court and introduced in evidence at the trial in the circuit court, the real estate was appraised at $7,200, and the personal property at $1,702.35, making the total appraised value of the estate $8,902.35. This controversy is based upon the failure of the administratrix to inventory the items enumerated in plaintiff's affidavit as properly belonging to the estate. The administratrix filed a timely petition for widow's allowance, in lieu of provisions for herself, for twelve months in the sum of $250 and personal property not to exceed $400, as follows:

                1 roan cow................................. $ 45 00
                1 two-year old heifer white face...........   45 00
                18 pigs white..............................   81 00
                200 bu. corn at .65........................  130 00
                Cash .......................................  99 00
                                                            ________
                

This claim was allowed by the court.

The first charge of error here presented is that the court erred in giving a peremptory instruction to the jury to find for the plaintiff as to the items, 1 incubator, 2 brooder stoves, and 1 Mutual Telephone share, in the face of the sworn statement in defendant's answer to interrogatory No. 2, wherein she stated there was only one incubator and that it was purchased by defendant at the sale of the assets of the estate, for the sum of $10, which sum was paid into the account of the estate; and for the further reason there was no evidence contradictory thereof; and also for the reason that, in defendant's answer to interrogatory No. 3, she replied that the two brooder stoves were sold for $5 for one and $6 for the other, and the proceeds thereof credited to the estate, and this was not contradicted; and because, in defendant's answer to interrogatory No. 7, she stated there was one Mutual Telephone share of the par value of $20, but which was unsalable and of no value, and there was no evidence contradicting this estimate. It is noted the record discloses that in fact these items were not inventoried. The law applicable to this situation is found in Session Laws of 1921, p. 120, § 57, relating to inventory and appraisement. This section repeats, in part, section 57, R. S. 1919, and requires of an administrator that "He shall make an inventory and appraisement, in one written instrument, of all the real and personal estate of the deceased. * * *" In view of the admission of defendant that the items just mentioned were not inventoried, the action of the court in directing a peremptory verdict for plaintiff cannot be regarded as error under this statute, and we so hold. In Hiler v. Cox, 210 Mo. 696, 109 S. W. 679, it is said that an inventory is secondary evidence of title; hence the inclusion in the inventory of all items, both real and personal, belonging to the estate, is necessary.

Appellant insists the court erred in...