In re Weingart's Estate

• Decision Date: 04 May 1943
• Docket Number: No. 26229.,26229.
• Citation: 170 S.W.2d 972
• Parties: In re WEINGART'S ESTATE. WEINGART v. STETZEL.
• Court: Missouri Court of Appeals

170 S.W.2d 972

In re WEINGART'S ESTATE WEINGART v. STETZEL.

No. 26229.

St. Louis Court of Appeals. Missouri.

May 4, 1943.

Rehearing Denied May 21, 1943.

Appeal from Circuit Court, City of St. Louis; Charles B. Williams, Judge.

"Not to be reported in State Reports."

Proceeding by Julia Weingart, one of the legatees under the will of William Weingart, deceased, against Elmer Stetzel, executor under the will of William Weingart, to obtain possession of deed of trust allegedly in executor's possession. From an adverse judgment rendered on appeal to the Circuit Court, defendant appeals.

Affirmed.

Douglas H. Jones and Barak T. Mattingly, both of St. Louis, for appellant.

Oliver J. Miller, George S. Roudebush, and Lashly, Lashly, Miller & Clifford, all of St. Louis, for respondent.

ANDERSON, Judge.

Julia Weingart, a legatee under the will of her brother, William Weingart, instituted this proceeding by filing in the probate court of the city of St. Louis an affidavit charging that she had good cause to believe and did believe that Elmer Stetzel, executor under the will of William Weingart, had concealed or otherwise wrongfully withheld a certain deed of trust on property at 1210 Tower Grove avenue, St. Louis, Missouri, in the principal amount of $1,500, due April 27, 1938, which deed of trust was in his possession or under his control. In due time a citation was issued and served, interrogatories filed, and answer thereto made.

In the answer to the interrogatories, defendant denied possession of said deed of trust, the note which it secured, and the proceeds thereof.

After proceedings in the probate court, the case was appealed to the circuit court, where it was tried to a jury, who returned a verdict in favor of the claimant and against the defendant, and assessed the claimant's damages in the sum of $1,500, with interest at 6% per annum from September 16, 1936, to the date of judgment. Thereupon the court, on October 13, 1941, entered a judgment that the estate of William Weingart, deceased, have and recover of Elmer Stetzel the sum of $1,953.50, together with the costs of the proceedings.

Interrogatories 1, 2, 3, and 4, called upon defendant to disclose whether he ever had had, or at the date of William Weingart's death had, in his possession, custody, or control, either a note in the principal amount of $1,500 secured by a deed of trust on property at 1210 Tower Grove avenue, St. Louis, Mo., belonging to William Weingart, or the proceeds thereof, and Interrogatories 5 and 6 inquired whether defendant ever had had or at the time of William Weingart's death had in his possession or under his control said deed of trust.

In his answer to these interrogatories, defendant denied having in his possession or under his control at the time of William Weingart's death, or at any time, a note, the proceeds thereof, or a deed of trust belonging to William Weingart.

The evidence disclosed that defendant was engaged in the real estate business, and for a number of years had received money for investment in deeds of trust from the Weingart family, which consisted of the father, John; the mother, Mary; and three children, Julia, claimant herein; William, the deceased; and Tom. Tom apparently did not engage in the practice of investing money with defendant.

Julia acted as agent for the other members of the family in the making of these investments. According to her evidence, it was the defendant's practice to give her a card for each member of the family who invested with him, showing the investments made by each. The cards were ordinary index cards, on which were typewritten the name of the person investing, at the top of the card, followed by a list of his or her deposits and investments. Defendant made out the cards, added to or changed them as new deposits or investments were made, and personally delivered them to claimant. Defendant denied he ever issued such cards.

The investments, such as deeds of trust and notes, were sometimes kept by claimant in her safe deposit box, but usually they remained with the defendant.

Claimant further testified that prior to William Weingart's death her father's card, issued by defendant, had listed on it as an investment belonging to her father a deed of trust for $1,500 on property located at 1210 Tower Grove avenue, St. Louis, Missouri. She testified that she went to defendant's office and told him to transfer that deed from her father's card to William's card, as William had paid three years taxes on his father's home, plus certain special taxes, making a total of $1,500. Defendant replied "O.K." and filled out a new card for William, on which he listed the $1,500 deed of trust on 1210 Tower Grove avenue, along with the other items on William's old card. He gave this new card to claimant, and destroyed both her father's card and William's old card. She kept William's card in her possession, and had it at the time of his death. At the time of his death the $1,500 loan had not been paid either to her or to her brother.

She stated that after her brother William's death she and her brother Tom went to her bank and checked over the papers in her safe deposit box. They found that the deed of trust on 1210 Tower Grove avenue was not among the papers. At the time she had with her the loan card, on which were listed: The Tower Grove deed of trust; a $3,000 deed of trust on 1118 South Boyle; a $700 deed of trust for property on Hughes place; and a $350 deed of trust for property on Darstdale avenue. She and her brother Tom then went to defendant's office, and later the three of them went to the bank, where she handed the safe deposit box to defendant. He took from the box William Weingart's will, read it, and placed it back in the box. Claimant then asked him about the Tower Grove deed of trust, and defendant replied that it was at his office.

The next day defendant called at claimant's house, stating he would have to have the will. Claimant went with him to the bank, where he secured the will and the $350 note. He tore up the note, and when claimant remonstrated, stating that it was a part of her brother's estate, he replied that he knew it but he was going to put up the cash in the inventory.

About two weeks later the defendant came to claimant's home. At that time claimant asked him about the Tower Grove avenue deed of trust and he replied: "I haven't come across it yet. If I don't come across it, don't worry. I will give you three $500 each." Thereafter claimant and her brother Tom went to defendant's office, and had a further talk with defendant concerning the deed of trust in question. Claimant had with her at the time the card showing the deed of trust listed among William's investments. Defendant took this card from her and destroyed it, giving her a new card on which was omitted the Tower Grove deed of trust, but on which appeared in place thereof the following: "$1,500.00 Open. Wm. & John. Adj., to be checked." There also was listed: "$3,000.00 1118 S. Boyle Ave., May 22, 1937. Int. Due May & Nov. 22. $700.00 1342-46 Hughes Pl., Jan. 2, 1938. Int. July & Jan. 2. $350.00 Open."

Thereafter she again called at defendant's office, and defendant told her he did not want to see her anymore. The next morning she received a letter from him, stating that if she wanted any more information she should see his lawyer. The letter also stated: "This deed of trust was never a part of William Weingart's property. It was held by you at one time to secure the $1500 belonging to Mary Weingart, which $1,500 was paid in full to said Mary Weingart. The property that originally secured the $1500 was defaulted by the owner and we salvaged the $1,500 by making a sale of the property. The interest payments of $45.00 each six months was paid to Mary Weingart. Yours very truly, Elmer Stetzel."

When defendant filed the inventory in the estate, he listed among the assets cash in the sum of $350, but failed to list the Tower Grove deed of trust. Thereafter the affidavit for discovery of assets was filed in the probate court, and this proceeding initiated.

The defendant testified that he inventoried all of the securities given to him. He stated that when he later was asked about the Tower Grove deed of trust, he told them that he would look it up; that after checking it, he found it was paid off and not due to the estate of William Weingart. He stated that he had set aside this deed of trust to the Weingart family to secure them while foreclosing for them another $1,500 deed of trust which they owned on property on Railroad avenue; that after the Railroad avenue deed of trust was foreclosed, he paid to them the $1,500. Defendant then introduced two cancelled checks payable to Mary Weingart, one for $300, dated April 7, 1936, and the other for $1,200, dated September 25, 1936, and testified that they represented the amounts realized from said sale. Defendant also introduced a receipt signed by Mary Weingart, dated September 25, 1936, acknowledging receipt of $1,200 from Edw. F. Wrisberg Real Estate Co. in full for all money invested with it through Julia Weingart, except for $350. Claimant admitted receiving these amounts for her mother, but stated that she and her mother had money invested with defendant, and that these checks were given in payment of loans owned by her and her mother, and that the checks did not represent any transactions with respect to her brother William's estate.

Defendant's evidence further shows that the Tower Grove deed of trust was released of record on June 1, 1936. Prior to that time claimant was the record owner of the property as straw party for defendant, and had executed a lost note affidavit in connection with the release. Defendant further testified: "The deed of trust that was put on after that was a deed of trust for $2,000, which was the amount over the first deed of trust, which included the second deed of trust that we had on the property, but that...