Joerden v. Stumpe

• Decision Date: 29 June 1937
• Citation: 106 S.W.2d 543,232 Mo.App. 959
• Parties: AUGUSTA JOERDEN, RESPONDENT, v. CLARENCE STUMPE, EXECUTOR OF THE ESTATE OF JOSEPH G. JOERDEN, DECEASED, APPELLANT
• Court: Missouri Court of Appeals

106 S.W.2d 543

232 Mo.App. 959

AUGUSTA JOERDEN, RESPONDENT, v. CLARENCE STUMPE, EXECUTOR OF THE ESTATE OF JOSEPH G. JOERDEN, DECEASED, APPELLANT

Court of Appeals of Missouri, St. Louis

June 29, 1937

Appeal from the Circuit Court of Franklin County.--Hon. R. A. Breur Judge.

AFFIRMED.

Judgment affirmed.

Leo A Politte for appellant.

(1) The law is well settled in this State by statute that any action for taking, detaining or injuring any goods or chattels including actions for the recovering of specific personal property, or for any other injury to the person or rights of another not arising on contract, must be brought within five years from the date of such action accrued. Sec. 862, R. S. Mo. 1929. Where, on the face of the pleading, it appears that the demand is barred the point may be raised by demurrer. American Radiator Co. v. Connor Plumbing & Heating Co., 277 Mo. 548, 211 S.W. 56; Herweck v. Rhodes, 327 Mo. 29, 34 S.W.2d 32. (2) A married woman shall be deemed femme sole so far as to enable her to transact business, make contracts and sue and be sued. Sec. 2998, R. S. Mo. 1929. This is true notwithstanding Sec. 3003, providing that property of the wife shall remain her separate property, unless full authority is given to her husband in writing to sell and incumber it for his own uses and benefit. Parker v. Staley, 21 S.W.2d 200. The law is well settled in this State that where a savings account was placed in the name of donor or donee jointly it was a complete gift of joint interest, even though donor retained pass book. Commonwealth Trust Co. v. Du Montimer, 193 Mo.App. 290, 183 S.W. 1187.

Randolph H. Schaper and Jesse H. Schaper for respondent.

(1) There was substantial evidence introduced at the trial to support the demand of plaintiff and, therefore, the trial court did not err in rendering its judgment for plaintiff and against defendant, for the following reasons: (1) The moneys received by deceased from plaintiff are to be treated as trust funds in his hands for her benefit and plaintiff could treat her husband either as trustee or simply as a debtor. By electing to treat him as a debtor, the indebtedness, although growing out of this trust relationship, became a money demand against his estate over which the probate court has jurisdiction. Winn v. Riley, 151 Mo. 61; Broughton v. Brand, 94 Mo. 169. (2) The Statute of Limitations does not apply in this case, inasmuch as plaintiff was the wife of deceased and is within the exceptions granted to married women, and also because the relationship of deceased to plaintiff was that of trustee. Sec. 868, R. S. Mo. 1929; Winn v. Riley, 151 Mo. 61. (3) The moneys received by plaintiff from her relatives remained the property of the plaintiff, notwithstanding the fact that deceased had the possession and use of the same and carried the moneys in his own name. Sec. 3003, R. S. Mo. 1929; Winn v. Riley, 151 Mo. 61; Broughton v. Brand, 94 Mo. 169. (4) Plaintiff did not give to deceased her assent in writing to take possession and use her moneys and therefore the title to the same remained in plaintiff. Sec. 3003, R. S. Mo. 1929; Broughton v. Brand, 94 Mo. 169; Winn v. Riley, 151 Mo. 61. (2) Under the pleadings and the evidence in this case, plaintiff was entitled to recover the full amount of her demand and, therefore, the trial court did not err in rendering its judgment for plaintiff and against defendant, for the following reasons: (See Points and Authorities under 1.) (3) There were no facts or circumstances introduced in evidence tending to prove a gift from the plaintiff to the deceased and, therefore that issue is not before the court, for the following reasons: (1) There was not any evidence that plaintiff delivered the moneys to deceased but the evidence shows that the deceased took possession of same from the plaintiff by first placing the same in a joint account and later in an account in deceased's name only. (2) All inferences that can be drawn from the evidence show that plaintiff did not give these moneys to the deceased but had to stand by and let deceased take possession of same in order to live with him peacefully.

McCULLEN, J. Hostetter, P. J., concurs; Becker, J., absent.

OPINION

McCULLEN, J.--

Appellant, defendant below, has appealed from a judgment of the Circuit Court of Franklin County allowing a demand in favor of respondent, plaintiff below, against the estate of Joseph G. Joerden, deceased. The cause was tried by said circuit court on appeal from the probate court of said county, a jury having been waived. The demand was for moneys received by said Joseph G. Joerden from Augusta Joerden, plaintiff herein, between the years 1910 and 1924 during their marriage. The sum demanded was $ 1352.22 as the separate estate and property of plaintiff which had been reduced to the possession and use of Joseph G. Joerden during said marriage without the authority and consent in writing of plaintiff. The defendant, as executor of the estate of Joseph G. Joerden, filed an answer denying each and every allegation contained in plaintiff's demand, and for further answer alleged that each and all of the items in plaintiff's demand were fully barred by the Statute of Limitations.

Defendant's theory of the case is that the Statute of Limitations is a bar to plaintiff's recovery, and further that the moneys in question were a gift from plaintiff to her deceased husband.

Plaintiff introduced evidence to the effect that the items of money claimed by plaintiff had been given to her on the dates and under the circumstances stated in her demand, as follows: Between the years 1910 and 1912 there was given to plaintiff by her mother, Maria Maushund, in the distribution of the personal estate of Maria Maushund during her lifetime, the sum of $ 400. In the year 1924 plaintiff received from her sister, Mrs. Julia Klinge, the sum of $ 250, being the amount charged against the real estate of Maria Maushund by her last will and testament and devised to said Julia Klinge in favor of plaintiff. Between April 4, 1917, and March 27, 1918, plaintiff received from E. F. Rippstein, executor of the estate of Edward G. Maushund, deceased brother of plaintiff, the sum of $ 702.22, which was paid to plaintiff as one of the residuary legatees of said deceased brother.

The evidence discloses that plaintiff and Joseph G. Joerden were married in 1903 and lived together as husband and wife in the city of St. Louis until March, 1931. Mr. Joerden at that time left plaintiff in St. Louis and went to Washington, Franklin County, Missouri, and thereafter lived at his mother's home in that county until the time of his death. It was admitted at the trial, by agreement between counsel for the parties, that the last will and testament of Joseph G. Joerden was admitted to probate in the probate court of Franklin County, Missouri, and that Augusta Joerden, the widow, plaintiff herein, was not named in the will; but that plaintiff has received the sum of $ 400 as personal dower and allowance in lieu of provisions out of Joerden's estate.

Plaintiff's evidence further shows that Joseph G. Joerden did not have any money at the time of his marriage to plaintiff and did not accumulate any money of his own during the marriage. In the summer months during the period of their marriage, Joerden was engaged in the painting business in the city of St. Louis and plaintiff, as his wife, kept boarders and roomers and also did washing to contribute to their support. Mr. Joerden did all the banking business, the evidence showing that plaintiff never went to the bank and did not at any time withdraw any money.

It appears that the moneys received by plaintiff from her relatives were kept, after 1923, in a joint account of Joseph G. Joerden and Augusta Joerden in the South Side National Bank in St. Louis. In February, 1929, Joseph G. Joerden withdrew the money in the joint bank account and made a time deposit in his own name in the Bank of Washington, Washington, Missouri, in the sum of $ 1500. That deposit was made on February 5, 1929. On the same date he made an additional deposit in the Bank of Washington in the sum of $ 500 in his own name. The last mentioned deposit was withdrawn February 18, 1929. The $ 1500 deposit of February 5, 1929, was withdrawn from the Bank of Washington about August 10, 1932, and at the time of his death Joseph G. Joerden had in a savings account in his own name in the Boatman's National Bank in St. Louis a total sum of $ 2240. On August 8, 1932, a time certificate for $ 1689.05, issued by the Bank of Washington to Joseph G. Joerden, which was a renewal of the first certificate issued in February, 1929, and included interest thereon, was cashed at the Boatman's National Bank in St. Louis and on that date a savings account was opened in that bank in the name of Joseph G. Joerden. The savings account remained in that bank until Joerden's death and amounted to $ 2240 as heretofore stated. This was the only bank account or deposit found by the defendant executor.

The evidence shows that although plaintiff and her deceased husband had some arguments over money matters, they were friendly to each other. Plaintiff's principal witness was her sister, Mrs. Julia Klinge, who lived with plaintiff and plaintiff's husband in their home from 1923 to 1931, when the Joerdens separated. They did not live together as husband and wife after that separation.

The only testimony in the case with respect to the transactions between plaintiff and Mr. Joerden was that given by Mrs Klinge, plaintiff's sister. She testified that on one occasion, when speaking of plaintiff and himself with respect to money transactions, Joerden told her: "Our money is in the South Side National Bank in St. Louis. What is...