Keele v. Keele

• Citation: 94 S.W. 775,118 Mo.App. 262
• Parties: NANCY M. KEELE, Appellant, v. ISSAC T. KEELE, Respondent
• Decision Date: 24 April 1906
• Court: Court of Appeal of Missouri (US)

94 S.W. 775

118 Mo.App. 262

NANCY M. KEELE, Appellant, v. ISSAC T. KEELE, Respondent

Court of Appeals of Missouri, St. Louis

April 24, 1906

[Copyrighted Material Omitted]

Appeal from Montgomery Circuit Court.--Hon. John M. Barker, Special Judge.

AFFIRMED AND REMANDED.

STATEMENT.--On December 24, 1882, John T. Keele died intestate in Montgomery county, Missouri, leaving surviving him his mother, Nancy M Keele, who is the present appellant, his brother, Isaac T Keele, the respondent, other brothers and some sisters. The deceased possessed considerable land and personal property. Letters of administration were not granted on his estate for aught that is shown, until the spring of 1894, when S. T Weeks was appointed administrator. At the July term of the probate court of said county the following instrument was presented for allowance against the estate:

"I promise to pay to my dear mother Nancy M. Keele, the just and full sum of one thousand dollars for value received without defalcation or discount to bear interest from date at the rate of six per cent per annum. This note is executed for and in consideration of kind and motherly care and treatment during my long and protracted sickness. The above note is to be paid out of the proceeds of my property real and personal after my death.

"This 4th day of October, 1882.

"JOHN KEELE.

"Witnesses: J. P. Bailey,

"Rufus W. Hunley."

The judge of the probate court was disqualified to sit in the case and certified the proceeding to the circuit court of Montgomery county. When the demand came on for hearing in the latter court, Isaac T. Keele appeared in person and by his attorney and asked leave to contest the allowance in behalf of himself as brother and heir of the deceased. The attorney for Nancy Keele, the claimant, objected to Isaac Keele appearing as a contestant at the hearing, on the ground that he was not a party to the action and that the proper party to resist the demand was S. T. Weeks, administrator of the estate. The court refused to permit respondent to defend. The administrator of the estate stated to the circuit court that he had investigated the claim and his wish was that it be allowed. The court allowed the demand with interest on the principal from October 3, 1882, to November 25, 1904--a total allowance of $ 2,328. The proceeding was certified back to the probate court where the allowance was spread on the record and classified. After this was done respondent in February, 1905, and within four months after the demand was allowed, appeared in the probate court and filed a motion to set aside and vacate the allowance against the estate of his brother, setting out the facts we have recited and alleging a conspiracy between appellant, Nancy Keele, mother of said Isaac, and S. T. Weeks, administrator of the estate, to prevent Mrs. Keele's claim from being contested and have it allowed. The motion further alleged that the supposed note was barred by the Statute of Limitations, if in fact it was a note, but that it was executed by the deceased as his will. The motion further alleged that it would be unjust to permit the demand to stand against the estate on account of laches of appellant, and because she had improperly converted to her own use assets of her deceased son much more than the value of the demand. The attorney who had represented respondent was elected judge of the probate court before this motion to vacate the allowance was filed and was disqualified to sit in the proceeding; wherefore it was certified from the probate court to the circuit court. The judge of the latter court had been connected with the controversy and was likewise disqualified; so a special judge was chosen to sit in the cause. The motion to vacate was heard May 12, 1905. In behalf of the mover, Isaac T. Keele, Hon. James F. Ball, now judge of the Montgomery Probate Court, testified as follows:

"I am judge of the probate court of Montgomery county. I was employed by Isaac Keele to represent him in the estate of his brother John Keele, deceased; Isaac is a son of Nancy M. Keele, and John was also her son; Nancy Keele's husband was Richard Keele; he died about a year and a half ago; John Keele died December 24, 1882. I was present when this case was presented to Judge Johnson, as circuit judge, who was sitting in the case as probate court judge. I offered in behalf of Isaac Keele to enter his appearance and test the allowance of this note. Mr. Weeks, the administrator, told me he would not permit me to appear as attorney for him representing the interest of the John Keele estate, because he wanted the claim allowed; Mr. Cook and Mr. Hughes represented Mrs. Keele. I did not represent Mr. Weeks. We came into court in front of this bar; I asked the court to permit Isaac Keele to be heard as defendant. The attorneys for Mrs. Keele objected. The court ruled we were not entitled to be in court in that proceeding; Sam Weeks came up there and Judge Johnson asked him whether he wanted this claim allowed and he said he did. There was no testimony introduced of any character as to his claim, pro or con. Mr. Weeks representing the defendant and Mr. Hughes and Mr. Cook representing Mrs. Keele, were heard. We had nothing to say; were permitted to say nothing because there was no party defendant except Mr. Weeks and no way to act in the defense under the ruling of the court except to allow and certify back and vacate as in that section provided. Mr. Cook and Mr. Hughes objected continuously to us stating we appeared for the defense. Mr. Weeks did not appear by any attorney."

On cross-examination he testified as follows:

"Mr. Weeks did not appear in court and say he had investigated the matter; he told me that in a private conversation. When Mr. Weeks told the court I did not represent him, I walked out of hearing of the court and said some things in my own language; I think I used some words that I shouldn't like to quote in this connection. Personally I have the highest regard for Mr. Weeks, but I thought that he used very poor judgment in procuring the allowance of this claim. I think when Mr. Weeks informed the court I did not represent him, I cussed all three of you, at least to Mr. Rosenberger. I have no prejudice against Mr. Weeks; I think whoever advised him advised him very badly. I think Sam T. Weeks is as good a man as there is in the State of Missouri."

This was about all the evidence introduced in support of the motion to vacate. In opposition to the motion appellant introduced in evidence the note or demand against the estate and the agreement to transfer the demand from the probate court to the circuit court to be heard in the latter court.

S. P. Sailor testified that he knew John Keele in his lifetime; that shortly before his death deceased asked the witness to write an instrument for him (deceased) saying that he wanted his mother to get what property he had because she had done more for him than any one else. Sailor went to the home of the father of the deceased and wrote the note or document in controversy, which was attested by J. P. Bailey and Rufus W. Hunley, after John Keele had signed it; that the latter raised up in bed and signed it, his mind being in good condition then.

J. P. Bailey testified that he was present when John Keele died and prior to his death signed the paper as witness to Keele's signature; that "it seemed to be his will or wishes; I do not know what you lawyers could call it; what he had and where he wanted it to go; he wanted the property to go to his dear mother. This paper was read to me before I signed it, I believe John read it himself." The witness testified on cross-examination that it was the wish of the deceased that his mother should have what he possessed. Keele died of consumption and was sick a long time. The witness said he did not understand the document as a note, but that the deceased gave it to his mother for her kindness to him during his illness.

The judgment of the circuit court entered November 25, 1904, allowing the demand against the estate of the deceased, was introduced in evidence.

W. B. Cook, one of the attorneys for appellant, testified that when the demand was originally heard by the circuit court he objected to an attorney appearing for Isaac Keele for the reason that the case was against the administrator; that the administrator consented to the hearing of the case and stated to the court that he had investigated the merits of the claim and had no defense to offer.

W. C. Hughes, another attorney for appellant, testified substantially to the same effect. He swore that Weeks, the administrator of the estate, at the hearing of the demand, said he had employed no counsel to contest it, because he had talked with the two attesting witnesses and others who knew the facts, and after an investigation of the claim believed it to be just and that no defense could be made to it.

S. T. Weeks, the administrator, testified that when the claim was originally presented to the probate court, he requested Judge Barnett to delay transferring it to the circuit court in order that its merits might be investigated; that he, the administrator, talked with at least four witnesses and when the cause came on for hearing in the circuit court, stated to the court that he had investigated it and had no defense to make and was willing for the appellant to take judgment by consent.

Hon. J. D. Barnett swore as follows:

"Until January 1st I was probate judge of Montgomery county; this note was filed for allowance shortly after the appointment of administrator. I was disqualified to try the case, and the agreement was made between the parties to certify it to the circuit court; that agreement was shortly before the term of circuit court...