Kerwin v. Kerwin

• Decision Date: 25 June 1918
• Docket Number: No. 2249.,2249.
• Citation: 204 S.W. 922
• Parties: KERWIN v. KERWIN.
• Court: Missouri Court of Appeals

204 S.W. 922

KERWIN v. KERWIN.

No. 2249.

Springfield Court of Appeals. Missouri.

June 25, 1918.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Action by Bertha Kerwin, administratrix of the estate of John A. Kerwin, deceased, against William Kerwin. Judgment for plaintiff, and defendant appeals. Reversed.

See, also, 204 S. W. 925.

Fred L. English, of St. Louis, and J. H. Keith, of Ironton, for appellant. Edgar & Edgar, of Ironton, and Watts, Gentry & Lee, of St. Louis, for respondent.

STURGIS, P. J.

The plaintiff began this action by filing in the circuit court of Iron county her petition alleging:

That she (the surviving widow) is the duly qualified and acting administratrix of the estate of her husband John A. Kerwin, deceased, late of said county, who died October 22, 1016; that said John A. Kerwin was sick and in failing health for some 18 months prior to his death, and was during such time in the hospitals and under the care of physicians; that in May, 1916, the said Kerwin owned a considerable personal estate consisting of bonds and notes; "that on the _____ day of May, 1916, while the said John A. Kerwin was in his last sickness, and expecting to live but a short time, and shortly before his death, he placed his entire personal estate in the hands of the defendant, herein (his son) with oral instructions to said defendant to use the same for the benefit of said John A. Kerwin during his lifetime, and at the death of said John A. Kerwin the defendant to divide said estate as follows: $3,000 to Katherine Stromberg, daughter of said John A. Kerwin; $2,500 to Mayme Grohns, a daughter of said John A. Kerwin, and the balance to be retained by defendant as his own property; that said John A. Kerwin further instructed defendant to give no part or parcel of said estate to Bertha Kerwin, wife of said John A. Kerwin. Plaintiff further states that said John A. Kerwin 8) arranged his financial affairs in the manner aforesaid in contemplation of death, and for the fraudulent purpose, and with the fraudulent intention, of depriving his wife of her marital rights in said estate, and that the defendant herein received said personal property well knowing the reason and intention of the said John A. Kerwin, and with a view to aid said Join A. Kerwin in depriving the said Bertha Kerwin of her marital rights in said estate; that the said John A. Kerwin owed no debts at the time of his death, nor is his estate, now being administered upon in the probate court of Iron county, Mo., in any wise indebted or incumbered, nor did he owe anything on said _____ day of May, 1916, and no claims have been filed against said estate, and the time for filing claims against said estate will expire October 27, 1917."

There is no claim that the deceased's mind was in any wise impaired. No answer appears in the record, but the case was tried on the theory that defendant denied the allegations of the petition, and darned this property as a valid gift from his father during his lifetime.

The defendant, by demurrer to the petition and at the trial to the evidence, contended that under the facts pleaded and proven the circuit court had no original jurisdiction of this proceeding, that the probate court only has original jurisdiction, and that the circuit court has jurisdiction only by appeal. The trial resulted in an ordinary money judgment for plaintiff in the sum of $7,118.50. The defendant has appealed, and again here challenges the jurisdiction of the circuit court. The trial court made a finding on which it based its judgment to the effect that the assets received by defendant of John A. Kerwin consisted of notes and bonds of the value of $9,600, and that in the companion suit to this, in which the widow, Bertha Kerwin, in her individual capacity sued the defendant for her dower interest in this property, the court awarded her $2,700. The trial court rendered judgment for the balance of the assets received by defendant from his father with interest.

Whatever else may be said of this proceeding, it is plainly one of the administratrix to recover from the defendant certain assets claimed by the administratrix to belong to the estate of John A. Kerwin and wrongfully withheld by defendant under claim of ownership in himself. The defendant contends that the only method of recovering such assets by the administratrix for the benefit of the heirs is by a proceeding under sections 72-74, R. S. 1909, providing for recovering goods, chattels, etc., of the deceased wrongfully withheld by any person. The plaintiff's contention is that the assets sought to be recovered here can only be reached by a proceeding in equity, and that the probate court has no equity jurisdiction.

This contention is, we think, settled in defendant's favor on the pleadings in the case, granting that plaintiff proved what she alleged. It is true that the petition is somewhat indefinite in saying that John A. Kerwin some six months before his death "placed his personal estate in the hands of defendant," his son; but the further allegation that the defendant was to use it for his father's benefit during his lifetime, and at his death divide it among Kerwin's children, and that this was done with the fraudulent intention of depriving the wife of her dower, making the attempt to dispose of the same testamentary in character and void, makes it evident that plaintiff means that there was a gift causa mortis by the father to the son in order to defeat the wife's right of dower therein. This is the view most favorable to plaintiff; for, if the defendant had no title whatever to this property, and same was owned by deceased at the time of his death, then it is quite certain, as we shall see from the authorities infra, that these assets of the estate could be recovered by a proceeding in the probate court. The plaintiff therefore takes the position in this court that the legal title to this property passed to the defendant during the lifetime of the father, and that a proceeding in equity was necessary to divest or annul such title in order to recover same for the estate of the donor.

The evidence in the case also shows that some six months prior to the father's death he gave his property to the son, giving him full possession thereof, and each of the notes has written thereon an assignment of the same to the defendant signed by the father. The bonds were payable to bearer and passed by delivery. The fact that the defendant was directed by the father to, and did later, give one bond to each of his sisters, is strong evidence of this fact. The plaintiff's strongest, if not only, claim is that this gift is void (or voidable rather) in an equity suit (but the same is true at law), because made without consideration, in contemplation of death, testamentary in character, and in " fraud of the wife's dower.

Under the latest rulings of the Supreme Court and the other Courts of Appeals we must hold that a proceeding to recover these assets under the facts pleaded and proven must be first brought in the probate court, and that the circuit court was without jurisdiction. The case of Brewing Co. v. Steckman, 180 Mo. App. 320, 168 S. W. 226, is the latest case we find on this subject, and is decisive of this case. There a creditor of the deceased brought "a creditors' bill in equity to declare defendant a trustee of money received from her deceased husband as a gift," and to subject same to the payment of his probated claim. It is pointed out that under the statute a creditor of the estate, as well as the administrator, can proceed in the probate court under sections 70-74, R. S. 1909. There, as here, a proper proceeding was begun in the probate court, but dismissed, and the equity suit commenced in the circuit court. A review of the cases is there had showing that the Supreme Court, after departing therefrom, leading astray the Courts of Appeals, had returned to the doctrine announced in Eans v. Eans, 79 Mo. 53, that the probate court has jurisdiction under the statute...