Kiel v. Osterwald

• Decision Date: 02 December 1930
• Docket Number: No. 21253.,21253.
• Citation: 32 S.W.2d 778
• Parties: KIEL v. OSTERWALD.
• Court: Missouri Court of Appeals

32 S.W.2d 778

KIEL v. OSTERWALD.

No. 21253.

St. Louis Court of Appeals. Missouri.

December 2, 1930.

Rehearing Denied December 16, 1930.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Action by Julia L. Kiel against Otto Osterwald, administrator of the estate of Robert Schmidt, deceased. From an adverse judgment, the plaintiff appeals.

Affirmed.

Jesse H. Schaper and Randolph H. Schaper, both of Washington, Mo., for appellant.

H. A. Krog, of Washington, Mo., for respondent.

BECKER, J.

This is an action in equity filed in the circuit court of Franklin county, Mo., to set aside the allowance of certain claims against the estate of Robert Schmidt, deceased, by the probate court of Franklin county, on the ground that such judgments were procured by defendant and others through fraud. On the hearing of the case, the chancellor sustained the demurrer to the evidence at the close of defendant's case, and rendered judgment dismissing the plaintiff's bill and allowing the sum of $100 in favor of defendant as compensation for services rendered by his attorney in the case, and taxed the same as costs against plaintiff, from which judgment the plaintiff in due course has appealed to this court.

It appears that one Louis Schmidt died in April, 1923, in Franklin county, and left surviving him plaintiff and one Robert Schmidt as his only children and heirs at law, and that by his will the defendant, Otto Osterwald, was appointed executor thereunder; that, upon the final settlement of the estate, in May, 1924, pursuant to an order of final distribution by the probate court, Osterwald paid plaintiff the sum of $5,268.02 as her distributive share in the estate of her father, and, under the provisions of the will of said Louis Schmidt, as trustee for the said Robert Schmidt, he retained in his own possession a like amount, such trusteeship being necessary in the judgment of the testator because of the mental and physical condition of said Robert Schmidt.

Defendant, Osterwald, continued to use the trust estate for the benefit of said Robert Schmidt from May, 1924, to March 10, 1928, when the said Robert Schmidt died intestate in Franklin county, Mo., leaving plaintiff, his sister, a resident of the state of Illinois, as his only heir at law. The defendant, Osterwald, was granted letters of administration upon the estate of Robert Schmidt, deceased, and filed an inventory and appraisement as such administrator, in which he charged himself with the sum of $3,358.34 as the total value of the estate.

During the period of time that Osterwald was in charge of the trust estate for Robert Schmidt, and up to the time of his death, he had placed Robert Schmidt with Christ Martin and Mary Martin, his wife, who owned a farm in Franklin county, and paid them the sum of $35 per month for Robert's room and board.

The petition avers that defendant, intending and designing to acquire a large amount of money from the estate of Robert Schmidt, to which he was not justly entitled, and in utter disregard of the rights of plaintiff as the sole heir and distributee of said Robert Schmidt, deceased, and to wrong and defraud her of her just rights to the same, fraudulently contrived and schemed to procure, and did procure, two judgments of allowance against the said estate, rendered by the probate court of Franklin county, one in favor of Mary Martin for the sum of $500 upon a false and fraudulent account for services alleged to have been rendered by her to said Robert Schmidt for the six months ending March 10, 1928, the date of his death; and the other in favor of defendant as testamentary trustee under said last will, for the sum of $200, upon a false and fraudulent account for services alleged to have been rendered by him in behalf of said Robert Schmidt from April 1, 1923, to March 10, 1928, the date of his death.

The petition then avers that, in furtherance of defendant's design to cheat and defraud plaintiff and to deceive the said probate court, the defendant, by affidavit made to each of the demands so allowed against the estate, procured the probate court to approve his semiannual settlement showing a balance of $2,569.08 in his hands, in which settlement defendant took credit for $500 for the payment of the allowed claim of Mary Martin, and later procured the approval of his final settlement showing a balance of $2,044 in defendant's hands belonging to said estate, in which final settlement he took credit for $200 for the payment in like sum of his own allowed claim.

The petition concludes with a prayer that the court by its decree set aside and annul the said judgments of the probate court allowing the two demands, one in the sum of $500 in favor of Mary Martin, and the other in favor of defendant in the sum of $200, against said estate, and that the court set aside and annul its approval of the semiannual and of the final settlements and the final order of distribution theretofore made by the court.

The answer admits the allegations in plaintiff's petition excepting the charge of fraud, as to which there is a general denial, and for separate defense the answer sets up that plaintiff did not within four months after the demands mentioned in the petition had been allowed against the estate file her affidavit to vacate such allowances and judgments as provided by section 211, Rev. Stat. of Mo. 1919, and did not appeal from the approval of the final settlement of...