Kneuven v. Berliner's Estate

• Decision Date: 05 July 1932
• Docket Number: No. 17159.,17159.
• Citation: 54 S.W.2d 494
• Parties: KNEUVEN v. BERLINER'S ESTATE.
• Court: Missouri Court of Appeals

54 S.W.2d 494

KNEUVEN v. BERLINER'S ESTATE.

No. 17159.

Kansas City Court of Appeals. Missouri.

July 5, 1932.

Rehearing Denied October 3, 1932.

Appeal from Circuit Court, Chariton County; Paul Van Osdol, Judge.

"Not to be officially published."

Action by Anna C. Kneuven against the Estate of Frank Berliner, deceased. Judgment for plaintiff, and defendant appeals.

Affirmed.

John D. Taylor, of Keytesville, and J. H. Denny, of Glasgow, for appellant.

Ray Crow and Percival Birch, both of Keytesville, for respondent.

TRIMBLE, P. J.

The action herein is based on a demand against the estate of Frank Berliner, deceased, presented by his second daughter, the plaintiff, and filed in the probate court of Chariton county, Mo., wherein she asks to have allowed in her favor the sum of $2,377.50, being the balance alleged to be due her for board and lodging and for "certain services such as washing his clothing, mending and caring therefor" furnished by her at the special instance and request of decedent from and after August 14, 1911, down to August 14, 1925, which services were alleged to be reasonably worth $2,662.50, and on which certain credits were given, as follows: $25 paid by decedent in the year 1913; $60 in the year 1917; $35 in the year 1918; $90 in the year 1922; and $75 in the year 1925; the credits aggregating $285, and leaving due the amount claimed, to wit, $2,377.50.

Copy of demand, with notice of presentation, was served on the executor July 18, 1930, and demand was filed in the probate court, August 12, 1930. Frank Berliner died testate October 18, 1928. His will was probated, and letters testamentary were issued to decedent's son, Frank Berliner, Jr., October 24, 1928, and notice thereof was duly published; the first insertion being on November 2, 1928. The demand sued on was therefore filed 1 year, 9 months, and 18 days after grant of letters; notice thereof having been first published within 10 days thereafter. This was more than the one year allowed by section 183, R. S. Mo. 1929 (Mo. St. Ann. § 183), after which demands not thus filed are forever barred, "saving to infants, persons of unsound mind or imprisoned, and married women one year after the removal of their disability." Plaintiff was a married woman at the death of testator, and claims exemption from the bar of this statute under the saving clause as to the married women quoted above.

The cause was tried in the probate court, thereafter appealed by the executor to the circuit court, where the jury returned a verdict in plaintiff's favor for $1,185, and the executor has appealed to this court.

Both in the probate and circuit courts, defendant at the outset of the trials pleaded the above-mentioned section 183 in bar of the demand, and also that it was barred by the general as well as special statute of limitations of the state. These were overruled, and this action of the circuit court is the basis of two of the points complained of here.

The record discloses, and the court instructed, that "the family relation existed between the plaintiff, Anna Kneuven, and her father, Frank Berliner." In 1906 testator's wife died, and testator was left living on his farm of 70 acres in Chariton county. There were five children, Frank, Jr., Irene, Anna C., Oscar, and William E. Shortly thereafter Frank, Jr., left the home, and then Irene went to St. Louis and married. In 1911 Oscar left home, but returned in 1916 and remained until drafted into the A. E. F. of the World War. This left Anna C. and William E. at home with the father. Anna C. was born in 1890, and was therefore about 16 when her mother died. In 1911 she married William Cozzell, who at once came into the family and remained there until his death in 1917. By him she had three children who were members of, and received their support in, the same household. The husband Cozzell had operated the farm from the time of his marriage until his death, and thereafter Anna C., that is, Mrs. Cozzell, continued to operate the farm on the same terms her husband had done. In 1923 or 1924 Mrs. Cozzell married her present husband, Mr. Ben. Kneuven, who came to the farm and became a part of the family, and continued in that relation until testator's death.

The evidence is that during the time Cozzell lived on the farm, he, and after his death his widow, ran the farm, the terms between them being that the owner (testator) got two-fifths of the crops grown, and the operator of the farm got three-fifths. There is evidence from witnesses placed on the stand in plaintiff's behalf that this was a liberal arrangement in favor of them, since the usual terms in that neighborhood were that the owner would get one-half of the crops and furnish the seed, and the tenant would get the other half of the crop. However, the plaintiff's contention is that the father was to get two-fifths and pay for his board and lodging, while the defendant's evidence is that along with, or in addition to, his two-fifths of the crops, the father was to receive his board and lodging. From 1911 up to August, 1925, the crops were divided between them in the proportion of two-fifths to the father and three-fifths to the operators of the farm.

The claim of plaintiff that the father was to pay for his board and lodging was attempted to be shown by alleged declarations of testator during his life.

Before setting forth a résumé of these, it may be well to state certain matters occurring prior to the filing of this claim, since appellant raises a point or two that cannot be clearly understood without an understanding of such prior matters.

Before the demand sued on was filed, two other demands were filed which covered the same services and same period as contained in the demand herein. The first was filed November 2, 1929, it being a joint demand on the part of plaintiff and her brother, William E. Berliner, subscribed and sworn to by both of them, and, as stated, covering the same period and items as the demand now in suit, but seeking the sum of $4,755, double the amount now sought by plaintiff in this action. The second demand was filed at the May term of the probate court, 1930, and covered the same period and same items, it being sworn to by plaintiff alone, the said William E. Berliner being eliminated therefrom as a plaintiff, and the amount claimed was one-half of the amount claimed in the first demand. In both of said demands it was alleged that on August 14, 1911, plaintiff and William E. Berliner rented of the deceased his farm in Chariton county, including the house and all appurtenances thereto, and did then and there agree to board said Frank Berliner from and after that date, for $30 per month, which said amount the said Frank Berliner (decedent) then and there agreed to pay; that on and after said Anna C. Kneuven and William E. Berliner did furnish to said Frank Berliner and he did receive board and lodging until about the 14th day of August, 1925, a period of 14 years or 168 months at the price of $30 per month, aggregating $5,040, from which were deducted alleged credits aggregating $285, leaving $4,755 due.

William E. Berliner, was at the date of the agreement alleged in these two former demands, only 12 years old.

These two demands were abandoned, and at the trial of the present demand filed August 12, 1930, William E. Berliner appeared as a witness for plaintiff, and testified that from 1911 to 1925 the father, witness's sister, the plaintiff, and the others at the times heretofore stated, all lived together on that farm as one family, all eating at the same table and living as one family; that the father died October 12, 1928, when he was seventy-seven years old, making him about 60 years old when the alleged agreement was made; that he was a good strong man, "able to work when he wanted to"; he "didn't do much of anything"; "read his daily paper and smoked his pipe; * * * sometimes he cut weeds or hoed in the garden and looked for the mail to pass; * * * if he worked in the field, he worked for the neighbors on the outside."

Witness stated on cross-examination that he signed and swore to the first demand hereinabove referred to, but he didn't know what was in it; didn't know he and his sister, the plaintiff herein, were presenting a claim against his father's estate for $4,700; that Mrs. Kneuven told him to sign a paper and he did so and went on about his business; that witness himself never made any contract with his father; had nothing to do with it.

William E. Berliner further testified concerning the alleged contract his sister, the plaintiff, made with her father in 1911, as follows:

"He (the father) was supposed — this is the way the contract was made; she had to furnish her own seed wheat and pay her own delivery bills, and she got three-fifths and he got two-fifths, and he had to pay her for board and lodging; * * * she had to deliver all grain at the elevators and see it was all delivered and all clover seed and everything put on the place"; his sister continued to run the farm until 1925; he, witness, farmed for her until 1925. "She just paid me whenever she got any money; * * * she took the crops and I took the cash from her." Witness's father lived at that time "with me and my sister"; she furnished him board and lodging and did his washing and mending, looked after his room and kept that tidy and clean; from 1911 to 1925 witness's father "made small payments, made some on grocery bills and some on hospital and marked the checks therefor `board'"; that during the time from 1911 to 1925, he saw his father pay his sister money and heard him say they were payments on board bill.

Witness further testified that during that time, from 1911 to 1925, he heard conversations between his father and sister (the plaintiff) regarding the payment of board. He could not fix the time more definitely than that it was between 1911 and 1925. Objections, made that this was too remote and indefinite, were...