Kurzweil v. Enyart, 17546.

• Citation: 54 S.W.2d 464
• Decision Date: 05 July 1932
• Docket Number: No. 17546.,17546.
• Court: Missouri Court of Appeals
• Parties: KURZWEIL et al. v. ENYART.<SMALL><SUP>*</SUP></SMALL>

54 S.W.2d 464

KURZWEIL et al. v. ENYART.^*

No. 17546.

Kansas City Court of Appeals. Missouri.

July 5, 1932.

Rehearing Denied October 3, 1932.

Motion to Rehear on Modified Opinion Denied November 21, 1932.

Appeal from Circuit Court, Jackson County.

Action by Vincent Kurzweil and another against Mamie Enyart, also known as Mamie Kurzweil, administratrix of the estate of Joseph Kurzweil, deceased. From a decree in favor of plaintiffs, defendant appeals.

Affirmed.

Harding, Murphy & Tucker and L. L. Watts, all of Kansas City, for appellant.

Jacobs & Henderson and Thos. E. Deacy, all of Kansas City, for respondents.

CAMPBELL, C.

Plaintiff brought this action seeking to have set aside, on the grounds of fraud, two allowances of the probate court of Jackson county in favor of defendant and against the estate of Joseph Kurzweil, who died in said county on November 21, 1928. Trial of the cause resulted in decree as prayed by plaintiffs. The defendant appeals.

Shortly after the death of said Joseph Kurzweil, the probate court of Jackson county issued letters of administration to defendant upon the estate of said decedent. Thereafter, on December 12, 1928, the said probate court, upon the application of defendant, entered an order and judgment allowing to defendant the sum of $400 under the provisions of section 108, R. S. Mo. 1929 (Mo. St. Ann. § 108), and an order and judgment allowing to defendant the sum of $1,200 under the provisions of section 107, R. S. Mo. 1929 (Mo. St. Ann. § 107). Defendant obtained letters of administration and the said allowances upon the representations and allegations that she was the widow of said decedent.

Defendant and Virgil L. Enyart were married to each other in Macon county, Mo., in the year 1895, and thereafter lived together as husband and wife for about fifteen years. During this period they resided in various places, the last two years of which were in Kansas City. In 1918 defendant and Joseph Kurzweil began living together in Kansas City and continued to live together until his death. They were married to each other in Kansas City on May 29, 1928.

The cause was tried upon the theory that, in event defendant and Virgil L. Enyart were not divorced, and that defendant procured the allowances by knowingly and falsely representing to the probate court that she was the lawful widow of Joseph Kurzweil, plaintiffs were entitled to the relief sought.

Charles W. Kurzweil, brother of the decedent, testified that he had several conversations with his brother Joseph and the defendant concerning their relations during the period they were living together and before the marriage ceremony was performed in which he remonstrated with them about living together; "asked him why he didn't get married and live right," to which his brother replied, "I can't; her husband hasn't got no divorce"; that the several conversations, as stated, were had in the presence of defendant, and that she corroborated the statement made by Joseph Kurzweil; that on one occasion, five or six years before the trial, he was in the home of his brother and the defendant, and the defendant introduced him to Virgil L. Enyart "as her husband," saying that he came there to see his children; that in the year 1930 he met Virgil Enyart in Sheffield, Mo., and took him to the office of plaintiffs' counsel. Later, upon due notice, the plaintiffs took Enyart's deposition.

Mrs. Anna Tucker, sister of the decedent, testified that she asked her brother and the defendant why they did not get married, to which he replied that they could not do so for the reason that the defendant had a living husband from whom she had not been divorced, to which statement the defendant acquiesced; that about two weeks before her brother's death, she tried to "convert him back to the Catholic Church," and again he said that defendant had not been divorced from Enyart, and again the defendant acquiesced.

Plaintiffs introduced the deposition of Virgil L. Enyart. The sum of his evidence is that he had not obtained divorce from the defendant; that he had seen the defendant three times since they separated; the last time was while he was in a hospital in Kansas City, about August 1, 1930; that he was a "floater," had worked in Oklahoma, Kansas, Texas, California, Wyoming, and Old Mexico; that after separating from defendant he lived with a "number of women. * * * They always took my name. I have lived with them all over the country." He further testified that he was "going to stay here."

The defendant introduced evidence tending to show that Virgil L. Enyart was a dope fiend, had been convicted of many crimes, bigamy not being one of them; that plaintiff Charles W. Kurzweil, shortly before Enyart's deposition was taken, paid the rent for a room in Kansas City which was occupied by Enyart; that presently Enyart exhibited a considerable sum of money, the inference being that it was furnished by Charles W. Kurzweil.

Defendant introduced the deposition of Margaret Enyart, which was taken in California. She testified that she and Virgil Enyart were married to each other in California in November, 1926, and separated about 1927; that at the time of her marriage she knew that Enyart had theretofore married.

"Q. That is, at the time you married him, you knew that he had been married before? A. I did.

"Q. Did he advise you whether he had been divorced or whether his wife was dead? A. No, I know that she is living, but he didn't say anything about his divorce; she was married before me and him was married, I am pretty sure — that is, he told me she was. * * *

"Q. Well, did Virgil Enyart ever tell you that he had been divorced? A. Yes, sir. * * *

"Q. So that at the time you married him, you were satisfied that he had been divorced from his previous wife? A. I certainly was.

"Q. Did you know her name? A. No, I didn't know her name — only just `Enyart' — that's all the name I knew her to go by — I wrote to her before I was married and got letters from her."

The answer of the witness was stricken out by the court upon plaintiffs' objections.

The witness further testified that both before and after her marriage to Enyart she wrote letters to Mrs. Addington, defendant's daughter. One of the letters, written in 1925, was signed "Mrs. Margaret Enyart." There is nothing in the letter to indicate that the writer was the wife of Virgil Enyart except the name signed thereto. The letter was written more than one year before the marriage of the witness and Virgil Enyart. The witness, on cross-examination, said that the Virgil Enyart whom she married was 5 feet 4 inches tall, had blue eyes, black hair, and weighed about 160 pounds.

There was evidence in defendant's behalf that Virgil L. Enyart was a patient in the City Hospital in Kansas City in the summer of 1930 under the name of C. L. King, and that he represented himself as being single.

Lydia Gwinnup, an aunt of Virgil L. Enyart, testified for defendant that she saw him about 1923 at her home in Tulsa, Okl.; that on this occasion he told her "he had received a divorce and was re-married and was very happy"; that Enyart was a portly man, weighing 210 or 215 pounds, grey eyes, light brown hair, somewhat grey, and 5 feet 9 or ten inches tall.

Mrs. Addington, defendant's daughter, testified that her father deserted her mother about 1914; that he did not thereafter contribute to the support of herself or mother; that after the separation her father visited her four or five times in Kansas City; that the last visit was in the year 1925, at which time he told her that he was married and would bring his wife to see her, but at no time did he say anything about a divorce; that she wrote several letters to her father, one of which was written at the instance of her mother and Joseph Kurzweil about March, 1928, in which she asked him if he was divorced; that her father replied by letter, written in Los Angeles, Cal., saying that "he was divorced and had been married for a long time"; that she gave the letter to her mother and Joseph Kurzweil; that diligent search has been made for the letter by herself and mother, but they were unable to find it; that about August 1, 1930, she saw and talked with her father twice while he was in a hospital in Kansas City; that he entered the hospital under the name of C. L. King; that on her second visit to the hospital to see her father she asked him if he had obtained a divorce from her mother, to which he replied, "Sure I am divorced," and that when he got out of the hospital he would "send them the divorce papers"; that she did not ask him when or where the divorce was granted, though she knew this action was pending; that she told her mother about the conversation with her father but did not tell her mother's counsel about it.

Defendant, in her own behalf, testified that she and Virgil L. Enyart were married in 1895; that he was convicted of felony while they were living in Arkansas in 1904, and that he had previously served a term in the Missouri penitentiary; that he deserted her and their children in 1910 while they were living in Kansas City; and that she had not seen or talked with him since that time. In her deposition, which was taken before the trial of the cause, she stated that she had seen Virgil L. Enyart in Kansas City five or six years before the taking of the deposition. She further testified at the trial that she and Joseph Kurzweil began living together in Kansas City in 1918 and thereafter lived together until his death; that she and Joseph Kurzweil were married to each other on May 29, 1928, which was after her daughter had shown her two letters written by Virgil L. Enyart, in each of which he said he was divorced; that shortly before the marriage, doctors told Joseph Kurzweil that he did not have long to live; that at the time of the marriage in 1928 she in good...