Maguire v. Wander
| Decision Date | 30 April 1946 |
| Docket Number | 39562 |
| Citation | 193 S.W.2d 900 |
| Parties | Catherine Ottenad Maguire, Appellant, v. Bernard J. Wander, as Executor of the Estate of Elizabeth Barutio, Deceased, Respondent |
| Court | Missouri Supreme Court |
From the Circuit Court of the City of St. Louis, Civil Appeal Judge William H. Killoren
Affirmed
Plaintiffs petition is in two counts, the first being to establish a trust, and to recover the amount thereof. It is claimed that during the lifetime of plaintiff's grandmother, Katharina Barutio, she placed in the hands of her daughter, Elizabeth, whose Executor is defendant, the sum of $6,000.00 "in cash or property" for the use and benefit of plaintiff, which Elizabeth, the aunt of plaintiff, commingled with her own funds, and failed to pay over to plaintiff, except sundry payments from 1904 to and including 1938 aggregating $1875.00, which were allegedly out of income and not corpus. The prayer of the first count is that the court ascertain and determine the terms and condition under which said $6,000.00 was placed in Elizabeth's possession, and that it be impressed with a trust in favor of plaintiff; that an accounting be had, and that judgment be rendered for the amount found due, and that the same be impressed with a lien against the property and estate of Elizabeth, and that the Executor be ordered to pay out of her estate the sum so found due. The second count alleges the grandmother delivered said sum to Elizabeth, who "was to pay the income or profits therefrom to plaintiff and upon demand by plaintiff the principal and accrued income less such payments as had theretofore been made" by Elizabeth to plaintiff; that up to and including the day of April, 1938, sums aggregating $1875.00 had been paid to plaintiff, and that the last payment, in the sum of $5.00, was made on the day of April, 1938; that Elizabeth "having departed this life [February 9, 1942], the said sum, together with interest thereon is now due and payable to plaintiff." The prayer was for judgment against the Executor for $6,000.00 with 6% interest from December 21, 1903, the date of the death of the grandmother.
Both counts of the answer are in substance the same. Each of said counts, after making certain formal admissions as to the relationship of the parties, dates of death, etc., averred that Elizabeth Barutio was a very charitable person who, during her lifetime, assisted financially and otherwise her various relatives, including plaintiff, with her own money and funds, and often distributed to her relatives, including plaintiff, various sums of money for their needs and comfort, and that any sums received by plaintiff during all the times mentioned in the petition were distributed to plaintiff as gifts, from Elizabeth's own funds and in order to assist plaintiff, who was often ill and without sufficient income for support and living expenses, and were given by Elizabeth to plaintiff to cover her needs, such as food, clothing, medical and hospital attention, and pin money. The answer specifically denied the allegations of the petition with reference to the grandmother having placed in Elizabeth's hands the sum of $6,000.00, or any sum whatever for the use of plaintiff, and generally denied each and every other allegation of the petition. The reply was a general denial. The court found for defendant on both counts, and dismissed plaintiff's bill, and plaintiff has appealed. The amount in dispute, exclusive of costs, exceeds the sum of $7500.00, thus investing this court with jurisdiction of the appeal.
Plaintiff, as a witness in her own behalf, undertook to testify concerning two paper-writings, identified as plaintiff's exhibits "1" and "2", but on the objection that such testimony would be incompetent under the so-called "dead man's statute," it was excluded. She then called her main witness, Roy Neece, a resident of Granite City, Illinois, who is a telegraph operator thirty-three years in the employ of the Wabash; also, for twenty-four years a Justice of the Peace, and in addition is engaged in the real estate and insurance business, and the sale of securities. The witness had become acquainted with plaintiff in the latter part of October, 1924. This arose out of the circumstance that plaintiff had been in correspondence with a psychology club, and the witness was a member of the club's membership committee. He called on plaintiff at her home in St. Louis, and found that she was an invalid in a wheelchair, and could not attend meetings of the club, in consequence of which she was furnished literature or books in the field of the club's activities. He saw her twice in the fall of 1942 at her home on Blackstone, and a number of times the next spring when he "dropped in on her at various times," sometimes bringing books, and sometimes not. In all, he has seen plaintiff probably ten or twelve times. He testified he met the aunt, Elizabeth, in 1925 at a place where plaintiff later lived and tried to interest her in the purchase of an annuity bond for her niece, the plaintiff, Catherine. In that connection, he testified as follows:
Q. Did she say whether or not up to that time she had used any of the principal of that trust fund in the support
- - - A. She didn't say if she did. I wouldn't say positively because I don't think she said, but she had that privilege of doing that, I remember that distinctly, that is the reason she turned me down on the sale, she wanted to use her own discretion, she could use the income or she could use the principal as she saw fit.
Q. That was the reason for not buying this annuity bond? A. That is the reason she gave me, anyway."
On cross-examination he stated that his "lead" came from plaintiff; that is, that Catherine had told him of the existence of the supposed trust fund, and acting on that "lead", he had had three conversations with the aunt in his efforts to induce her to purchase the annuity bond for Catherine. He was unable to recall if he had advised the aunt that he had learned of the fund through Catherine, but it was "quite probable" that he did.
In developing on cross-examination the matter of the three occasions on which he talked to the aunt about the proposed annuity bond, he testified that on the first one it was merely "brought in" - he "brought it up"; that at their next meeting, probably three weeks later, "the second conversation, that was concentrated on the trust fund;" and at their third meeting he just "bandied her about whether she changed her mind or not," explaining that by "bandied" he meant he
"Q. Then the only conversation you really had with her was the second time? A. That is the highlight of it, yes.
Q. And that is about nineteen years ago, isn't it? A. Yes, it will be nineteen years this spring.
Q. Now, you wanted to sell the policy and Catherine Maguire told you her aunt had some money? A. Yes, she told me that.
Q. And then you, as they say, tackled the aunt? A. That is right.
Q. Now, there wasn't anybody else present when you and the aunt had this conversation, was there? A. There was others in the house, but I wouldn't consider them present. They didn't pay any attention."
At the time this suit was filed, plaintiff sent for the witness, and they talked over the
On redirect examination said witness testified he had no financial interest in the case; and that the proposed annuity bond would have paid, he thought, $300.00 a year for life, and would have returned between nine and ten thousand dollars if she lived a normal expectancy.
It was shown that the inventory of deceased aunt's estate showed personalty in the sum of $17,514.53 and $10,180.00 in real estate. When the grandmother's estate was inventoried in 1903 or 1904 it consisted of $29,700.00 in stock of the Barutio Realty Company, and $92.20 in cash and chattels.
Defendant's counsel has fairly summarized the testimony of defendant's witness, and we adopt same, as follows:
Bernard Wander, defendant executor, and a nephew of deceased testified that he was a cousin of plaintiff and knew her from childhood; that she visited his home, and that Elizabeth Barutio,...
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