Manley, Admx., v. Ryan

• Decision Date: 04 April 1939
• Docket Number: No. 25000.,25000.
• Parties: REBECCA S. MANLEY, ADMINISTRATRIX D.B.N.C.T.A. OF THE ESTATE OF FRANK A. BELLOWS, DECEASED (PLAINTIFF) RESPONDENT, v. MRS. MARION HENSIEK RYAN, DEFENDANT APPELLANT.
• Court: Missouri Court of Appeals

126 S.W.2d 909

REBECCA S. MANLEY, ADMINISTRATRIX D.B.N.C.T.A. OF THE ESTATE OF FRANK A. BELLOWS, DECEASED (PLAINTIFF) RESPONDENT, v. MRS. MARION HENSIEK RYAN, DEFENDANT APPELLANT.

No. 25000.

St. Louis Court of Appeals. Missouri.

Opinion filed April 4, 1939.

Appeal from the Circuit Court of City of St. Louis. — Hon. Thomas J. Rowe, Judge.

REVERSED AND REMANDED (with instructions).

Alex R.A. Garesche and James V. Frank for appellant.

(1) The judgment is not supported by the evidence and is so grossly contrary thereto that this court should reverse the judgment and remand the cause with directions. Moore v. Hutchinson et al., 69 Mo. 429; In re Lankford's Estate (Mo.), 197 S.W. 147; Miss. Valley Tr. Co. v. Taylor et al. (Mo. App.), 238 S.W. 558. (a) Appellant and her husband were competent witnesses to testify as to the gifts inter vivos. Tomlinson v. Ellinson, 104 Mo. 105; Stuyvaert v. Arnold, 122 Mo. App. 421; Loan Co. v. Killian, 153 Mo. App. 106; Brokerage Co. v. Humes, 193 Mo. App. 120; Slagle v. Callaway, 333 Mo. 1055; Kneuven v. Berliner's Estate, 54 S.W. (2d) 494. (b) It was not necessary that the answer affirmatively plead the gift. Blatz v. Lester, 54 Mo. App. 283; Turner v. Snyder, 132 Mo. App. 320; Cushing v. Powell, 130 Mo. App. 576; Jones v. Rush, 156 Mo. 364. (2) The judgment should be reversed and the cause remanded for the reason that the action in the circuit court was prematurely brought. State ex rel. Toller v. Ennis, 7 S.W. (2d) 737; State ex rel. Noll v. Noll, 189 S.W. 582; State ex rel. Knisley v. Holtkamp, 266 Mo. 347; Picot v. Bates, 47 Mo. 390; Woodworth v. Woodworth, 70 Mo. 601; Van Bibber v. Julian, 81 Mo. 618. (3) The judgment should be reversed and the cause remanded for the reason that there is no competent evidence supporting the damages awarded by the judgment. Exchange National Bank v. Daley, 237 S.W. 846; Leimkuehler v. Wessendorf et al. (Mo.), 18 S.W. (2d) 445; 65 C.J., sec. 247. (4) The judgment is excessive.

Thomas B. Curtis for respondent.

(1) The judgment is supported by the evidence, and there is no competent evidence of the appellant that the court might have considered. (a) Under a general denial all appellant's testimony to support an affirmative defense was incompetent. R.S. Mo. 1929, sec. 776; Amer. Sash & Door Co. v. Commerce Tr. Co., 25 S.W. (2d) 545; Northrup v. Ins. Co., 47 Mo. 435; Neuham v. Kenton, 79 Mo. 382; Kersey v. Garton, 77 Mo. 645; Hudson v. Rwy. Co., 14 S.W. 15, 101 Mo. 13; Blatz v. Lester, 54 Mo. App. 283. (b) Appellant is incompetent to testify to the conversation she had with the deceased person, which conversation she claims constituted an oral gift inter vivos by the deceased person to her. R.S. Mo. 1929, sec. 1723; Scott v. Riley, 49 Mo. App. 251; Thomasson v. Ellison, 104 Mo. 105, 16 S.W. (2d) 201. (c) A gift inter vivos must be established by clear, unequivocal evidence which convinces beyond a reasonable doubt. Albrecht v. Slater, 233 S.W. 8; Lohnes v. Baker, 156 Mo. App. 397, 137 S.W. 282; Martin v. First Natl. Bank, 206 Mo. App. 629, 227 S.W. 656; Spencer v. Vance, 57 Mo. 427; In re Soulard Estate, 141 Mo. 642; Jones v. Fells, 73 S.W. 93; Reynolds v. Hausen, 191 S.W. 1030; McCune v. Daniel, 225 S.W. 1020; Newell v. Edom, 242 S.W. 701. (d) The appellate courts rarely interfere with the discretion of the trial court concerning the weight of the evidence. In re Lankford's Estate, 197 S.W. 147; Whitesell v. Ransen, 79 Mo. 258. (2) The only action respondent could bring was in the circuit court. The probate court had no jurisdiction. Bank of Willow Springs v. Lillibridge, 316 Mo. 968, 293 S.W. 116; Cunningham v. Kinnerk (Mo. App.), 74 S.W. (2d) 1107.

HOSTETTER, P.J.

This suit was instituted in the Circuit Court of the City of St. Louis on the 24th day of August, 1936, by Rebecca S. Manley, administratrix d.b.n.c.t.a. of the estate of Frank A. Bellows, deceased, against defendant, Mrs. Marion Hensiek Ryan for conversion.

The petition set out in substance that plaintiff was the duly appointed and acting administratrix d.b.n.c.t.a. of the estate of Frank A. Bellows, deceased; that in December, 1929, Clara C. Bellows, second wife of Frank A. Bellows, died intestate and her niece, Marion Hensiek, now Mrs. George F. Ryan, the defendant in this action, was duly appointed administratrix of her estate and qualified and served as such; that among other things she received and inventoried as assets of said estate were two solitaire diamond rings appraised at $1200; that Dr. Frank A. Bellows was the husband and heir of Clara C. Bellows and entitled to the diamond rings so inventoried; that the estate of Clara C. Bellows remained open and undistributed for several years and while in this condition Dr. Bellows died, apparently intestate, on August 25, 1932; that Dr. Bellows had been duly adjudicated insane on February 1, 1932, at which time Anton Schuler, public administrator, was made guardian of his person and estate; that in June, 1933, the last will and testament of Dr. Bellows, which had been executed on September 15, 1931, was found and submitted to Anton Schuler; that on September 18, 1933, the will was duly admitted to probate and Walter F. Sheehan, then public administrator of St. Louis was appointed administrator when the Mercantile Commerce Bank and Trust Company, the executor named in the will, declined to act; that plaintiff was named sole and residuary legatee except for a one dollar bequest to Addie S. Thornthwaite, the doctor's daughter by his first wife; that on or about June 13, 1933, the defendant, Marion Hensiek Ryan, knowing of the doctor's death nine months before, and without the scope of her duties as the administratrix of the estate of Clara C. Bellows, sent the two diamonds, which rightfully belonged to Dr. Frank A. Bellows, to Addie Sarah Thornthwaite; that as administratix and sole beneficiary of Dr. Bellows, plaintiff is rightfully entitled to said diamonds and all other assets of Dr. Bellows' estate; that she has made demand for these diamonds on the defendant, and defendant has failed to turn them over to her; that she has been unable to obtain them from Addie Sarah Thornthwaite without great expense; that the last known address of said Addie Thornthwaite was somewhere in Alaska where plaintiff presumes the two diamonds were sent; that because of defendant's wrongful act of turning over the diamonds to an improper person instead of to the administratrix of Dr. Bellows' estate, who is the proper person, the estate of Dr. Bellows has been deprived of the value of these diamonds for three years and has been kept open at some cost, caused by defendant's wrongful act; that, therefore, plaintiff, as administratrix of Dr. Frank A. Bellows' estate, prays judgment against the defendant in the sum of $2500 and costs.

The answer was a general denial.

The case was heard by the trial judge without the intervention of a jury.

There was considerable testimony, particularly that given on behalf of the defendant, which was objected to by the opposing party, but the trial court did not rule on many of the objections, but heard the case through and decided the issue in favor of the plaintiff.

The facts set out in the plaintiff's petition were generally speaking supported by the files of the probate court and the oral testimony.

The facts are substantially as follows:

In December, 1929, Clara C. Bellows died intestate, leaving surviving her, a husband, Frank A. Bellows, a niece, Marion Hensiek (later, by marriage, Marion Hensiek Ryan), and a sister living in South Dakota, and, shortly thereafter, her said niece was appointed administratrix of her estate. Among the assets of the estate were two solitaire diamond rings which were inventoried at a value of $1200. It was shown that on December 29, 1930, a reclamation suit was filed by Dr. Frank A. Bellows, the surviving husband, claiming the two solitaire diamond rings on the ground that he had furnished the money which paid for them, and said rings were awarded to him by order of the probate court, although they remained in the possession of the administratrix.

It was shown that Dr. Frank A. Bellows was a dentist by occupation; had been twice married and became the father of Mrs. Addie Sarah Thornthwaite, who resided in Alaska and was a daughter by his first marriage. In the later years of his life Dr. Bellows practically became a dipsomaniac and shortly prior to his second wife's death, he shot her in the leg and she died as a result of infection of this wound. He was arrested and kept under surveillance for sometime. Whether he shot her accidentally or on purpose was the question which was in doubt.

On February 1, 1932, Dr. Frank A. Bellows was declared insane by action of the probate court, and his affairs were put into the hands of public administrator, Anton Schuler. On August 25, 1932, Dr. Bellows died, apparently intestate, and, on August 26, 1932, Anton Schuler, the said administrator in charge of Dr. Bellows' affairs, was appointed administrator of his estate by the probate court.

On or about June 13, 1933, Mrs. Marion Hensiek Ryan, administratrix of the estate of Clara C. Bellows, filed her report showing disbursement of the two diamond rings to Addie Sarah Thornthwaite, and a receipt for the two diamond rings was filed, and the probate court approved this disbursement.

On June 23, 1933, an instrument, executed on September 15, 1931, purporting to be the last will and testament of Dr. Frank A. Bellows, was filed in the probate court of the city of St. Louis and was duly admitted to probate on September 18, 1933. In said will Rebecca S. Manley was named as the sole and residuary legatee except for a one dollar bequest to the surviving daughter Addie Sarah Thornthwaite.

Thereafter, Rebecca S. Manley was duly appointed and qualified as administratrix d.b.n.c.t.a. of the estate of Frank A. Bellows, deceased, and in such capacity instituted this suit for conversion...