Michaelson v. Wolf

Decision Date12 October 1953
Docket NumberNo. 43263,No. 2,43263,2
Citation364 Mo. 356,261 S.W.2d 918
PartiesMICHAELSON et al. v. WOLF
CourtMissouri Supreme Court

Barnett & Skeer, Ben E. Pener, Kansas City, for appellants.

Howell, Jacobs & Howell, Floyd E. Jacobs, Dean Wood, Kansas City, for respondent.

BOHLING, Commissioner.

Bernice Michaelson and Bessie Kramer, the daughters of Solomon Jerry (known in the record as Jerry) and Rosa Wolf, instituted this action against Edward J. Wolf, their brother, to recover two-thirds of $40,000 transferred to him by the father by means of a check shortly before the father's death and during his last sickness upon the theory the transfer was without consideration and was not intended as a gift and upon the theory the transfer was the result of undue influence exercised by the defendant over the father. The trial court considered plaintiffs had failed to make a submissible case at the close of all the evidence and directed a verdict for defendant. The record and the briefs are lengthy.

In an action at law upon a motion for a directed verdict, a defendant admits the truth of all testimony, including testimony adduced by defendant, favorable to a plaintiff and all legitimate inferences therefrom favorable to plaintiff. Wright v. Stevens, Mo., 246 S.W.2d 817, 821; Hahn v. Brueseke, 348 Mo. 708, 155 S.W.2d 98, 100[1, 2]; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135, 141[1-8]. A plaintiff's prima facie case is not destroyed by a defendant's rebutting testimony. Johnson v. Chicago & E. I. R. Co., 334 Mo. 22, 30, 64 S.W.2d 674, 677[1-3]; Van Brock v First Nat. Bank, 349 Mo. 425, 161 S.W.2d 258, 262.

Jerry Wolf was a member of the Traders Livestock Exchange at the Kansas City stockyards. He bought, sorted and sold cattle. Abe Wolf, a cousin, and he were partners, the firm being Wolf and Wolf. Defendant went to work for the firm in 1907, and learned the business from the ground up. Abe Wolf retired about 1921. Jerry Wolf made his son an equal partner with him in 1923. In 1928 Lester Metzger became a partner, the firm being known as Wolf and Metzger, and each partner participated on a one-third basis.

Edward J. Wolf was a competent and successful trader. He made virtually all the important decisions of the firm for a number of years. Jerry Wolf gave him credit for the success of the partnership, stating he was going to see that Edward got the business. He transferred two seats on the Traders Exchange, worth $250 to $300 each, to Edward in 1931.

Pat Corcoran and Marie Corcoran, husband and wife did office work and kept the books for Wolf and Metzger. The profit or loss on partnership transactions would be debited or credited from the partnership profit and loss account to each individual partner's ledger sheet in equal shares. An inventory of the cattle was taken practically every week, and whatever interest an individual partner had in the business would be reflected on his ledger sheet if the cattle were worth their book value. Each partner would draw against the firm account for firm and also personal transactions, the personal checks being charged on the partner's ledger sheet. An accountant annually checked the records and adjusted the accounts that each partner ultimately would draw equal amounts.

Pat Corcoran, plaintiffs' witness, testified that Jerry Wolf telephoned on September 26, 1946, and asked him to bring out the small checks, 8 or 9, he had had Mrs. Corcoran make out the day before, and some blank checks for the firm account and for his personal account. Jerry Wolf would give his relatives small checks ($10 to $25) on Jewish holidays. Mr. Corcoran arrived at Jerry Wolf's home, 7432 Tracy, Kansas City, Missouri, between 5 and 6 p. m. Mr. Corcoran went to the bedroom, where Mr. Wolf was sitting on the edge of the bed. Mrs. Wolf was also in the room. In about 20 minutes Edward J. Wolf and Harold Waxman, a lawyer, arrived. Mr. Waxman was the son of Mrs. Wolf's sister.

Jerry Wolf signed the small checks and 'gave them to Ed, his boy, to distribute.' He asked Mr. Corcoran how much was to his credit in his personal account. The witness told him, and Jerry Wolf directed him to make a check for that amount and deposit it so Mrs. Wolf could open an account. Mr. Corcoran then wrote a check for $1,570.90 to Mrs. S. J. Wolf and Jerry Wolf signed it. (Witness later deposited this check to Mrs. Wolf's account.)

Jerry Wolf then said 'Now, I want to make a check for Ed.' Witness asked: 'On what account?' Jerry Wolf said: 'The firm.' Witness asked: 'For how much?' He said: '$40,000.' At that time Jerry Wolf had a personal credit on his ledger sheet of approximately $50,000. Witness said: 'Jerry, I don't think you are leaving enough there to pay your income tax.' Mr. Wolf said: 'Well, Ed and Mamma will take care of that.' A discussion arose as to how to write the check and witness thought Mr. Waxman suggested that, instead of making it to Edward J. Wolf, the check be made payable to Jerry Wolf and that Jerry endorse it to Edward. Mr. Corcoran thereupon wrote a check against the Wolf and Metzger partnership account for $40,000, payable to 'S. J. Wolf,' and on the back of the check 'Pay to the order of Edw. J. Wolf.' Jerry Wolf thereupon signed the check and the endorsement 'S. J. Wolf,' and handed the check to Edward J. Wolf. During the transaction neither Edward J. Wolf nor Rosa Wolf, who were in the room, said anything.

Jerry Wolf never did say what the $40,000 check was for or why he wanted it made out.

The $40,000 check was endorsed by Edward J. Wolf and deposited to his personal credit September 27, 1946.

Jerry Wolf executed a new will immediately follwing the $40,000 check transaction. Jerry Wolf and Rosa Wolf had executed mutual wills in 1920. After providing for the payment of debts and expenses, each gave $100 to each of their three children, and then passed the residue of the estate to the survivor so long as he or she remained single, and in the event of remarriage the survivor held one-half of said residuary estate in trust for the children, share and share alike, and the other half absolutely. Jerry Wolf's new or modernized will provided for the payment of debts and expenses, gave each child $100, and the residue of the estate to Rosa Wolf, and named Edward J. Wolf executor. The change was the omission of the provision respecting remarriage. Mrs. Wolf at that time was 76 or 77 years old. Edward J. Wolf did not say anything during the writing of the new will.

Jerry Wolf was not as active as formerly during the last 4 or 5 years of his life. He came to the office between 9:30 and 10:00 a. m., spent more time in the office, signing checks etc., than in the yards. However, he was in the yards selling cattle within the last year of his life. He was confined to his home and a hospital for the last 6 or 7 months of his life with a heart ailment. He returned to his home from the hospital September 4th, executed the instruments hereinbefore mentioned on September 26th, and returned to the hospital September 28th, where he died November 2, 1946, at the age of 82 years.

Rosa Wolf, after an illness of three weeks, died May 24, 1947.

Edward J. Wolf, as executor, administered the estate of Solomon Jerry Wolf, deceased, as well as the partnership estate, and was finally discharged February 19, 1948. The inventory showed the following assets: Cemetery lots, $250. Clothing, etc., $200. Membership in Traders Exchange, $350. Interest in Wolf and Metzger, $11,728.78. (Total, $12,528.78.) A Federal estate tax return shows real estate held by Mr. and Mrs. Wolf, with right of survivorship in Mrs. Wolf, valued at $17,750 and Mrs. Wolf the beneficiary of $17,000 life insurance. The Probate Court made allowances totaling $3,400 to Mrs. Wolf in December, 1946. Sections 462.450, 462.460 RSMo 1949, V.A.M.S. Jerry Wolf's gross income for 1946 (November 1) was $39,134.65, which was subject to a Federal income tax of $11,582.06. The State income tax was $770.91. A Federal gift tax of $217.50 was assessed. It appears that the executor paid a Federal estate tax of $385.76 and a State inheritance tax of $351.15 on $33,007.58 passing to Edward J. Wolf.

The Federal income tax was paid by Mrs. Wolf using her $3,400 allowance to purchase a cashier's check dated January 15, 1947, payable to the Collector of Internal Revenue, by Edward J. Wolf paying $5,543.63, and by the Jerry Wolf estate paying the balance.

Edward J. Wolf, as administrator with the will annexed, administered the estate of Rosa Wolf, deceased. Each child was entitled to one-third of her estate, her husband having predeceased her. The inventory disclosed: Real estate, $34,481.74. Bank account, $649.28. Furnishings in apartment building, $1,100. Furnishings at 2118 East 70th street terrace, $750. Her estate was fully administered and the administrator discharged September 28, 1948.

The $40,000 check was not reflected in the inventory of either estate.

We summarize some of the testimony.

Virginia Thompson, one of Jerry Wolf's nurses, testified that in October, 1946, he spoke affectionately of his family, mentioning his granddaughter and her mother, Bernice Michaelson, and told her that his children had nothing to worry about, 'he had his family taken care of, they need have no worry.' Gladys C. Stinson, another nurse, testified that just prior to his death his granddaughter talked to him and after she left his last intelligible words were: 'God bless my family.'

Returning home from Mr. Wolf's funeral with Mrs. Michaelson and Edward Wolf, Rosa Wolf remarked that Mr. Wolf had left her a wealthy woman. Defendant said nothing in response to this.

Notwithstanding the testimony of Patrick Corcoran, who was an employee of Wolf and Metzger but a witness for plaintiff, that Jerry Wolf told him his daughters had cost him 'tons of money' and 'Eddy' had not cost him anything, and that,...

To continue reading

Request your trial
18 cases
  • Flynn v. Union Nat. Bank of Springfield, 8220
    • United States
    • Missouri Court of Appeals
    • April 14, 1964
    ...97 Mo. 509, 11 S.W. 239; Moll v. Pollack, 319 Mo. 744, 8 S.W.2d 38, 45; Klaber v. Unity School of Christianity, supra.9 Michaelson v. Wolf, 364 Mo. 356, 261 S.W.2d 918; Ulrich v. Zimmerman, 349 Mo. 772, 163 S.W.2d 567; Horn v. Owens, Mo., 171 S.W.2d 585; Sebree v. Rosen, supra; McCoy v. McC......
  • Gross v. Gross
    • United States
    • Missouri Court of Appeals
    • November 24, 1981
    ... ... donor." Michaelson v. Wolf, 364 Mo. 356, 261 S.W.2d 918, 925(11-14) (1953). The mere proof of a confidential relation is not enough to prove undue influence; there ... ...
  • Washington University v. Catalona
    • United States
    • U.S. District Court — Eastern District of Missouri
    • March 31, 2006
    ...Present donative intent is assessed by determining if a gift was intended at the time of the initial transaction. Michaelson v. Wolf, 364 Mo. 356, 261 S.W.2d 918, 925 (1953). A completed inter vivos gift cannot be revoked by the donor once the gift is delivered and accepted by the donee. Cl......
  • McCormack v. Berking
    • United States
    • Missouri Supreme Court
    • April 9, 1956
    ...356 Mo. 718, 203 S.W.2d 449; Wright v. Stevens, Mo.Sup., 246 S.W.2d 817; Snell v. Seek, 363 Mo. 225, 250 S.W.2d 336; Michaelson v. Wolf, 364 Mo. 356, 261 S.W.2d 918; Blover v. Bruce Mo.Sup., 265 S.W.2d 346; Aaron v. Degnan, Mo.Sup., 272 S.W.2d 216. In this connection defendants say the disp......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT