Morley v. Prendiville

• Citation: 295 S.W. 563
• Decision Date: 09 April 1927
• Docket Number: No. 25871.,25871.
• Parties: MORLEY v. PRENDIVILLE.
• Court: Missouri Supreme Court

295 S.W. 563

MORLEY v. PRENDIVILLE.

No. 25871.

Supreme Court of Missouri, Division No. 2.

April 9, 1927.

Appeal from St. Louis Circuit Court; C. O. Pearcy, Judge.

Proceedings in probate court by Mary Morley, residuary legatee of the estate of Jeremiah Prendiville, deceased, against Catherine Prendiville to discover assets belonging to the estate. Citation against defendant was dismissed by the probate court, and on appeal to the circuit court judgment was rendered for defendant, and plaintiff appeals. Affirmed.

Wilbur Schwartz and John P. Leahy, both of St. Louis, for appellant.

Igoe, Carroll, Higgs & Keefe, of St. Louis, for respondent.

WALKER, J.

This is a suit arising out of a proceeding to discover assets of an estate, under article 2, c. IL S. 1919. The plaintiff, as the residuary legatee of the state of Jeremiah Prendiville, deceased, filed an affidavit in the probate court of the city of St. Louis, alleging that the defendant had concealed and appropriated to her own use certain Liberty bonds belonging to said estate, and asking that the defendant be cited to appear before the court to answer such questions as may be propounded to her touching her possession and retention of said bonds and for further relief. Upon being cited and apjearing before the court for examination, the defendant denied the allegations of the affidavit. Whereupon the court ordered that written interrogatories be filed and that the defendant answer the same in writing. The executor of the estate then filed formal interrogatories. The gist of these interrogatories was to inquire if the defendant had in her possession any United States bonds which belonged at any time to the deceased, their numbers, nature, and description, the conditions under which she obtained them; what, if anything, she paid for them; where the same were desposited when she obtained them, and the circumstances connected with her acquiring them; what, if any, conversation occurred between herself and the deceased after she acquired the possession, and who was present; what was the condition of the health of the deceased at the time.

The defendant answered that she had certain bonds in her possession in which the deceased at one time had an interest, which was a joint one with the defendant. She enumerated and described the bonds; stated where they were kept before she became the sole owner of the same and thereafter; and the circumstances in detail under which she became the sole owner; that she paid nothing for the bonds. In addition and at great length she stated the facts under which the deceased gave her the bonds and all of the facts and circumstances connected therewith. That at the time the bonds were given to her by the deceased, who was her uncle, he was in good health, but had been ill several months prior thereto.

The executor replied to said answers, denying specifically each of the same, and stating with unusual prolixity much matter of an evidentiary nature which cannot be properly classified as a reply to the answer. The case was tried in the probate court without the intervention of a jury, and an order of dismissal was entered. The plaintiff thereupon applied for and was granted an appeal to the circuit court where a trial was had before a jury, which found that the defendant was not wrongfully concealing or withholding any property from the estate of the deceased. It was thereupon ordered by the court that the application of the plaintiff. Mary Morley, legatee under the will of Jeremiah Prendiville, deceased, for citation to Catherine Prendiville, the defendant, be dismissed, and that she be discharged from the citation and go hence without day and recover her costs, to be paid out of said estate, and that a copy of this judgment with the original files be certified to the probate court. Thereafter, in conformity with the required procedure, the case was appealed to this court.

Jeremiah Prendiville, deceased, whose estate is involved in this controversy, was for many years a dealer in meat in the Union Market, in the city of St. Louis. He was unmarried and at the time of his death, which occurred in November, 1921, he was 69 years of age. For two months preceding his death he had resided at the home of the mother of the defendant, in the city of St. Louis. The mother was a sister-in-law of the deceased, and the defendant, his niece. The testimony of the latter was substantially as follows: In June, 1911, she went with her uncle, the deceased, to the Mercantile Trust Company and he rented a safe deposit box for their joint use and each of them signed a card for the same. Her uncle put about $20,000 worth of deeds of trust, together with the notes attached thereto, in the box. Subsequently she went with him at different times to the trust company and continued to do so until December, 1920, the year before his death. When he put the notes and deeds of trust in the box taken by him and her jointly, he told her that in the event of his death the notes and deeds would be hers. At different times thereafter, when a note would become due, he would ask her what disposition she desired made of the money arising therefrom. In this connection Liberty bonds were spoken of, and he said he was loyal to his country and for himself he would not buy bonds, but that he would buy them for her if she desired. As the notes secured by deeds of trust became due and were paid, he would invest the proceeds in Liberty bonds and place them in the box held by them jointly. The bonds thus purchased aggregated $19,100 and are the bonds in this suit.

In June, 1921, at his request, she again went with him to the trust company. Thereafter while he was ill in a hospital, he suggested that upon his recovery they go to the trust company. He told her that he wanted her to go with him, as he wanted to give her the bonds and turn the box over to her. When he recovered, they went to the trust company, and while there they took the bonds out of the joint box, which `they surrendered. He turned the bonds over to her, and at his suggestion she rented a box in her own name and deposited the bonds in it. When he gave her the bonds, he said:

"Now these are yours to do as you please with, but as a suggestion, I think it would be a good investment to take the money and build flats with it on the lot adjoining your home."

He further said:

"You can ask Mr. Kamp [a real estate agent]. I have always found him a good adviser in real estate matters and is now. * * C But you ask him and see what he thinks about it."

After June 7, 1921, when the bonds were delivered to the defendant, he never again had possession of them. Thereafter the possession of them by the defendant was continuous, and she collected the interest coupons thereon as they became due. Her uncle died November 23, 1921, and during the last two months of his life he was cared for by her mother and herself. When ill on previous occasions he had been cared for in the hospital, but had been discharged therefrom in September, 1921. He was not ill when he gave the bonds to the defendant, June 7, 1921, but had been attending to his business at the Union Market. This constitutes, in the main, the direct testimony of the defendant. Her cross-examination is principally in regard to her former testimony for the purpose of impeachment. The variance in her testimony from that on former hearings was explained to the satisfaction of the jury or was not deemed material.

Records of the trust company were introduced corroborative of her testimony in regard to the rental of the joint and separate boxes. Kamp, the real estate agent, testified to conversations with the deceased in which the latter said he wanted Catherine, the defendant, to have the bonds, and that he intended to give them to her. Subsequently he told the witness that he had turned the bonds over to her and that she had them in her own box.

The executor's testimony on behalf of the plaintiff was principally in regard to the condition of the health of the deceased while he was in the hospital and that the defendant had told him, the witness, that she had the bonds and thought her uncle had given them to her.

The plaintiff testified in regard to the social relations sustained by the deceased to the different members of his family; the effect of which was to show that his relations to her own immediate family were friendly, but that they were not so towards the family of the defendant. The hospital record of the condition of the deceased up to September preceding his death was introduced in evidence, showing that he was at times irrational during his illness. No evidence was offered to show a like condition at the time the evidence discloses he gave the bonds to the defendant.

If necessary to a determination of the matter at issue, any relevant facts not set forth in the foregoing statement will be discussed in the opinion.

I. The competency of the defendant as a witness is challenged on the ground that the other party to the transaction is dead. This question received considerate attention in Trautmann v. Trautmann, 300 Mo. 314, 254 S. W. 286, in an opinion by Ragland, J., in which, while conceding the application of the rule generally, held that the same might be waived. In the Trautmann Case, as at bar, the proceeding was to discover assets; the plaintiff was a distributee, and the defendant was charged with wrongfully withholding certain personal property belonging to the estate. There, as here, the defendant was offered as a witness, and her testimony was objected to for the reason that she was incompetent because the other party to the transaction was dead. The defendant claimed that this objection had been waived, and in support of this contention offered a transcript of her testimony given by her in the probate court prior to the filing of the interrogatories. The circuit court held that there had been no waiver and sustained the objection to the offer...