Newell v. Edom

• Decision Date: 06 June 1922
• Docket Number: No. 17157.,17157.
• Parties: NEWELL, Public Administrator, v. EDOM.
• Court: Missouri Court of Appeals

242 S.W. 701

NEWELL, Public Administrator, v. EDOM.

No. 17157.

St. Louis Court of Appeals. Missouri.

June 6, 1922.

Appeal from St. Louis Circuit Court; Kart Kimmel, Judge.

"Not to be officially published,"

Action by James P. Newell, Public Administrator of the City of St. Louis, and as such in charge of the estate of Lizzie Page, deceased, against William Edom. After judgment in the probate court for defendant, plaintiff appealed to the circuit court, where in a trial de novo defendant had judgment, from which plaintiff appeals. Reversed and remanded, with directions.

Peter T. Barrett, of St. Louis, for appellant.

Robert E. Collins, of St. Louis, for respondent.

BIOS, C.

As public administrator in charge of the estate of Lizzie Page, deceased, plaintiff instituted this proceeding in the probate court of the city of St. Louis against the defendant to recover assets belonging to said estate; the same being filed under the provisions of section 62 et seq. of the Revised Statutes of 1919. After filing the affidavit referred to in section 62 of the statute, which charged that the defendant is wrongfully withholding assets of the estate, and the issuance of a citation thereunder, defendant appeared, denied the allegations of rue affidavit, was orally examined in the probate court, and thereafter the public administrator, in accordance with section 63 of the statute, filed interrogatories, which were thereafter answered in writing by the defendant. The issue arising upon the interrogatories and the answers thereto was tried by a jury in the probate court, which resulted in a verdict and judgment for the defendant. On appeal to the circuit court a trial de novo was had with the same result. Following the usual preliminaries the plaintiff administrator has appealed here.

The principal interrogatory upon which the issues were founded is as follows:

"Interrogatory 9. Upon her death (meaning Lizzie Page) or prior thereto, did you take possession of or come into possession of her estate? If so, state just what that estate consisted of, describing all evidences of debt, mortgage, deeds of trust, cash on hand, jewelry, diamonds or any other property, real or personal, of which the deceased died possessed."

The defendant in his answer to this interrogatory stated that on April 6, 1917, the deceased, Lizzie Page, sent for him, and that he called upon her at the City Hospital in the city of St. Louis, where she was confined to her bed afflicted with paralysis and cancer of the womb, and that he had been informed that she was in an incurable condition; that she said to him in effect that she was not going to get well and wanted him to hove all of her property; that she then called the nurse and directed the nurse to procure and bring her the key to her trunk, which she handed to defendant, and told him to go to the storage warehouse where her trunk was stored, open it, and take out her two deeds of trust and the notes which they secured, one being a note and deed of trust for $700, and the other for $2,000, and to keep them, and that when she died these two deeds of trust with their notes arid everything else she had were his; that he took the key to the trunk and secured the deeds of trust mentioned; that Lizzie Page told him that the notes were not indorsed, and on account of her arm being paralyzed she could not write her name, and directed him to indorse her name on the notes; that in accordance with said direction he wrote her name on the back of each note and wrote under her name the words "by William Edom"; that he thereafter showed her the indorsements and she said it was all right; that he retained all the notes and deeds of trust in his personal possession; that he afterwards collected some of the interest notes covered by the deeds of trust, also the $700 principal note, and deposited the money in bank to his personal credit and kept it so deposited until after the death of Lizzie Page, and then used it for his own personal purposes; that after the death of Lizzie Page the defendant took possession of her trunk, and found it contained nothing but old clothing and some plated jewelry, which were of no value.

Under a proceeding of this character the interrogatories and answers thereto constitute the pleadings in the cause and make up the issues to be tried. Such interrogatories and answers are not to be considered as evidence in the case except in so far as they contain admissions against the interests of the parties. Tygard v. Falor, 163 Mo. 234, 63 S. W. 672; Carmody v. Carmody, 266 Mo. loc. cit. 565, 181 S. W. 1148.

Defendant's answers to the interrogatories, having admitted that he had possession of assets that had belonged to Lizzie Page, which he claimed were given him by the deceased, amounted to a confession and avoidance, and therefore the burden was on the defendant to establish such a gift. Tygard v. Falor, supra. As appears from the record, defendant assumed such burden.

The vital question presented by the appeal is whether the evidence as preserved in the record is sufficient to establish such gift. Strict proof is required in this class of cases. In Foley v. Harrison, 233 Mo. 430, 136 S. W. 354, the rule is stated thus:

"Evidence to establish a gift mortis causa must be of clear and unequivocal probative force and must convince the judicial mind of its truthfulness beyond a reasonable...