Newell v. Kern

• Decision Date: 03 February 1920
• Docket Number: No. 15855.,15855.
• Citation: 218 S.W. 443
• Parties: NEWELL, Public Administrator, v. KERN.
• Court: Missouri Court of Appeals

218 S.W. 443

NEWELL, Public Administrator, v. KERN.

No. 15855.

St. Louis Court of Appeals. Missouri.

Argued and Submitted January 9, 1920.

Opinion Filed February 3, 1920.

Rehearing Denied February 19, 1920.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

"Not to be officially published."

Proceeding by James P. Newell, Public Administrator, in charge of the estate of Mary A. Kern, deceased, against John J. Kern. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Heideman, of St. Louis, for appellant.

Seebert G. Jones and Foster H. Brown, both of St. Louis, for respondent.

REYNOLDS, P. J.

This is a proceeding under section 70, Revised Statutes 1909, by the administrator of the estate of Mary A. Kern, for the discovery of assets, as it is commonly called. Citation was duly issued and interrogatories filed, to which the defendant, John J. Kern, filed his answer, denying, generally and specifically, that he had any property belonging to the estate of deceased in his hands; admits that the administrator made a demand on him for whatever property belonging to the estate of Mary A. Kern that had come into his hands in 1902, but avers that he did not refuse to deliver to the administrator any such property, contending that the administrator had no legal right to the possession or control of any personal property found after the demise of Mary A. Kern, which, presumably, had been in her possession during her lifetime, because, first, whatever that property consisted of was not owned by her but was derived from property given to her in trust for her children, including respondent, by the last will and testament of respondent's grandfather, the father of Mrs. Mary A. Kern; and, secondly, that the personal property or proceeds thereof had long since been distributed among all the parties entitled thereto, that is to say, her children, including the respondent, and her husband, and that there were no debts of Mary A. Kern, deceased, to pay, no debts due her to be collected, at the time of her death and at no time since her death, and no property, money, papers, or other estate to be injured, wasted or lost and it was unnecessary to administer on her alleged estate.

On a trial of the cause before the Probate Court that court ordered respondent to pay over and deliver to the administrator the sum of $219.47, and that defendant pay the costs. On an appeal to the circuit court and a trial there, a jury being waived, the court found against the defendant in the sum of $219.41, principal, and interest on it at the rate of 6 per cent. from August 1, 1912, interest amounting to $62.53, a total of $281.91, for which judgment was entered and from which judgment defendant John J. Kern has duly appealed.

The proceeding appears to have been instituted January 4, 1916, that appearing to be the date when the affidavit of the administrator, charging defendant with concealment of assets, was filed. Mrs. Mary A. Kern died October 23, 1911. There was evidence to the effect that the balance of the estate of Mrs. Kern was of the net value of $5,988.26, which was divided among two sisters, a brother Gustavus, and defendant, John J. Kern, each party receiving a fourth, and each of the parties contributing $100, which was put in bank for account of George Kern upon his release from the penitentiary where he was confined. There is no complaint made that the judgment is erroneous in amount, if there should be any judgment at all, save as to the amount of interest, the right to which, but not the amount thereof, being disputed by the appellant. It is to be assumed that the interest was calculated from the date upon which it was in evidence that the money, assets, etc., came into the hands of the defendant, assuming correct action on the part of the trial court, in the absence of anything to the contrary appearing.

The administrator of Mrs. Mary A. Kern's estate was not appointed until November 18th, 1915, when, on petition of George Kern, her son, on January 4, 1916, the estate was ordered into the hands of the public administrator, who, as such, then took charge and instituted this proceeding.

It is practically conceded by all parties that at the time the four children of Mrs. Mary Kern made distribution of her estate among themselves, the total value was $6690.26, and consisted of money, stocks, bonds, and notes, with no debts and no outstanding claims, and that an administrator was not then necessary. The gravamen of this present action proceeds on the theory that George Kern, one of the five heirs, had not received his proper proportion of his mother's estate. The administrator brought this proceeding to recover from John J. Kern about one-fifth of the share John had received; that is one-fourth of the whole net estate, that is to say one-fifth of $1497.06. The property of which Mrs. Mary A. Kern died possessed came to her under the provisions of the will of her father, Clemenz Zimmerman. That will, probated February 11, 1875, in the Probate Court of the city of St. Louis, after law, providing for the payment of his debts and funeral expenses, proceeds:

"I give and bequeath all my personal estate to my beloved wife, Catharine Zimmerman, to use and dispose of the same, for her own benefit and support during her lifetime, she, my said beloved wife, Catharine, shall also, for her own use and support, receive the proceeds of the rents and leases of my real estate until her death, when the balance of my personal property, as well as the proceeds of rents and leases of my real estate, shall pass to my daughter, Maria Anna Zimmerman, or be applied and used for the education of her child or children if she should have any. The houses on my real estate shall be kept in good order and repair, and may be rebuilt if necessary.

"All my real estate I give and bequeath to the child or children of my said daughter Maria Anna, if she should have any. Should my said daughter Maria Anna have no children or issue, then, after her death, my real estate shall pass to my legal heirs.

"None of my real estate shall be sold until the youngest child of my said daughter Maria Anna is twenty-one years of age, and in case she should have no child or children, then my said real estate should not be sold during the lifetime of my said daughter, Maria Anna."

His wife was appointed executrix.

On the death of her mother, Catharine, the daughter, later Mrs. Mary Anna Kern, appears to have received the personalty. Whether there...