Owens' Estate v. Owens

• Decision Date: 16 June 1937
• Docket Number: No. 5800.,5800.
• Citation: 107 S.W.2d 150
• Parties: OWENS' ESTATE v. OWENS.
• Court: Missouri Court of Appeals

107 S.W.2d 150

OWENS' ESTATE v. OWENS.

No. 5800.

Springfield Court of Appeals. Missouri.

June 16, 1937.

Rehearing Denied July 8, 1937.

Appeal from Circuit Court, Pemiscot County; John E. Duncan, Judge.

"Not to be published in State Reports."

Action by Wyley L. Davis, administrator of the estate of D. L. Owens, deceased, against John R. Owens to discover assets of the estate. Judgment for plaintiff, and defendant appeals.

Affirmed.

Corbett & Peal, of Caruthersville, for appellant.

Ward & Reeves, Von Mayes, and N. C. Hawkins, all of Caruthersville, for respondent.

ALLEN, Presiding Judge.

This is an action commenced by Wyley L. Davis, administrator of the estate of D. L. Owens, deceased, by filing his affidavit to discover assets in the probate court, which affidavit was as follows:

"Wyley L. Davis, Administrator of the Estate of D. L. Owens, deceased, being duly sworn upon his oath states that he has good cause to believe and does believe that John R. Owens has at the County of Pemiscot and State of Missouri, wrongfully withheld and concealed and now has in his possession or under his control, certain goods and chattels of the said D. L. Owens, deceased, to-wit: 1 bedstead, springs and mattress; 2 quilts, 1 blanket, 2 pillows; 2 portiers; 1 lunch cloth, 1 vanity dresser set; 1 library table; 1 vanity dresser; 1 dark bay mare mule; 1 black mare mule; 1 3-inch combination wagon; 1 set plow harness; 1 double shovel; 1 lot baled hay, soy beans, timothy and alfalfa; 1 turning plow points, 2 long handle shovels; 3 cotton hoes; 1 double tree; 15 sacks cotton seed; 1 scoop, 1 hay fork; 1 cant hook, 1 double ax; 150 bushels corn in crib; 1 black horse mule; 2 fattening hogs; 1 brinley lister; 1 small A harrow; 1 Avery Cultivator; 1 12-16 disk; 3 rolls net wire.

"Wherefore, affiant prays that the aforesaid John R. Owens may be cited and compelled to appear before this court and answer under oath such questions as may be propounded to him concerning the ownership, concealment and possession of said effects."

Upon the filing of the foregoing affidavit, a citation was issued and served upon the defendant, appellant herein.

Thereafter, at the February Term, 1936, of the probate court, the administrator of the estate of D. L. Owens, deceased filed the following interrogatories to be answered by John R. Owens, defendant:

"(1). Upon the death, or prior thereto, of D. L. Owens, did you take possession of, or come into possession of, any of his Estate or property, which belonged to him at any time prior to his death? If so, state just what that estate consisted of, describing all evidence of debt, cash on hand, household furniture and furnishings, bonds, stocks, goods, chattels and other personal property.

"(2). Have you now, or had you at any time prior to the death of said D. L. Owens, possession of, or control of, or sold the same and converted the proceeds thereof to your own use, or appropriated the same for your own use and benefit, the following described goods and chattels, to-wit (Here the interrogatory set out all the items listed in the affidavit hereinbefore set out, and we will not list them again.)

"(3). If you claim any of the property described in interrogatory No. 2 as your own, do you claim to have acquired the same from said D. L. Owens, deceased? If so, state when and where and under what circumstances you acquired each of the items mentioned in said interrogatory No. 2.

"(4). If you claim to be the owner of all, or any part of the goods and chattels described in interrogatory No. 2, and do not claim to have acquired the same from D. L. Owens, then state from whom and under what circumstances you acquired each of items mentioned in interrogatory No. 2.

"(5). Did D. L. Owens, deceased, at any time prior to his death own any part of the goods and chattels described in interrogatory No. 2? If so, state when and under what circumstances he parted with the title thereto, and to whom."

Afterwards, at the May term, 1932, of the probate court, John R. Owens filed his answer to the interrogatories of Wyley L. Davis, administrator, as follows:

"1. His answer to interrogatory No. 1 is fully answered in his answer to interrogatory No. 2.

"2. Answering interrogatory No. 2 herein, the said John R. Owens says that he was in possession of one bedstead, springs and mattress, two quilts, one blanket, two pillows, two portiers, one lunch cloth, one vanity dresser set, one library table, one vanity dresser, and that the above is all the property he had in his possession belonging to said D. L. Owens at the time of his death as set forth in said interrogatory No. 2, and further answering said interrogatory as to the above said property of the widow of the said D. L. Owens, deceased. Further answering said interrogatory, that the property described, in said interrogatory as one double shovel, two long handle shovels, one double tree and 12 by 16 disc were never the property of D. L. Owens, but were and are the property of M. C. Owens, which said property the said John R. Owens borrowed during the crop season of 1931 from M. C. Owens; that the property described as one lot of baled hay, timothy and soy beans and fifteen sacks of cotton seed and 150 bushels of corn in crib never was the property of D. L. Owens but is the property of the said John R. Owens, all being grown by him during the year 1931, except the cotton seed which he bought in the fall of 1931, from the Pinkley Richardson Gin Co., of Wardell, Mo.; that the property described as one black horse mule is the property of one Mr. Wells which said mule was at the death of the said D. L. Owens being pastured by the said John R. Owens, for said Wells; that the property described as one A-harrow is the property of the McGinley Land Company, and was never the property of D. L. Owens; that the property described as three rolls of net wire is the property of the estate of D. L. Owens; that the property described as two fattening hogs was the property of the said John R. Owens and the widow of D. L. Owens, the same being two hogs turned over by D. L. Owens when small to be cared for and fattened by John R. Owens on the halves and that the said John R. Owens has offered to turn one of said hogs over to said widow and also to said administrator and still offers to do. Further answering said interrogatory, the said John R. Owens says that all other property described in said interrogatory was once the property of D. L. Owens but was purchased by the said John R. Owens from the said D. L. Owens in the latter part of 1930 or early spring of 1931, and that at the date of the death of said D. L. Owens and long prior thereto the said John R. Owens was in possession of said property, using and claiming it as his own, and traded off one of the mules he originally purchased from D. L. Owens for one of the mules described in interrogatory No. 2, long prior to the death of D. L. Owens.

"Further answering the said John R. Owens says that his answer to interrogatory fully answers interrogatories 3, 4 and 5 herein submitted.

"Wherefore, having fully answered the interrogatories herein, the said John R. Owens prays that he be dismissed with his costs."

Afterwards, at the May term, 1932, of the probate court the cause, on the interrogatories and answer thereto, was submitted to a jury, who returned a verdict for the plaintiff.

Defendant filed his affidavit and bond for appeal to the circuit court of Pemiscot county, and the cause was tried before a jury, which jury returned a verdict for the plaintiff as follows:

"We, the jury in the above entitled cause, find the issues herein in favor of the estate of D. L. Owens and further find that at the time of the institution of this proceeding the following described property belonged to the estate of D. L. Owens, to-wit: 1 dark bay mare mule, 1 black mare mule, 1 3-inch combination wagon, 1 set plow harness, 1 lot baled hay, soy beans, timothy and alfalfa, 1 turning plow, 1 lot plow points, 2 long handle shovels, 3 cotton hoes, 1 double tree, 1 cant hook, 1 double ax, 1 brinley lister, 1 small A-harrow, 1 Avery cultivator, 1 12-16 disc, 3 rolls net wire.

"And we further find that said property was and still is wrongfully withheld and concealed by the defendant, John R. Owens, in Pemiscot County, Missouri."

Defendant filed his motion for a new trial, which was overruled, and the cause comes to this court on appeal by defendant.

It will be noted that the affidavit of the administrator in this case referred to and listed one bay mare mule, one black mare mule, and one black horse mule. These mules were also listed in the interrogatories, and John R. Owens claimed that the black horse mule belonged to a Mr. Wells (which evidently was a Mr. Welch). Mr. Robert Welch testified on behalf of defendant and claimed that he did trade with John R. for a "one eyed mule," but does not designate it as a "black horse mule." The verdict, however, only includes one bay mare mule and one black mare mule.

John R. Owens stated in his answer to the interrogatories that he was in possession of one bedstead, springs, and mattress, two quilts, one blanket, two pillows, two portiers, one lunch cloth, one vanity dresser set, one library table, one vanity dresser, and that they belonged to D. L. Owens at the time of his death. It was shown by the evidence that these articles were turned over to Mrs. D. L. Owens before the trial of the cause, and they are not included in the verdict and judgment in this case. Further, in the answer to the interrogatories, John R. Owens stated that the property described as one double shovel, two long handle shovels, one double tree, and 12x16 disc were never the property of D. L. Owens, but were the property of M. C. Owens. M. C. Owens testified at the trial of this cause, but these articles were not mentioned or referred to in any way. John R. Owens claimed all the other articles mentioned in the affidavit,...