"It is somewhat difficult to determine whether plaintiff's petition is a suit to recover possession of a promissory note alleged to have been taken by defendant and converted to his own use, or whether it is a suit to recover the amount due on said note, with the other facts alleged to show why the note sued on was not filed with the petition. In view of the fact that the petition prays for judgment for the amount of the note, with interest, and that the issue tried by both sides was whether the note was paid, we might regard it as a suit on the note. However, it need not be decided here what the suit is.
"Plaintiff is the stepfather of defendant. The latter's mother, by her first husband, had four children, and by her last husband, the plaintiff, she had two; but only one of these survived her, the other dying without issue. Prior to May 24, 1904, Mrs. Parsons owned a 40-acre
farm of unimproved brush land. On that day she and her husband deeded said land to the defendant, reserving the right to the possession of said land as long as they desired to live thereon, together with the rents and profits thereof during their occupancy; and if the husband, W. W. Parsons, should survive his wife, he was not to have any further interest in or right to the possession of said land. Said deed recited a consideration of $1,036, and on the same day defendant executed a mortgage on the land, securing a note to Mrs. Parsons for $750, due in five years, with 4 per cent. interest, representing the unpaid purchase price of said land. On January 6, 1912, this note was taken up and a new note given, but this time it was for $500, due five years after date, bearing 6 per cent. compound interest per annum from date until paid. This note was not secured, no mortgage being given therefor, and the old mortgage being released of record on January 8, 1912. It is this $500 note that is involved herein.
"From the time said $500 note was given, up to Mrs. Parsons' death on April 7, 1913, she kept it in her trunk. Upon the arrival of defendant at his mother's home, after her death and before her burial, this note was turned over to him by plaintiff's daughter, defendant's half-sister, in the presence of plaintiff, who made no objection. Defendant says it was turned over to him voluntarily and without request on his part, but his half-sister, who was plaintiff's witness, testified that he demanded the note, and when he received it he said, `part of this note belongs to you folks.'
"Plaintiff, as widower, under section 10, R.S. Mo. 1909, obtained an order from the probate judge, in vacation, dispensing with administration on his wife's estate on the ground that she left no property greater in amount than that allowed by law to the widower as his absolute property, and authorizing said widower to sue for, collect, and retain said property. No order of the probate court approving this vacation order was obtained. After getting said vacation order, said widower brought this suit, either to collect said note or for its conversion, as hereinabove stated.
"The evidence in plaintiff's behalf tended to show that, at the time the $750 note was taken up and the $500 note given in lieu thereof, the agreement between defendant and his mother was that he should reserve $250 to pay for her funeral expenses, and would, after that, pay the $500 note by giving to each of her five children the sum of $100.
"Defendant's claim is that the agreement was that he was to furnish money for her support from time to time as she might need it, and upon her death he was to take her body back to her old home in Iowa and bury it by the side of her first husband, pay all funeral expenses and erect a monument for both, all out of the $500 note; that from time to time he sent her money to live on, and upon her death he took her body back to Iowa and there buried it, paid all funeral expenses and erected a monument at an expense of $110, and that in this way the $500 note was paid in full.
"While there was evidence tending to show that defendant did send money to his mother at various times, yet it is not clear when this was done. For aught that appears, a large portion of these amounts may have been sent to her before the $500 note was given, and this may have been the reason why the note was reduced from $750 to $500; said payments accounting for the $250 difference. Defendant's mother lived only a little over a year after the $500 note was given, and it is not at all clear that the small sums sent from time to time, during that period, or indeed at any time, amounted to $500. Indeed, it would seem that they did not, since it is shown by the evidence offered in defendant's behalf that after all such payments for his mother's support and for her funeral and monument had been made, he paid one of his mother's heirs, his full sister, $100 as her part of the note. It is difficult to see why he should have made such distribution to his mother's heir, if the amounts he had paid out had equaled said note, as he now claims. In addition to this, his half-sister testified that he told her he owed her $100 but would not pay it, as she owed that much rent on the place since his mother died. He admitted telling her he owed her $100, but was not allowed to give the entire conversation.
"Defendant first filed an answer in which he set up that he had paid his mother's funeral bills, at plaintiff's request, amounting to $114.50, and that plaintiff owed defendant $100 as rent for the place he had occupied since his wife's death; but defendant afterwards filed an amended answer, setting up that by supporting his mother and paying her funeral bills and $110 for a monument he had paid said note. The original answer was offered in evidence by plaintiff, but was excluded by the court. We think it should have been admitted for whatever it was worth as an admission.
"Whatever was still due on the note at Mrs. Parsons' death would pass to her legal representative the moment one was appointed, and, if the appointment of one was legally dispensed with, then said note became the absolute property of her husband as widower. It could not be given away by her, or willed away, nor taken by her creditors. Section 120, R. S. Mo. 1909; Glenn v. Gunn, 88 Mo. App. 442; Nelson v. Troll, 173 Mo. App. 51, 156 S. W. 16. Doubtless, if plaintiff stood by and allowed defendant to pay out money for funeral expenses and for a monument upon the idea that such agreement with his mother was valid, plaintiff would be estopped. But there was no plea of estoppel in this case, nor does it appear that plaintiff knew or consented that defendant should expend money for a monument.
"While defendant may have been a competent witness to deny conversations testified to by plaintiff's witnesses as having occurred after Mrs. Parsons' death (Weiermueller v. Scullin, 203 Mo. 466, 101 S. W. 1088), still he was not a competent witness to deny that a conversation took place between him and his mother, wherein the agreement was that he was to pay the funeral expenses out of the $250, which represented the difference between the $750 note and the $500 note. That was testifying in regard to the contract between him and his mother. It was the contract in issue and on trial, and the opposite party to that contract was dead. Plaintiff had from the first objected to his competency, and, upon his denial of such conversation, moved to strike out the evidence as incompetent, but the objection was overruled, and exceptions were saved.
"It is apparent from the foregoing that appellant is entitled to a reversal and remanding of the case, unless a contention made by the defendant
which we have not mentioned until now, must be upheld.
"That contention is that the mere order of the probate judge, made in vacation, and without any order of the court approving or confirming it, is wholly insufficient to dispense with administration and vest title to the note in plaintiff as Mrs. Parsons' widower. Consequently, defendant says that neither plaintiff's petition nor his evidence shows any cause of action in him. This contention is based upon the claim that section 10, R. S. Mo. 1909, which authorizes the probate judge in vacation to make such order, is to that extent unconstitutional, in that it is in conflict with sections 1 and 34 of article 6 of the Constitution. This claim of unconstitutionality was asserted from the first, being clearly and specifically set up in the answer filed, and preserved throughout the case.
"We are therefore unable to decide the case without either ignoring this point or else passing upon it one way or the other. The jurisdiction to decide the constitutionality of the section, however, lies with the Supreme Court,...
