Peper v. Peper

• Decision Date: 21 March 1912
• Citation: Peper v. Peper, 145 S.W. 408, 241 Mo. 260 (Mo. 1912)
• Parties: CAROLINE J. PEPER, Appellant, v. ADOLPHUS S. PEPER et al
• Court: Missouri Supreme Court

145 S.W. 408

241 Mo. 260

CAROLINE J. PEPER, Appellant, v. ADOLPHUS S. PEPER et al

Supreme Court of Missouri, Second Division

March 21, 1912

Appeal from St. Louis City Circuit Court -- Hon. D. G. Taylor Judge.

Affirmed.

Jones Jones, Hocker & Davis for appellant.

Joseph S. Laurie for respondents.

KENNISH J. Ferriss, P. J., and Brown, J., concur.

OPINION

KENNISH, J.

This is an appeal from an order of the circuit court of the city of St. Louis, sustaining a motion for a new trial.The action was brought under section 650,Revised Statutes 1899, for the purpose of having the title of the parties to the suit ascertained and adjudged in and to the real estate described in the petition.Plaintiff is the daughter of Christian Peoper, deceased, spoken of in the testimony as Captain Peper, and the defendants are the two sons and a daughter of the said Captain Peper, also the husband of the daughter defendant, and the wife of one of said sons.

The real estate in controversy is residence property in said city of St. Louis, particularly described in the petition, and of the value of about forty-two thousand dollars.

It is alleged in the petition, in short, that plaintiff is the equitable owner of the property described; that the said Christian Peper in his lifetime promised to buy a lot of ground in said city and improve it by building a suitable residence thereon and to give the same to plaintiff; that in the year 1898 the said Christian Peper did buy the lot described, built a residence thereon and gave the said lot and improvements to plaintiff; that plaintiff did then and there accept said property and entered into possession of the same and has retained possession thereof, adversely to every other person, until the institution of this suit, but that said Christian Peper died without having made a deed to plaintiff to said property.It is further alleged that in consideration for said property, plaintiff and her daughter were to entertain said Christian Peper by performing on the piano and by providing a place where he could visit and dine with plaintiff and her family daily; that these conditions were fully performed by plaintiff, and that plaintiff improved and beautified said lot with flowers, and fruit and ornamental trees, upon the faith of said gift, etc.The prayer is that the right, title and interest of the parties to the suit be ascertained and adjudged by the decree and judgment of the court.

The answer contains as defenses a general denial, a defense of the Statute of Frauds, and an affirmative defense alleging title to said property in Christian Peper at the time of his death; that said Christian Peper devised said property by his last will and testament to the partiesplaintiff and defendant; and prays the court to adjudge the title of said parties thereto, in accordance with the provisions of said will; that having ascertained the title and interest of the parties, the court will order and decree partition and sale of the property, and that the proceeds be divided between the parties according to their respective interests, after deducting from plaintiff's share such sum as may be due from her as rent for the use and occupancy of said premises.

The reply was a general denial.

Plaintiff introduced evidence to prove these facts: Captain Peper was a very wealthy tobacco manufacturer, engaged in business in the city of St. Louis.He had long made his home in the outskirts of the city with his daughter, Mrs. Bell.His other daughter, the plaintiff, was a widow with two children, and for many years before his decease he had supported her and her family.Plaintiff lived nearer the business portion of the city than Mrs. Bell, and Captain Peper was in the habit of going from his place of business to plaintiff's home for his noonday lunch and remaining there for some time thereafter, listening to music and being entertained by the plaintiff and her daughter.In the year 1898he suggested the purchase of a lot upon which to build a home for plaintiff.The latter selected the lot.A house was built thereon and furnished, all of which was paid for by the father.There was also testimony tending to prove that Captain Peper made statements to the effect that he was building a house for the plaintiff; that he was going to build a house for plaintiff and then he was going to build a house for his other daughter, Mrs. Bell; that he had built the house where his daughter lived and had given it to her.There was much testimony as to statements of the character of the foregoing.

On cross-examination the following facts were brought out: That as long as Captain Peper lived he had the property in controversy assessed in his own name and paid the taxes thereon, and that for several years after his decease such taxes were paid out of his estate.The legal title to the property was in Captain Peper at the time of his death, and when he made his will in August, 1903, being about two months before his decease, after a number of special bequests, it was provided in item six of the will that: "All the rest, residue and remainder of my property of which I may die possessed of, and not hereinbefore disposed of, I will, bequeath and devise to my beneficiaries in Item III of this will absolutely, in the following proportions, to-wit," etc.Much of his real estate was devised in this clause of the will, and the defendants claim the property in suit was included.It was not specifically described in the will.

The inventory of Captain Peper's estate was made by his son, Frederick C. Peper, his executor, and the property claimed by the plaintiff in this suit was inventoried as a part of the estate.The said son Frederick, who made his home with plaintiff, paid rent to the estate on this property for several months after his father's decease.

Defendants introduced no testimony, and the court found in favor of plaintiff and entered a judgment and decree investing plaintiff with the absolute fee simple title to the property.Defendants filed a motion for a new trial, containing, among others, the following grounds, namely: "(1) The judgment on plaintiff's cause...