Perry v. First Nat. Bank

• Decision Date: 19 February 1934
• Parties: ARTHUR C. PERRY, GUARDIAN, APPELLANT, v. FIRST NATIONAL BANK, ADMR., ETC., RESPONDENT
• Court: Kansas Court of Appeals

68 S.W.2d 927

228 Mo.App. 486

ARTHUR C. PERRY, GUARDIAN, APPELLANT, v. FIRST NATIONAL BANK, ADMR., ETC., RESPONDENT

Court of Appeals of Missouri, Kansas City

February 19, 1934

Appeal from Circuit Court of Jackson County.--Hon. Darius A. Brown Judge.

AFFIRMED.

Judgment affirmed.

Gilmore Brown & Gilmore for appellant.

Cooper Neel, Kemp & Sutherland, and Johnson, Lucas, Landon & Graves for respondent.

CAMPBELL, C. Reynolds, C., concurs.

OPINION

CAMPBELL, C.--

This is an action to recover an alleged debt. The plaintiff's petition alleged that Arthur C. Perry was the guardian of Janet Perry, a minor; that defendant, First National Bank of Kansas City, was a corporation and administrator with the will annexed of the estate of Matt R. Smith, deceased; that said Matt R. Smith died August 25, 1930; that decedent at the time of his death was indebted to Janet Perry in the sum of $ 5000, for which judgment was prayed. The cause was tried to the court, without aid of a jury, and resulted in finding and judgment for the defendant. The plaintiff has appealed.

The facts are: The decedent, Matt R. Smith, in the lifetime of his daughters, Lillian and Lucille, gave to each of his three sons a present in the sum of $ 5000; that plaintiff intended to give but had not given to either of his daughters a like sum; that decedent's daughters died in 1918-1919; that decedent's daughter Lucille was survived by her husband, Arthur C. Perry, and their child, Janet Perry.

Arthur C. Perry testified that in a few days after the death of his wife Mr. Smith said to him "that he owed my wife $ 5000; that my wife's sister died just one week before my wife and her husband was in Kansas City and he said he was going to pay $ 5000 and agreed to give me--he said that he was going to pay Mr. Judson $ 5000, Lillian's wedding present, and 'I want to pay you Lucille's wedding present.' I told him at the time I did not want the money for myself but I wanted it for Janet and accepted the debt for Janet, telling Mr. Smith I wanted him to keep the money and pay Janet interest on it the same as he had the mother. He agreed to this."

"Q. Was that all the conversation the first time? A. No, he said 'all right, I will keep this money and use it as I have been doing and pay the interest to Janet.'"

The witness also said that in a few days after the conversation above stated he was in Mr. Smith's office and that at that time Mr. Smith said: "I am ready to pay you this $ 5000 in cash. I said that I did not want the money myself but would accept it for Janet and asked him to continue using the money, paying the interest to Janet. On this occasion Mr. Smith said to his secretary "get my check book;" that the check book was placed on the desk of Mr. Smith, and that he thereupon said to plaintiff "this is Lucille's wedding gift." Plaintiff does not claim that Mr. Smith wrote or signed a check.

Mr. Smith in a letter written in 1924 stated that he owed his granddaughter, Janet, the sum of $ 5000; and in his will which was dated April 10, 1925, it was recited that he was indebted to his granddaughter "in the sum of $ 5000 as is evidenced in a certain writing heretofore made and should said sum of $ 5000 not be paid to my granddaughter during my life time, then I declare the same to be a lien upon my estate and to be paid as the payments of the legacies herein provided for." The debt mentioned in the letter and in the will was the debt which Mr. Perry "accepted" for his daughter Janet.

The plaintiff contends that the evidence shows that Matt R. Smith made a present of the sum of $...