Petersen's Estate, In re, 45389

• Decision Date: 12 November 1956
• Docket Number: No. 45389,No. 2,45389,2
• Citation: 295 S.W.2d 144
• Parties: In the Matter of the ESTATE of Theodore O. PETERSEN, Deceased. Anna L. PETERSEN, Executrix, Respondent, v. Raymond O. PETERSEN, Appellant
• Court: Missouri Supreme Court

Page 144

295 S.W.2d 144

In the Matter of the ESTATE of Theodore O. PETERSEN, Deceased.

Anna L. PETERSEN, Executrix, Respondent, v. Raymond O. PETERSEN, Appellant.

No. 45389.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1956.

Edward C. Schneider, Harry A. Frank, St. Louis, for appellant.

Ralph R. Giessow, Clayton, for respondent.

EAGER, Presiding Judge.

Anna L. Petersen, as Executrix of the Estate of her husband, Theodore O. Petersen, instituted a proceeding for the discovery of assets against Paymond O. Petersen, the only son of the decedent, under Sections 462.400 to 462.440, RSMo 1949, V.A.M.S. The interrogatories, as filed, involved a note in the face amount of $8,000 secured by a deed of trust on certain real estate, and also certain corporate stocks; at the hearing in the probate court counsel for the executrix waived her claims to the corporate stocks. In his answers to the interrogatories Raymond O. Petersen admitted possession of the note and deed of trust and claimed title thereto by virtue of an alleged gift from his father in May, 1952. The parties will be referred to as plaintiff and defendant. Since the interrogatories and the answers thereto settle the issues, In re Estes' Estate, Mo., 166 S.W.2d 1061; White v. Fitzgerald, Mo.App., 263 S.W.2d 454, the ultimate question here simply is: was there or was there not a gift inter vivos of this note and deed of trust from the father to his son? Following a trial in the probate court, an appeal was taken and the circuit court heard the case de novo without a jury. On December 28, 1955, it entered judgment in favor of the Estate, found generally that the defendant was wrongfully withholding the principal note, three unpaid interest notes, the deed of trust, and the accompanying insurance policies, and ordered delivery to plaintiff forthwith. Motion for new trial was overruled and this appeal was duly taken.

In this proceeding the property rights of the parties are determined, and the action is one at law. State ex rel. North St. Louis Trust Co. v. Wolfe, 343 Mo. 580, 122 S.W.2d 909; Davis v. Johnson, 332 Mo. 417, 58 S.W.2d 746; In re Main's Estate, 236 Mo.App. 88, 152 S.W.2d 696. At this point we recite the substance of the evidence, but in more or less chronological order, rather than in the order of its introduction. Theodore O. Peterson and his brother, Adolph, had for years operated a planing mill in St. Louis, incorporated under the name of Petersen Planing Mill Company. Theodore was President, Adolph was Secretary-Treasurer, and Raymond was an employee, his title being foreman. Theodore had been in failing health for some years, and he was not particularly active in the business for the last several years of his life, but he continued to come to the office almost every day. Theodore and Adolph were also stockholders and directors of A. J. Meyer and Company, a corporation engaged in the real estate and loan business in St. Louis; they and Meyer, who was President and Manager of that company, owned all the stock except one qualifying share held by Hazel M. Stadler, the secretary. On or about September 1, 1950, Raymond O. Petersen bought for investment an apartment building or flat at 3452-54 Montana Avenue in St. Louis, making the purchase through the Meyer Company. He paid part cash and borrowed the balance of $8,000 from that company, executing, with his wife, the principal and interest notes here in question and securing them by an appropriate deed of trust, duly recorded. These are the instruments which are directly involved here. The principal note was dated September 1, 1950, and was payable in 36 months to the order of 'H. M. Stadler'; the six interest notes were payable on March 1st and September 1st of each year, each being in the amount of $160. All of these notes were endorsed in blank without recourse by the payee. The notes, deed of trust, certificate of title and the insurance policy were placed in a loan envelope bearing, in longhand, notations of the details of the transaction. On January 18, 1951, this loan was sold to one Letter and the papers were delivered to him. On December 3, 1951, the Meyer Company repurchased the loan, and on the same date sold it to Theodore O. Petersen, taking his check for $8,082.67; no further endorsements of the notes were made by anyone. The loan papers were delivered to Petersen by Meyer at the planing mill office. Pursuant to its routine practice the Meyer Company, on February 11, 1952, and August 11, 1952, sent to 'Mr. and Mrs. Theo. Petersen, 3985 Wilmington Avenue,' notices that on March 1, 1952, and September 1, 1952, respectively, interest notes would be due, and that if the note in question was presented at its office collection would be made without charge. On April 4, 1952, Theodore Petersen brought in the first interest note and it was paid out of a rental account which the company was handling for the makers. The interest note due September 1, 1952, was not presented, and so far as Meyer knew, was never paid.

Defendant's claim of a gift is based largely upon the testimony of Adolph Petersen his uncle. He testified: that 'shortly after income tax * * * about May 1952' he saw his brother Theodore produce an envelope from his pocket and give it to Paymond saying, 'Here, Ray, I want to give you this'; that Raymond pulled the contents out and 'mashed them' back in the envelope, and said: 'Thanks. This $8,000 will help me a lot'; that there was no other conversation whatever; that the witness never saw the papers before or after; when asked if he saw any writing on the outside of the envelope the witness stated: 'All I could tell you was Montana.' He further testified: that he personally saw none of deceased's papers in the office safe after his death, and that he knew nothing of the whereabouts of his will, corporate stocks, or any loan papers at the time of his death; that deceased owned 99 shares of the capital stock of the planing mill, and that on May 5, 1948, he signed a new certificate for the same number of shares in the names of deceased and his son jointly, with right of survivorship; and that Mr. Schneider (apparently the company attorney) was then present. Over objection, the witness also testified that he had, since Theodore's death, sold his own planing mill stock to Raymond, who was then President of the company.

Anna L. Petersen, the widow, testified that she was deceased's second wife, that she married him in 1918 when Raymond was only eight years old, and that he continued to live with them until he was twenty-four; she further testified: that Mr. Petersen died on December 29, 1952; that on the day after his funeral, January 3, 1953, Raymond came to her home for some of the floral cards; at that time he asked her about some 'AT & T' stock which he said he 'had an interest in'; she apparently knew little or nothing about this, but in the same conversation she asked Raymond about the '$8,000 Montana Avenue transaction,' and he said that 'he knew nothing of it.' There was no further conversation, and Raymond never came to her home after that, nor did he communicate with her. Mrs. Petersen found the interest notices at home with some bonds, the latter of which she turned over to Raymond or his attorney. This witness had been cautioned that she should testify to nothing which occurred prior to the death; this may have been responsible, in part, for some asserted confusion in her testimony; be that as it may, she apparently testified that the first time she saw the interest notices was after the death (although the questions and intervening comments of court and counsel are in themselves somewhat confusing) and that she probably first saw the deed of trust in the probate court. She testified that she did not have the will of the decedent and that the first she knew of it was when she was notified that it had been filed in the probate court.

Mrs. Petersen's brother, George E. Schlemmer formerly of St. Louis and then District Manager of an insurance company in Poplar Bluff, testified: that he frequently visited the Petersens during the period in question, probably two or three times a week; that Mr. Peterson was 'a pretty sick man' for four or five years prior to his death, and that he grew worse from about August, 1952; he, the witness, had been taking Petersen to the doctor; that on Mr. Petersen's birthday, August 29, 1952, he was at their home; on this occasion the witness brought up again the idea that Mr. Petersen should get away on a short trip, perhaps to Excelsior Springs; at this Mr. Petersen smiled, and replied that when 'Raymond and Anne' paid the $160 interest note which was due, he could use that money for the trip. The witness very frankly admitted that he knew that Mr. Petersen did not really need that money for the trip. He further testified: that his sister showed him the interest notice of August, 1952, on this occasion; that the notice was all he then saw, but that, as he recalled, he had previously seen the note or deed of trust at one time and they had discussed it, at which time Mr. Petersen had said that 'he wanted to protect his wife, that that $8,000.00 would be her money.'

A record card of the Meyer Company was offered in evidence and this has been discussed in both briefs. It contained sundry loan data and showed the loan 'sold to' Mr. and Mrs. Letter on January 18, 1951; their names and address were marked out in pencil and the names of 'Mr. or Mrs. Theo. O. Petersen, 3985 Wilmington Avenue' inserted (above), with the date '12/31/51'; then the address '3985 Wilmington Avenue' had been ruled out in pencil, and above the names 'Mr. or Mrs. Theo. O. Petersen' appears 'c/o Petersen Planing Mill,' while slightly lower appears '2800 Lyon St' (the address of the planing mill, and presumably the business addresses of both Mr. Petersen and his son). In handwriting at about the center of the card appears 'no control take out of file 11-25-52.'...