Roberts v. Roberts
| Decision Date | 16 February 1927 |
| Docket Number | 25378 |
| Parties | ROBERTS et al v. ROBERTS |
| Court | Missouri Supreme Court |
John C Nipp, of Kansas City, for appellants.
James H. Hull, of Platte City, for respondent.
Appellants, who were plaintiffs below, stood on two counts of their petition, one to construe the will of respondent's deceased husband, C. P. Roberts, who was also their brother the other to determine title to two pieces of real estate located in the town of Edgerton, Platte county, Mo., of which testator is alleged to have died seized. The testator devised a certain other twoacre tract of land to his wife, who was executrix of his will, and died intestate as to the remainder of his estate. He left no surviving child or children, and the parties hereto are his widow and sole surviving heirs at law.
Defendant stood on her amended answer, admitting probate of the will, her appointment as executrix, and the identity and relationship of plaintiffs and defendant to deceased, but denying that testator owned any lands at the time of his death except the tract described and devised to defendant in his will. The amended answer further alleges that C. P. Roberts purchased the two tracts described in the second count of plaintiff's petition (neither of said tracts being described or referred to in testator's will) with defendant's money, 'and that he wrongfully and without her knowledge took the title in his own name, that the entire purchase price of both of said tracts of land was paid by the said C. P. Roberts with the separate property, money of the defendant, and without her assent authorizing him to do so being manifested in writing, which said money was the accumulation of rents from and sale of lands of her separate estate which she had received from her father's estate,' and prays that the legal title so acquired in the name of C. P. Roberts be divested therefrom and vested in defendant. Plaintiffs' reply was a general denial.
The case was tried without a jury, resulting in a finding and judgment for defendant as to tract of land conveyed by W. H. Rollins and wife to C. P. Roberts by deed dated January 5, 1921, and for plaintiffs as to the other tract of land in question, from which finding and judgment plaintiffs have appealed.
Plaintiffs' case in chief consisted of documentary evidence as follows: General warranty deeds conveying the two tracts of land in question to C. P. Roberts; last will and testament of C. P. Roberts, deceased; report of appraiser appointed by the probate judge to appraise the estate of said deceased, fixing the value of the two tracts of land in question at $ 1,000 and $ 75, respectively, and the two-acre tract mentioned in the will at $ 1,200; the inventory, appraisement, and affidavit filed in the administration of the estate of said deceased, describing the two tracts in question; the additional inventory describing the two-acre tract mentioned in the will: oath of the executrix; service of notice of widow's right of election; widow's application for letters of administration; order for executrix to take charge of the real estate described in the will; final settlement of executrix of the estate of said deceased showing distribution of balance on hand to above appellants in equal parts; notice of granting of letters testamentary and publication thereof; and semiannual settlement of Annie M. Roberts, executrix of the estate of said deceased.
Defendant, to sustain the issues arising on her part, introduced a number of witnesses, and several persons, including plaintiffs themselves, testified in rebuttal. We shall hereafter refer to the evidence as occasion may require.
Appellants first urge that:
'The testimony of witnesses Laura E. Hughes, Edward Moore, and J. C. Jones was incompetent as to statements made to them by the deceased in the absence of plaintiffs.'
Some authorities are cited to the effect that testimony of verbal admissions of persons, since dead, is entitled to small weight, and vague, doubtful, loose statements of deceased are insufficient to establish a resulting trust, but none of them strike at the competency of the testimony given by the witnesses above named. Its weight and sufficiency are to be considered along with other evidence in the case, but we have no doubt as to its competency, and this objection is overruled.
Appellants next say that if the deceased had in his possession any rents or moneys from the sale of his wife's separate property it was so intermingled with deceased's money that it was inseparable; that there is no evidence tending to show the amount of defendant's money, if any, invested in the property in question; that the evidence fails to show that defendant's separate money was invested in said property; and for these reasons no resulting trust should have been declared therein.
The evidence discloses that about the year 1886 respondent became the owner of approximately 103 acres of land, acquired in part by inheritance from her father, and in part by purchase from her brothers and sisters. Her husband, C. P. Roberts borrowed $ 300 to help her finish paying for this land, and this was the extent of his financial interest therein. Later her husband purchased adjoining land to the extent of 75 or 80 acres, and thereafter the two tracts were operated as one farm, the husband and wife making their home thereon until 1901, from which time until the sale thereof in 1920 it was rented, the husband, C. P. Roberts, without his wife's written consent, collecting all the rents from the entire acreage without ever paying any part to his wife or making any accounting to her therefor. Testimony as to the average yearly rental value of the entire acreage during this period ranged from $ 5 to $ 7 an acre, and from a cash lump sum of $ 650 for the year 1904 to $ 1,897 for the year 1918, supplemented by testimony as to actual returns and the fair rental value of the 103 acres belonging to respondent and its rental value and actual returns as compared with the 75 or 80 acres owned by the husband. The trial judge's finding that the rents from respondent's land during the entire rent period amounted to $ 9,000 seems to be amply supported by the evidence. The...
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