Roethemeier v. Veith

• Decision Date: 14 March 1934
• Docket Number: No. 31637.,31637.
• Citation: 69 S.W.2d 930
• Parties: ED ROETHEMEIER, CHRIST ROETHEMEIER, HENRY ROETHEMEIER and ANNA VEITH, Appellants, v. JOHN VEITH.
• Court: Missouri Supreme Court

69 S.W.2d 930

ED ROETHEMEIER, CHRIST ROETHEMEIER, HENRY ROETHEMEIER and ANNA VEITH, Appellants, v. JOHN VEITH.

No. 31637.

Supreme Court of Missouri, Division No. 1.

March 14, 1934.

Appeal from Stone Circuit Court. — Hon. Robert L. Gideon, Judge.

REVERSED AND REMANDED.

Rex V. McPherson and Robert Stemmons for appellants.

(1) The Married Woman's Acts provide that personal property shall not be determined to have been reduced to possession by the husband, by his use, occupancy, care or protection thereof, but the same shall remain her express property, unless by the terms of said assent, in writing, full authority having been given by the wife to the husband incumber or otherwise dispose of the same for his own use and benefit. Sec. 3003, Mo. Ann., p. 5064; Orr v. Trust Co., 291 Mo. 383; Brown v. Brown, 27 S.W. 552, 124 Mo. 79; Hurt v. Cook, 151 Mo. 416; McMahan v. Welsh, 132 Mo. App. 593; Case v. Espenschied, 169 Mo. 215; Conqueror Trust Co. v. Craig, 204 Mo. App. 650. (2) It has been held, however, that a married woman can make a parol gift of her personal property to her husband. Murphy v. Wold, 45 S.W. (2d) 1079, 329 Mo. 545; Parker v. Stailey, 21 S.W. (2d) 200. "He who attempts to establish title to property through a gift inter vivos as against the estate of a decedent takes upon himself a heavy burden which he must support by evidence of great probative force, which clearly establishes every element of a valid gift." McCune v. Daniels, 225 S.W. 1020; Newell v. Edom, 242 S.W. 701; Cremer v. May, 8 S.W. (2d) 110; In re Van Fossen, 13 S.W. 1076; Jones v. Falls, 101 Mo. App. 536; Reynolds v. Hanson, 191 S.W. 1030; Tygard v. Falor, 163 Mo. 234. (3) Donee has burden of proving clearly and convincingly that donor delivered the gift intending to part with property therein. Steffen v. Stahl, 273 S.W. 118; McCord's Admr. v. McCord, 77 Mo. 166; Tomlinson v. Ellison, 104 Mo. 105; Foulke v. Hickman, 259 S.W. 496; Jones v. Jones, 201 S.W. 555; Light v. Graham, 199 S.W. 570; Albridge v. Slater, 233 S.W. 8; Doening v. Kenamore, 86 Mo. 590; Newell v. Edom, 242 S.W. 701; Citizens Natl. Bank v. Austin, 168 Mo. App. 254. (4) Evidence of declarations by deceased persons is admissible, but it never amounts to direct proof of the facts claimed to have been admitted by those declarations. This kind of evidence has always been received with great care and when not supported by other evidence, has been entitled to but little weight. Kinney v. Murray, 170 Mo. 706. (5) The mere possession by a person, other than the payee of an unindorsed negotiable instrument not payable to bearer is not prima facie evidence of ownership as between rival claimants. Wade v. Boone, 184 Mo. App. 88; McCune v. Daniels, 251 S.W. 458; Vastine v. Wilding, 45 Mo. 89; Atchley v. Rimmer, 30 A.L.R. 1481. (6) It is now well settled that the declaration of a donor that he had given the property in controversy to the claimant thereof will not perfect a gift incomplete for want of actual delivery and the fact of delivery must be shown by other evidence than the mere declaration of the donor. Atchley v. Rimmer, 30 A.L.R. 1481; Fouts v. Nantz, 55 Okla. 266, L.R.A. 1916E, 283, 155 Pac. 610; Chambers v. McCreery, 106 Fed. 364; Rockwood v. Wiggins, 16 Gray, 402; Yancy v. Field, 85 Va. 756, 8 S.E. 721; Evans v. Liscomb, 31 Ga. 71. (7) Payment is an affirmative defense and the burden of proof is upon him who alleges it. Dorroh v. Wall, 297 S.W. 705; Clines v. Jameson, 277 S.W. 705; Barrett v. Kern. 141 Mo. App. 5; Emery v. Emery, 53 S.W. (2d) 908. (8) John Veith would not be a competent witness to testify to transactions between himself and his deceased wife involving the cause of action or issue on trial. And it was held, Tygard v. Falor, supra, that the filing of the interrogatories in a case of this kind did not act as a waiver of the incompetency as a witness of the person answering the interrogatories. Carmody v. Carmody, 266 Mo. 566; Lohnes v. Baker, 156 Mo. App. 397. Instructions must keep within both the pleadings and the evidence. Telaneous v. Simson, 12 S.W. (2d) 920; Kessler v. Power Co., 221 Mo. App. 644. (9) Instruction which singles out or gives undue prominence of facts is erroneous. Hughes v. Raider, 183 Mo. 630; Echard v. St. Louis Transit Co., 190 Mo. 593 E.C. Medlin and H.A. Gardner for respondent.

(1) The jury having found for respondent, on this appeal he is entitled to the benefit of the most favorable construction of the testimony and inferences to be drawn therefrom. Reynolds v. Henson, 191 S.W. 1031. (2) The testimony presented a jury question on whether or not there was a gift in this case, and this question was properly left to the jury. McCune v. Daniels, 225 S.W. 1022; McBride v. Mercantile Trust Co., 48 S.W. (2d) 927; Martinsburg Bank v. Fenneward, 2 S.W. (2d) 207; Feil v. Wells, 268 S.W. 893; McCune v. Daniels, 251 S.W. 458; Reynolds v. Hanson, 191 S.W. 1030, 199 S.W. 279; Murphy v. Wolfe, 45 S.W. (2d) 1079; In re Van Fossen, 13 S.W. (2d) 1076. (3) The evidence sufficiently showed a delivery in this case. The property was already in the hands of donee and it would have been a useless ceremony for him to have delivered the same back to her for redelivery to him. 12 R.C.L. 946, sec. 23; 28 C.J. 633; Aylor v. Aylor, 184 Mo. App. 612: Gosney v. Costigan, 33 S.W. (2d) 947. (4) The quantum of proof required to establish a gift is not so great where there is a close relation between the parties, such as husband and wife. Jones v. Jones, 201 S.W. 557; Thierry v. Thierry, 249 S.W. 946; Crosetti's Estate, 60 Atl. 1081; In re Kaufmann's Estate, 127 Atl. 133; Northern Trust Co. v. Huber, 118 Atl. 217; In re Yeager's Estate, 117 Atl. 67; Jacobs v. Jolley, 62 N.E. 1032; 28 C.J. 672; Bast v. Bast, 217 Pac. 345. (5) A gift is presumed where the husband acquires possession of the wife's property by her voluntary act or with her knowledge and consent and subsequently uses it as his own. Keller v. Washington, 98 S.E. 881.

HYDE, C.

This action was a proceeding in the probate court against respondent, as administrator of his deceased wife's estate, to compel him to inventory certain property as assets of said estate. Appellants' petition asking for this relief alleged that respondent "wrongfully withholds and conceals, and now has in his possession certain money and property of said estate of the value of eight thousand dollars, which he received from the proceeds of the sale of certain real estate belonging to said deceased, in her own right, and which he has wrongfully converted to his own use." Upon this petition, respondent was cited into the probate court, to answer appellants' written interrogatories. Respondent's answer to these interrogatories asserted his claim of ownership to the property inquired about. There was a jury verdict in the probate court that respondent wrongfully withheld the sum of $8,284 from his deceased wife's estate. Respondent appealed to the circuit court and, upon trial there, the jury returned a verdict for respondent. Appellants have appealed from the judgment entered upon that verdict.

The property about which the controversy arose was the proceeds of the sale of eighty acres of land, which, in 1915, respondent's deceased wife, Emma Veith, inherited from her father. Appellants are her brothers and sister. Respondent and Emma Veith were married in 1910 and had no children. This land was sold in 1921 for $8,000. One thousand dollars was paid in cash at the time of the sale. Respondent in his answers to appellants' interrogatories admitted that he received this money at the time of the sale and he made the following claim to it therein: "$1,000 was to compensate me for the money spent on Emma Veith's farm... . . Returned to me $1,000 money that I had paid out on her farm in improving it." For the balance of the purchase price, the purchasers gave a $4,000 note secured by a deed of trust on the land purchased and a $3,000 note secured by a deed of trust on other land owned by them. Both notes were made payable to Emma Veith five years after date with six per cent interest. The $4,000 note was paid in full during the year it came due. There was paid on the $3,000 note in 1926 $200, in 1927 $200, and in 1928 $1200, leaving a balance due of $1400. There was also paid on each note prior to the death of Emma Veith in 1929 interest in excess of $1200, or a total of more than $2400 interest. Respondent inventoried the note with $1400 balance as belonging to his wife's estate and so stated in his answers to the interrogatories. It was shown, however, by respondent's own evidence that after his wife's death the original $3,000 note was released of record and a new note was made in renewal thereof payable to respondent himself before he was appointed administrator. Respondent's appointment was made ten months after his wife's death, when he was cited by the probate court upon a petition filed by appellants to compel administration.

Respondent claimed a verbal gift from his wife, not of the notes themselves but of all amounts collected upon both notes, prior to her death. These notes were held for safe-keeping, from the time they were made, by the cashier of the bank where both respondent and his wife transacted business, and all payments were made at the bank. This banker testified that he would give a receipt for these payments by signing respondent's name by himself; that the proceeds of all payments of principal and interest were deposited in respondent's name subject to his check; that Emma Veith never told him to do that and never talked to him about it; that the account was handled entirely by respondent; that it remained at all times in his name, and that respondent reloaned the money he thus received to other people. The banker further testified that Emma Veith in 1924 put $100 on time deposit in her own name; that she gradually increased this account each year so that it amounted to $180 at the time of her death;...