Siela v. Kneib

• Decision Date: 01 April 1915
• Docket Number: No. 16957.,16957.
• Citation: 176 S.W. 1052
• Parties: SIELA et al. v. KNEIB et al.
• Court: Missouri Supreme Court

176 S.W. 1052

SIELA et al. v. KNEIB et al.

No. 16957.

Supreme Court of Missouri, Division No. 1.

April 1, 1915.

Rehearing Denied April 12, 1915.

Motion to Transfer to Court in Banc Denied June 1, 1915.

Appeal from Circuit Court, Buchanan County; Wm. D. Rush, Judge.

Action by John P. Siela and another against Paul W. Kneib and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

This suit was instituted March 28, 1911. Its purpose is to cancel and set aside as fraudulent two sheriff's deeds purporting to convey 140 acres of land in Buchanan county to defendant Perry A. Brubaker, made in pursuance of an execution sale upon a final judgment of the Buchanan county circuit court for costs, entered April 2, 1910, in a suit in which these plaintiffs, who are children and heirs and devisees of John Paul Siela, were plaintiffs, and the executor, widow and all the other heirs and devisees of said Siela were defendants, to contest the will of said Siela. Also to set aside two deeds from Brubaker to the said Paul W. and Frank Kneib. The sheriff's deeds were dated, respectively, June 1, 1910, and December 15, 1910. The last dated purported to be made in correction of the other. The Brubaker deeds are dated, respectively, September 3, 1910, and January 3, 1911; the latter being merely supplemental to the corrected sheriff's deed. The consideration named in the first Brubaker deed, and actually paid at the date of its delivery, was $300. The plaintiffs are children of the testator, John Paul Siela, by a first wife. The defendant heirs in the will contest were children by a second wife, Elizabeth Siela, also a defendant, and a defendant in this suit. The executor, Henry T. Miller, is a brother of Elizabeth Siela. The sheriff's deed recites' a consideration of $155 and conveys not only the interest of plaintiffs in the 140-acre tract in question, but also in 80 acres constituting the Siela homestead, in which the plaintiffs claim no interest. All was sold together, upon a single bid. The 80 acres was quitclaimed by Mr. Brubaker to Mrs. Siela. The cost taxed in the execution was $221.25. There was then in the hands of the executor $100 belonging to the plaintiffs as legatees under the Siela will. Before selling the land the sheriff garnished this sum upon his execution, and Mr. Miller paid $91.15 of it over to him. August 12th Mr. Brubaker, as attorney for Mr. Miller, the executor, appeared in the probate court, and filed a motion for the distribution of these legacies, which was immediately taken up without notice to the plaintiffs, and sustained. The question arose upon the examination of Mr. Miller as a witness, why he did not turn over the entire $100 to the sheriff in answer to the garnishment. The defendants' attorney, said:

"Excuse me, your honor. Of course this gentleman would be entitled to commission and other things, and of course, not being a lawyer, I don't know whether he knows."

After the order of distribution of August 12th, Mr. Miller went to the law office of Mr. Brubaker, and the latter wrote for him to sign the following checks, receipts, and letters of advice transmitting the same, which were signed and sent by registered mail to the respective addresses indicated.

                  "St. Joseph, Mo., August 15, 1910. No.—
                

"The German-American National Bank: Pay to the order of Emma Elizabeth Baumer $4.43 —four and forty-three one-hundredths dollars— in full $50.00 bequest.

                                  "Henry T. Miller, Executor
                                         "August 15, 1910
                

"Received from Henry T. Miller, Executor of John Paul Siela estate, fifty and no one-hundredth dollars—$4.43 by check attached and $45.57 paid under garnishment in case of Siela et al. v. Siela et al.—in full of $50.00 bequest in will of John Paul Siela, deceased. $50.00.

                             "Clarksdale, Mo., August 15, 1910
                

"Mrs. Emma Elizabeth Baumer, No. 3520 Messanie St., City—Dear Madam: As executor of the estate of John Paul Siela, deceased, I am under his will obliged to pay you fifty dollars as a bequest. As you know, you were plaintiff in a suit against a number of your half sisters and brothers, and are aware that the costs were taxed against you. After a judgment was rendered, an execution was issued, and I was garnished by the sheriff of Buchanan county, and was by legal process compelled to pay $45.57 out of your fifty dollar bequest under the will. This sum I paid to the sheriff, and it is credited to you as part of my payment to you of the fifty dollars. I herewith inclose you my check for $4.43 to pay you in full for the balance of the fifty dollars due you under the will of John Paul Siela, deceased. Please sign the receipt attached to the check and oblige.

                  "Hoping this is satisfactory to you, I remain
                     "Yours very truly, Henry T. Miller
                        "Executor of the Estate of John Paul
                           Siela, Deceased.
                 "St. Joseph, Mo., August 15, 1910. No. —.
                

"The German-American National Bank: Pay to the order of John Paul Siela $4.53—four and 58/loo dollars—in full of $50 bequest.

                                       "Henry T. Miller, Executor.
                                                "August 15, 1910.
                

"Received from Henry T. Miller, executor of John Paul Siela estate, fifty and no/100 dollars —$4.43 by check attached and $45.57 paid under garnishment in case of Siela et al. v. Siela et al.—in full of $50 bequest in will of John Paul Siela, deceased. $50.00.

                       "Clarksdale, Missouri, August 15, 1910.
                

"Mr. John Paul Siela, Spangle, Wash.—Dear Sir: As executor of the estate of John Paul Siela, deceased, I am under his will obliged to pay you fifty dollars as a bequest. As you know, you were plaintiff in a suit against a number of your brothers and sisters to break your father's will, and are aware that the costs were taxed against you. After the judgment was rendered, an execution was issued, and I was garnished by the sheriff of Buchanan county, and was by legal process compelled to pay $45.57 out of your fifty dollar bequest under the will. This sum I paid the sheriff, and it is credited to you as part of my payment to you of the fifty dollars, The payment of the above aura leaves a balance of $4.43 due you under the will from me as executor, and I herewith inclose you my check for $4.53—$4.43 as the balance due and $.10 as exchange. Please sign the receipt attached to the check and oblige me.

                   "Hoping this is satisfactory to you, I remain,
                      "Yours very truly, Henry T. Miller,
                         "Executor of the Estate of John Paul
                            Siela, Deceased."
                

The letter to Mr. Siela brought an answer, which was not produced, although called for, to which Mr. Miller replied by letter written by Mr. Brubaker as follows:

                    "St. Joseph, Mo., September 2, 1910.
                

"John Paul Siela, Spangle, Wash.—Dear Sir: Your letter of August 28th received in reply to my letter inclosing you check of four dollars and forty-three cents in full of any claim you might have against the estate of John Paul Siela, deceased. You ask me to oblige you by sending a statement of the whole amount of the costs. I cannot do this, as I never had such a statement, and do not know just how much the costs were. All I can tell you is that the sheriff "of Buchanan county, Missouri, Otto Theisen, served a notice of garnishment on me, and made a levy on the fifty dollars due from the estate of John Paul Siela, deceased, to the extent of $45.57. To save myself trouble and costs, as I owed you that sum, and the sum of $4.53 additional, I paid the "money to him, and took his receipt therefor. The same sum was levied against the sum of fifty dollars due Mrs. Emma Elizabeth Baumer, and I paid on her claim the same sum. The sum of $4.43 is the total amount due you from the estate of John Paul Siela, deceased, and I hope you will sign the receipt I inclose you and return to me.

                    "Awaiting an early reply, I remain,
                       "Yours very truly, Henry T. Miller."
                

The plaintiffs and their half-brother and half-sisters were each entitled, under the will, to an undivided one-eighth of the 140-acre tract of land in question, to begin at the majority of their youngest half-sister, Clara, on April 26, 1912. This and two...