"George Schutz, the testator, was twice married. By his first marriage he had three children, Leopold Schutz, Joseph Schutz, and William Schutz. Two of these were living at the time of his death. By his last wife, Krasensa Schutz, he had five children, four daughters, viz. Mrs. Paul Finn, Mrs. Louisa Stamm, Mrs. Joe Dorner, and Mrs. Henry Stark, and one son, Phillip Schutz, the defendant, all of whom resided and now reside in Carroll county, except Mrs. Finn, who has lived during the last few years in or near St. Joseph, Mo.
"After the death of her husband, Krasensa Schutz continued to reside on the home place. Shortly afterward, and in the fall of 1893, a granddaughter, a child of Mrs. Henry Stark, was born in this home and continued to live with Mrs. Krasensa Schutz until she was 15 years of age, leaving in the year 1908. After the granddaughter had left the home, Krasensa Schutz lived alone until the year 1919, when she was adjudged of unsound mind by the probate court, and Joseph Dorner appointed her guardian. She then resided a short time with Mrs. Finn on her farm in Stokes Mound township, and with the defendant, Phillip Schutz. She was living with the defendant at the time of her death in 1923. During the period of 15 years, from 1893 until 1908, Mrs. Krasensa Schutz and her granddaughter constituted the household, except for two brief periods when others of no kin to the family stayed there.
"Phillip Schutz, at the date of his father's
death, resided on a farm about two miles from the home place of his father. He was married and had two children, George, born in the year 1894, and Elsie, born about the year 1899. The evidence shows that, for 3frac12; years after the death of said George Schutz, Henry Stark, his son-in-law, lived on the `home place' and farmed the same. The testimony further shows that the defendant, Phillip Schutz, went into the possession of the 80 acres near the home place shortly after his father's death and farmed the same continuously until the year 1919, when the possession thereof was delivered to Joe Dorner, as guardian of Krasensa Schutz. As to the home place, the testimony shows that Phillip Schutz likewise farmed this land, or rented same out, after Henry Stark moved off the same until said year of 1919, when he likewise delivered possession of the same to Joe Dorner as her guardian. The evidence further discloses that some time after the death of said George Schutz the said Krasensa Schutz entered into an oral understanding or agreement with her son, Phillip Schutz, the substance of which was that she would turn over to the said Phillip Schutz the home place and the 80 acres nearby, in all of which land she owned a life estate, and that her said son should receive all the rents and profits therefrom, and in return therefor should support her during her lifetime. The exact time of this understanding is not disclosed in the evidence. Phillip Schutz testified that he thought he took charge of the land about 10 years after his father's death, under this agreement, while further testimony is to the effect that the agreement was entered into only a short time after the death of the said George Schutz. At any rate the testimony discloses that Phillip Schutz either farmed this land and received all the income therefrom, or rented it out and received the rents therefrom from the time he took charge of the same until the year 1919, when his mother was adjudged of unsound mind. From the year 1919 until the death of Krasensa Schutz, in 1923. Joseph Dorner, her guardian, rented this land and received the rents therefrom as such guardian. As to the 80 acres in Stokes Mound township, the evidence shows that an arrangement was made by Krasensa Schutz with her daughter Mrs. Paul Finn that Mrs. Finn have the income from this land during the lifetime of Krasensa Schutz by paying the taxes thereon and paying to Mrs. Schutz annually the sum of $76. There is no dispute that these payments were regularly made. Phillip Schutz provided for the support of his mother, but her other children, the daughters, also provided for her. The fact that Phillip Schutz lived nearby and was farming the land probably accounts for the fact that he provided more for her support than the others. However, there is no evidence that all of the children of Mrs. Krasensa Schutz did not perform in this regard their duty to their mother. Mrs. Krasensa Schutz also raised chickens and sold chickens and eggs, thereby contributing to her own support and the support of her granddaughter living with her. At the time of the death of her said husband, Krasensa Schutz was past 60 years of age, but, notwithstanding her advanced age, enjoyed good health until the year 1919. The evidence discloses that she needed the care of a physician on only two occasions, for brief periods. For these services, the defendant paid.
"The evidence discloses that Krasensa Schutz did business with but one bank, the First National Bank of Carrollton. On the 2d day of January, 1895, prior to the time she received the money from the estate of her said husband, she had a balance in said bank of $333. On the 12th of the same month she deposited $18; on the 7th of December, 1895, Phillip Schutz made a check payable to her for $280, and on the 23d of the same month she deposited this amount; on the 6th day of February, 1897, Phillip Schutz gave a check payable to her for $280, and on the same day this amount was deposited for her by Phillip Schutz; and on the 12th day of September, 1900, Phillip Schutz gave her a check payable to her for $1,000 and on the next day she deposited this amount. This is all the money which she deposited in any bank. The bank account further discloses that, at the time Krasensa Schutz deposited the $1,000 paid to her by her said son, she had no balance in the bank. Prior to that time she had to her credit $911, and she had checked out this entire amount, she having checked out $282.64 of said amount to her said son, Phillip Schutz. Beginning on the 13th day of September, 1900, the day the $1,000 was deposited, and continuing until the 13th day of April, 1903, Phillip Schutz received of this $1,000 deposited the sum of $800. No other checks were drawn on the account during this time. Of this amount checks signed by Krasensa Schutz and payable to Phillip Schutz amounted to the total of $368.75, and cashier's receipts, on which Phillip Schutz obtained the money and which were signed by Phillip Schutz as agent for his mother, amounted to $431.25. Defendant does not claim that he received any of this $800 in payment of any legacy that he was entitled to at the date of the death of his mother, as provided by item fifth of the will of George Schutz; in fact, the only explanation which the defendant gave of the receipt of any sums of money from his mother was that she was probably repaying him for money that he expended on her. Two checks, one for $50 and the other for $96, were drawn on this account in the First National Bank, the last one on November 26, 1908, leaving a balance in said account of $54, which still stands to the credit of Krasensa Schutz. * * * He further testified that his mother demanded cash, and that he got it and took it to her at her home on the farm, and that no one was present when the payments were made; that he did not know where he got the cash, but that he traded a good deal and might have secured it in trading; that his mother kept money hid about the house, but he didn't know where. No one ever saw this amount of money around the home of Krasensa Schutz. There is no record of the six payments of $500 each being deposited in any bank, and the record is as silent as a tomb as to what disposition Mrs. Krasensa Schutz made of this money, if she received it. The granddaughter who lived with Mrs. Schutz all the time after her husband's death until the year 1908, and the fairness of whose testimony no one could question, testified that her grandmother kept only small amounts about the house, and that these she kept in a...
