Stein v. Mercantile Home Bank & Trust Co.

• Decision Date: 13 March 1941
• Docket Number: 37223
• Parties: Albert Stein and Charlotte Anne Stein, by her next friend, Ruby Stein, Plaintiffs, Respondents, v. Mercantile Home Bank & Trust Company, a Corporation, Executor of the Estate of Emil Pinkert, Appellant, Fred Stein, William Stein, Minnie Stein, Emil Gottschalk, Max Gottschalk, Anna Lochman, and Anna Lochman, Executrix of the Estate of Emil Pinkert, Defendants, Respondents
• Court: Missouri Supreme Court

148 S.W.2d 570

347 Mo. 732

Albert Stein and Charlotte Anne Stein, by her next friend, Ruby Stein, Plaintiffs, Respondents, v. Mercantile Home Bank & Trust Company, a Corporation, Executor of the Estate of Emil Pinkert, Appellant, Fred Stein, William Stein, Minnie Stein, Emil Gottschalk, Max Gottschalk, Anna Lochman, and Anna Lochman, Executrix of the Estate of Emil Pinkert, Defendants, Respondents

No. 37223

Supreme Court of Missouri

March 13, 1941

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

Harvey E. Hartz for Mercantile Home Bank & Trust Co., executor of Emil Pinkert's estate.

(1) The court erred in rendering judgment herein establishing and declaring in favor of plaintiffs and defendants, William Stein, Fred Stein, Minnie Stein, Emil Gottschalk and Anna Lochman, a gift and trust in the bonds and money in question for the reason that there was no clear, cogent and convincing evidence tending to establish such gift and trust beyond all reasonable doubt of its truthfulness; the finding and judgment of the court should have been for this defendant-executor, Mercantile Home Bank & Trust Company ordering the return of said bonds and money to the Pinkert estate. Northrip v. Burge, 255 Mo. 641, 164 S.W 584; Foley v. Harrison, 233 Mo. 460, 136 S.W. 354; Harding v. St. Louis Union Trust Co., 276 Mo. 136, 207 S.W. 68; Coon v. Stanley, 94 S.W.2d 98; Morley v. Prendiville, 316 Mo. 1094, 295 S.W. 563; Rosenwald v. Middlebrook, 188 Mo. 58, 86 S.W. 200; Crowley v. Crowley, 131 Mo.App. 178, 110 S.W. 1100. "The general rule requiring gifts inter vivos to be established by conclusive evidence is especially applicable, where such gifts are not ascertained until after the death of the alleged donor, and gifts thus preferred after death of the alleged donor are regarded with suspicion by the court." In re Franz's Estate, 344 Mo. 520, 127 S.W.2d 404; Pitts v. Weakley, 155 Mo. 109, 55 S.W. 1055; Jones v. Falls, 101 Mo.App. 536, 73 S.W. 903; Reynolds v. Hanson, 191 S.W. 1030. This being an equitable action, this court will examine the entire record and render such decree as the evidence warrants. Kinney v. Murray, 170 Mo. 707, 71 S.W. 197; Russell v. Sharp, 192 Mo. 291; Blattel v. Stallings, 142 S.W.2d 11. (2) The court erred in excluding competent, relevant and material evidence offered by this defendant-executor, and particularly in excluding this defendant's Exhibit 4, being a memorandum in the deceased's handwriting and found on the inside of the cover of his checkbook after his death, stating that there was on January 27, 1939, $ 4000 in cash in his safe, which included the $ 3900 claimed by plaintiffs. This evidence showed that no gift was made to Albert Stein as claimed. (3) The court erred in admitting incompetent evidence offered by plaintiffs, and the defendants, Fred Stein, William Stein, Minnie Stein, Anna Lochman and Emil Gottschalk, over the objections of this defendant-executor, in that the trial court permitted Albert Stein, and the defendants, Minnie Stein, Anna Lochman, Emil Gottschalk and Fred Stein, to testify to transactions, conversations and things occurring prior to the probating of the will of Emil Pinkert, deceased, and the appointment of the executors herein. Sec. 1723, R. S. 1929; Kersey v. O'Day, 173 Mo. 560, 73 S.W. 481; Norton v. Lynds, 24 S.W.2d 183; Doyle v. Doyle, 88 S.W.2d 391. (a) This court having jurisdiction of the subject-matter and of the parties will try the entire controversy and do full, adequate and complete justice between the parties. Donovan v. Dunning, 69 Mo. 436; Woolum v. Tarpley, 196 S.W. 1129; Jelly v. Lamar, 145 S.W. 801; Real Estate Saving Inst. v. Collonious, 63 Mo. 295; Frazier v. Crook, 204 S.W. 394; Bobb v. Bobb, 76 Mo. 423.

John C. Nipp for plaintiffs.

(1) The court did not err in rendering judgment herein establishing and declaring in favor of plaintiffs and defendants, William Stein, Fred Stein, Minnie Stein, Emil Gottschalk and Anna Lochman a gift and trust in the bonds and money in question for the reason that there was clear, cogent and convincing evidence tending to establish such gift and trust beyond all reasonable doubt. The judgment of the court is for the right party. (2) The court did not err in excluding competent, relevant and material evidence offered by the defendant executor and particularly in excluding said defendant's Exhibit 4. Coombs v. Coombs, 86 Mo. 173. (3) The court did not err in admitting incompetent evidence offered by plaintiffs and the defendants, Fred Stein, William Stein, Minnie Stein, Anna Lochman and Emil Gottschalk, over the objections of the defendant executor, by permitting Albert Stein and the defendants, Minnie Stein, Anna Lochman, Emil Gottschalk and Fred Stein to testify to transactions, conversations and things occurring prior to the probating of the will of Emil Pinkert, deceased; and to the appointment of the executors. Findley v. Johnson, 142 S.W.2d 61. (4) The court did not err in rendering judgment for the plaintiff, Albert Stein and his two brothers, the defendants, William Stein and Fred Stein, and against defendant executor, for eleven thousand ($ 11,000) dollars claimed by said executor. The court did not have jurisdiction over the corporation.

Ira B. Burns for Fred Stein, William Stein, Minnie Stein, Emil Gottschalk and Max Gottschalk.

(1) The court did not err in rendering judgment in favor of the plaintiff and the defendants, William Stein, Fred Stein, Minnie Stein, Emil Gottschalk and Anna Lochman. Sinnett v. Sinnett, 201 S.W. 889; Campbell v. McLaughlin, 205 S.W. 18; Hartley v. Hartley, 44 S.W. 1044, 143 Mo. 216; Taylor v. Crockett, 123 Mo. 300; Vaughn v. Vaughn, 158 S.W. 344, 251 Mo. 441; Carpenter v. Kendrick, 252 S.W. 646, 299 Mo. 95; In re Soulard's Estate, 141 Mo. 642, 43 S.W. 617; Harris Banking Co. v. Miller, 190 Mo. 640, 8 S.W. 629; Gartside v. Pahlman, 45 Mo.App. 160; Thomas v. Thomas, 107 Mo. 463, 18 S.W. 27; Meyer v. Koehring, 129 Mo. 25, 31 S.W. 449; Gunn v. Thruston, 130 Mo. 345; Trustees of the Grange Male & Female College v. Parker, 200 S.W. 663, 198 Mo.App. 372; Rollestone v. Natl. Bank of Commerce, 299 Mo. 57, 252 S.W. 398; St. Louis Trust Co. v. Rudolph, 37 S.W. 519, 136 Mo. 169; Jones v. Jones, 201 S.W. 557. (2) The court did not err in excluding defendants' Exhibit 4. (3) The court did not err in admitting the evidence offered by the plaintiffs and the defendants, Fred Stein, William Stein, Minnie Stein, Anna Lochman and Emil Gottschalk. The error complained of cannot be considered by the court because the appellant has not pointed out the testimony complained of on its assignment of errors. Jeck v. O'Meara, 122 S.W.2d 905; Massey-Harris Harvester Co. v. Quick, 87 S.W.2d 446; Elsea v. Smith, 273 Mo. 396, 202 S.W. 1073; Mason v. Mason, 231 S.W. 971. (4) The court did not err in finding against defendant, Mercantile Home Bank & Trust Company, on the counterclaim for $ 11,000. Sec. 1724, R. S. 1929; Gregory v. Jones, 101 Mo.App. 270, 73 S.W. 899; Combs v. Coombs, 86 Mo. 176; Bader v. Ferguson, 118 Mo.App. 34, 94 S.W. 836; 41 C. J., p. 7; Gerding v. Walter, 29 Mo. 426; St. Louis Trust Co. v. Rudolph, 136 Mo. 169, 37 S.W. 520; Sec. 777, R. S. 1929; Joyce v. Growney, 154 Mo. 253, 55 S.W.2d 199; Campbell v. Spotts, 331 Mo. 974, 55 S.W.2d 986; Cohen v. Daily, 52 S.W.2d 199; Miller v. Crigler, 83 Mo.App. 395.

James E. Burk and Madden, Freeman & Madden for Anna Lochman.

OPINION

Douglas, J.

This is a suit to establish a trust in moneys and bonds instituted in the Circuit Court of Jackson County by the person claiming to be trustee, who is in possession of such personal property. His infant daughter who is a beneficiary is also a party plaintiff. The defendants include the other beneficiaries and the executors of the estate of the donor of the trust.

The pleadings allege that on January 19, 1939, one Emil Pinkert of Kansas City gave the plaintiff, Albert Stein of Wichita, a nephew by marriage, government bonds of the face value of $ 20,500 and $ 3,900 in cash. One one-thousand-dollar bond was to be held by Stein in trust for his infant daughter, Charlotte Anne, to be used for her education. The remaining bonds and cash were to be held by Stein until after Pinkert's death and then distributed equally among Pinkert's six nephews and nieces. In addition to the above Pinkert also gave Stein $ 2,475 to be used to pay the debts of another relative of Pinkert's named Max Gottschalk who also resided in Wichita. Should any balance remain after these debts were settled, it was to be paid to Gottschalk in monthly installments. The bonds and cash were delivered into Stein's possession and control and were held by him from such date.

Emil Pinkert died testate on April 11, 1939. He appointed the Mercantile Home Bank & Trust Company of Kansas City as one of the executors of his will. The trust company is the only real adversary party. By its answer and counterclaim it denied that any such gift was made. It charges that Stein and one of the defendants took the personal property from Pinkert's safe after Pinkert's death and without authority, and prays that such property be returned to the estate. It also charges that the plaintiff and his two brothers Fred and William Stein, defendants, were indebted to Pinkert in the amount of $ 11,000 and asks judgment for that amount.

The chancellor found for plaintiffs and entered a decree upholding the gifts, establishing the trusts and ordering distribution to the beneficiaries. He also found for the Stein brothers on the $ 11,000 claim. The trust company alone has appealed.

The evidence shows that Emil Pinkert had come to this country from Germany and for fifty years had resided in Kansas City. He had been in the fur business and was so successful that he...