Sutorius v. Mayor
| Citation | 170 S.W.2d 387,350 Mo. 1235 |
| Decision Date | 06 April 1943 |
| Docket Number | 38311 |
| Parties | Irene Mayor Sutorius, Florence Mayor Chapman, Harold A. Mayor, Helen Schlotzhauer, Gladys Olson, Archie Mayor, and the First National Bank, a Corporation, Guardian of Edwin Mayor, Jr., Velma June Mayor, and Ela Belle Mayor, Minors, Plaintiffs-Respondents, v. Wilhemina Mayor, William Jennings Bryan Mayor, Levonah Mayor Bauer, Lora Evelyn Mayor McWhirter, and William Jennings Bryan Mayor, Executor of the Estate of Henry A. Mayor, Deceased, Defendants, William Jennings Bryan Mayor, and Levonah Mayor Bauer, Appellants |
| Court | United States State Supreme Court of Missouri |
Rehearing Denied in Opinion Filed May 4, 1943.
Motion to Transfer to Banc Overruled June 1, 1943.
Appeal from Jackson Circuit Court; Hon. Albert A. Ridge Judge.
Reversed.
William S. Warden, Gilbert R. Titus, Paul C. Sprinkle, Wm. F Knowles and Sprinkle & Knowles for appellants.
(1) The court erred in rendering its decision and judgment for plaintiffs and against defendants, William Jennings Bryan Mayor and Levonah Mayor Bauer, which among other things was a finding to the effect that real property deeded to said defendants by their mother, Wilhemina Mayor, was not the property of the grantor to deed, whereas, the title of said real property at the time of the death of Henry A. Mayor, the father of said defendants, stood in the name of Henry A. Mayor and Wilhemina Mayor by the entirety and upon the death of said Henry A. Mayor the property became the sole property of Wilhemina Mayor, the grantor to these defendants. Milligan v. Bing, 108 S.W.2d 108, 111, 341 Mo. 648; Alexander v. Alexander, 44 S.W.2d 872; Decker's Estate, 152 S.W.2d 104; 27 C. J., p. 647, sec. 415; Carrol v. Meek, 137 S.W. 19; Jones v. Jefferson, 66 S.W.2d 552, 334 Mo. 606; Creamer v. Bivert, 113 S.W. 1118, 214 Mo. 473; Stierlin v. Teschemacher, 64 S.W.2d 647, 333 Mo. 1208; Fulbright v. Phoenix Ins. Co. of Hartford, 44 S.W.2d 115, 329 Mo. 207; Curd v. Brown, 49 S.W. 990, 148 Mo. 82; Hernandez v. Prieto, 162 S.W. 829; Schwind v. O'Halloran, 142 S.W.2d 55, 346 Mo. 486; Sec. 1887, R. S. 1939; Eaton v. Curtis, 4 S.W.2d 819, 319 Mo. 660; Wren v. Sturgeon, 184 S.W. 1036; Reed v. Morgan, 73 S.W. 381; Smith v. Brinkley, 132 S.W. 301, 151 Mo.App. 499; Rice v. Shipley, 60 S.W. 740, 159 Mo. 399; Messimer v. McCrary, 21 S.W. 17, 113 Mo. 882; Slagle v. Callaway, 64 S.W.2d 923, 333 Mo. 1055. (2) The court erred in its judgment and finding that the will of Henry A. Mayor disposed of the real estate described in plaintiffs' petition because the testator had no testamentary control over said property at the time of his death. Simon v. St. Louis Union Trust Co., 139 S.W.2d 1002, 346 Mo. 146; Ashbaugh v. Ashbaugh, 201 S.W. 72, 273 Mo. 353. (3) The court erred in its judgment and finding that the defendants, William Jennings Bryan Mayor and Levonah Mayor Bauer, are estopped to claim property described in plaintiffs' petition as grantees from their mother, Wilhemina Mayor, because said grantor had elected to accept as a widow and heir under the provisions of the will of her husband, Henry A. Mayor, when as a matter of fact said widow did not make an election and when as a matter of fact the will of her said husband by its provisions did not require the wife to make an election and when as a matter of fact the said widow did nothing by conduct which would constitute an election as to said real property. Simon v. St. Louis Union Trust, 139 S.W.2d 1002, 346 Mo. 146; Pomeroy on Equity Jurisprudence (4 Ed.), sec. 515; 69 C. J., p. 1117, sec. 2392; 69 C. J., sec. 2331, p. 1090; Ball v. Ball, 65 S.W. 522, 165 Mo. 312; Pemberton v. Pemberton, 29 Mo. 408; Elmore v. Byrd, 104 S.E. 162; Fox v. Windes, 30 S.W. 323, 127 Mo. 502; Delta Realty Co. v. Hunter, 152 S.W.2d 45; State v. Shell Pipe Line Corp., 139 S.W.2d 510, 345 Mo. 1222; Mellinger v. Mellinger, 76 N.E. 615; Wilkinson v. Lieberman, 37 S.W.2d 533, 327 Mo. 420; Charter Oak Inv. Co. v. Felker, 60 S.W.2d 655; Alkire Grocery Co. v. Ballinger, 38 S.W. 911, 137 Mo. 369; Roth v. Hoffman, 111 S.W.2d 988, 234 Mo.App. 114; Lynch v. Jones, 247 S.W. 126; Egger v. Egger, 123 S.W. 928, 225 Mo. 116; Goessling v. Goessling, 230 S.W. 613, 287 Mo. 663; Bretz v. Matney, 60 Mo. 444; Flynn's Estate, 67 S.W.2d 771, 228 Mo.App. 1197; Prouse v. Schmidt, 156 S.W.2d 919; Secs. 332, 333, R. S. 1939; Egger v. Egger, 123 S.W. 938, 225 Mo. 116; White v. Greenway, 274 S.W. 487; Pemberton v. Pemberton, 29 Mo. 408; Dobschutz v. McAlevey, 213 S.W. 82. (4) The court erred in admitting over the objections of defendants the testimony of witnesses Irene Sutorius and Florence Chapman concerning alleged declarations of Henry A. Mayor made to Wilhemina Mayor and statements and conversations had with Wilhemina Mayor for the reason that both Henry A. Mayor and Wilhemina Mayor were deceased at the time of the trial and that said Irene Sutorius and Florence Chapman were parties plaintiff in this action claiming under and as heirs of said Henry A. Mayor and were, therefore, disqualified and incompetent to give said testimony by reason of Section 1887, Revised Statutes, 1939. (5) The court erred in its judgment and finding that Henry A. Mayor was the equitable owner of the nine pieces of real estate described in plaintiffs' petition and in finding that the deed of conveyance of said real estate under the date of January 30, 1933, to Henry A. Mayor and wife was not intended to create an estate by the entirety in said properties and that no actual estate by the entirety was created for the reason that there was not clear, cogent and convincing as well as definite and positive evidence to support said finding.
Oscar D. McCollum and August F. Behrendt for respondents.
(1) The presumption that a gift to or settlement upon Mrs. Mayor arising from the joint deed, being overcome by clear, cogent and convincing proof that an entirety estate with rights of survivorship was not intended, establishes Henry A. Mayor as the equitable owner of the properties in controversy at the time of his death. Milligan v. Bing, 108 S.W.2d 108; Alexander v. Alexander, 44 S.W.2d 872. (2) The appellants make no claim that an actual estate by entirety was intended by the parties, and the undisputed evidence shows that neither Henry A. Mayor nor his wife Wilhemina Mayor, had such intention. Furthermore, appellants concede that no such estate was intended by asserting and contending that respondents have no standing in Court because they are claiming under their father and the conveyance was made to defraud a damage suit claimant. (3) Mrs. Chapman was not an incompetent witness under the statute to testify as to the declaration of Mr. Mayor in the presence of Mrs. Mayor of his intention to so transfer these properties until the damage suit was settled, as Mr. Mayor, if living, would have been a competent witness on the question of his intent at the time there being no contract or transaction between them and no diversity of interest. Section 1887, R. S. 1939; Elsea v. Smith, 273 Mo. 396; Hill-Dodge Banking Co. v. Loomis, 140 Mo.App. 62. (4) The intent of Mr. Mayor in effecting the entirety deed being in question, his acts and statements shortly before and after and bearing thereon are material and relevant, and the terms of his will relating to these properties of which he is in possession at the time of its execution will not be barred from consideration as self-serving because the will postdates the entirety deed giving rise to a presumptive gift only, and especially here where Mrs. Mayor or those claiming under her make no claim that an actual gift was intended by the entirety deed, and where she is shown to have recognized his ownership of the properties by accepting his disposition thereof by the will. Allen v. Morris, 244 Mo. 357; Boyd v. Jones, 60 Mo. 454; Peterman v. Crowley, 226 S.W. 944. (5) Respondents are not embarrassed in a court of equity in seeking to set aside the deed of Mrs. Mayor as the survivor of an estate by entirety, when such estate did not in fact exist, when all the evidence shows no intent to cheat or defraud the damage suit claimant; and a greater wrong would be perpetrated by permitting her deed to stand when an actual estate of entirety is shown to have not been intended. O'Bannon Banking Co. v. Blankenship, 128 S.W.2d 271; Dawes v. Williams, 40 S.W.2d 64; McCluer v. White, 93 S.W.2d 696; Merz v. Tower Grove Bank & Trust Co., 130 S.W.2d 611; Snitzer v. Pokres, 23 S.W.2d 155; Lindsley v. Caldwell, 234 Mo. 498; Mentzer v. Mentzer, 30 S.W.2d 146. (6) The will, specifically designating and conveying two of the properties in controversy standing in the names of Henry A. Mayor and wife, and showing by its terms that the other of said properties so standing were intended to be thereby conveyed, is rendered ambiguous in this regard, and the facts and circumstances of the estate will be looked to in determining the testator's intention. McMahan v. Hubbard, 217 Mo. 624; 2 Underhill on the Law of Wills, sec. 910; Mudd v. Cunningham, 181 S.W. 386. (7) The will having devised the property standing in an estate of entirety and gave the widow other property in lieu thereof, she was put to an election to take under the will or the law, and having taken what the will gave her she thereby lost her rights under the law; and having taken what the will gave her she could only renounce in event she returned what she had received under the will and others not be prejudiced thereby within the statutory period of twelve months for making an election. Keene v. Barnes, 29 Mo. 377; Wood v. Conqueror Trust Co., 265 Mo. 511; Lindsay v. Patterson, 177 S.W. 826; Mosely v. Bogy, 272 Mo. 319; Job Haines Home for Aged People v. Keene, 101 A. 512; Jarman on Wills, p. 443; Trautz v. Lemp, 46 S.W.2d 135; Arrington v. McCluer, 34 S.W.2d 67; In re...
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