Tarlton v. Johnson

• Decision Date: 08 March 1940
• Docket Number: No. 6122.,6122.
• Citation: 138 S.W.2d 49
• Parties: TARLTON v. JOHNSON et al.
• Court: Missouri Court of Appeals

138 S.W.2d 49

TARLTON v. JOHNSON et al.

No. 6122.

Springfield Court of Appeals. Missouri.

March 8, 1940.

Rehearing Denied March 21, 1940.

Appeal from Circuit Court, Butler County; Robert I. Cope, Judge.

"Not to be published in State Reports."

Claim based on a promissory note by Mrs. Mildred Revelle Wells Tarlton against K. C. Johnson and another, executors of the estate of J. W. Mott, deceased. The probate court rendered judgment against the claimant, but on appeal the circuit court rendered a judgment in favor of claimant, and Mrs. Inez Ayers Robertson, one of the residuary legatees of the estate, a contestant of the claim, appeals.

Affirmed.

Henson & Henson, of Poplar Bluff, for appellant.

Randolph H. Weber, of Poplar Bluff, and J. R. Burcham, of St. Louis, for respondent.

SMITH, Judge.

This case originated in the Probate Court of Butler County, Missouri, by the claimant, respondent herein, filing her claim against the estate of J. W. Mott, deceased, in the sum of Twenty-six Hundred Dollars ($2,600), based upon an instrument of writing, which is in words and figures, as follows, to-wit:

"The amount of this claim is founded upon a promissory note which is attached hereto and made a part of this demand. The demand is in the amount of $2,600.00. The promissory note reads verbatim as follows:

                "`Dr. Mott
                "`2600.00             Jan. 1st, 1934
                

"`For value received and other consideration, I promise to pay to Mrs. Mildred Revelle Wells the sum of Twenty six hundred dollars without interest. This is a just and bonafide note and should be paid without question.

                "`P. S. Later               J. W. Mott
                

"`This has no connection with my will, and should not be so considered. It is only held by me for safe keeping. This accounts for it being in my possession.

                                         "`J. W. Mott'"
                

Mrs. Inez Ayers Robertson, one of the residuary legatees of the estate of J. W. Mott, deceased, on the 28th day of January 1939, filed in the probate court her answer, denying the legality of the demand of the claimant, which is in words and figures as follows, to-wit:

"Comes now Inez Ayers Robertson, one of the residuary legatees of the estate of J. W. Mott, deceased, and denies that the demand of Mildred Revelle Wells, heretofore filed in this court, is a just and legal demand against said estate.

"Wherefore, this legatee of said estate prays the court that said demand be disallowed."

Said claim was tried in the probate court on Saturday, January 28, 1939, before Honorable D. B. Deem, Judge of the Probate Court of said county, without the aid of a jury, and resulted in a finding and judgment against the claimant, from which judgment the claimant prosecuted an appeal to the Circuit Court of Butler County, and on the 25th day of May, 1939, said cause was tried in the Circuit Court before Honorable Robert I. Cope, Judge of said court, a jury being waived by both parties, and the court, after having heard all of the evidence offered, took said cause under advisement and thereafter, to-wit; on the 14th day of June 1939, found the issues for the claimant, Mrs. Mildred Revelle Wells, now Tarlton, and rendered judgment in favor of said claimant, finding that said note had been made and delivered to Mrs. Wells Tarlton by Dr. Mott for a good and valuable consideration, allowing her said sum of Twenty Six Hundred Dollars ($2,600) out of the funds of the estate of J. W. Mott, deceased, and taxed the costs of this suit against the contestant, appellant herein; that thereafter and at the same term of said court, the contestant filed her motion for new trial, which said motion for new trial was, by the court, overruled. Thereafter the contestant filed an affidavit for appeal in due form to the Springfield Court of Appeals, which appeal was granted.

The case is presented to us under six assignments of error set out under "Points and Authorities" of Appellant's Brief, which we shall consider but not in just the order presented. The first assignment briefed is stated as follows: "A note in order to be a gift must be paid prior to the death of the donor." The third is "Delivery is an essential element to the validity of a promissory note" and the fifth is stated as follows: "Until plaintiff accepted note executed by defendant there was no agreement between them." Evidently the word "deceased" was intended for "defendant" in the last above quoted sentence. These three statements, while they could hardly be called assignments of error, call for a consideration of the facts in the case, and a determination, if we can determine, as to whether error was made in the trial of the case. The above statements are followed by the citation of several authorities. We are forced to the conclusion that the authorities cited by the appellant under the first of the statements do not aid us in the determination of the issues here.

There is no question but that generally delivery is an essential element as to the validity of a promissory note. We find in the testimony offered that there was evidence that a delivery of this note was made by J. W. Mott to his sister-in-law, Mildred Revelle Wells, who later married Tarlton. The evidence showed that at the time of death of Dr. Mott, the note in question was in his lock box at the bank. It was found in his private box by the executors of his will. The testimony was that the note and signature was in Dr. Mott's handwriting, as well as the postscript at the bottom of it.

There was testimony given by Mrs. L. L. Vandevoort, who lived at Chicago, a sister of Mrs. J. W. Mott, and Mrs. Tarlton, that she saw the note in the possession of her sister at Chicago, when her sister was visiting her there, and that while there, her sister lost this note and some other valuable papers, and that she helped her hunt for and find the note. Dr. Mott was at Chicago at the same time, and after the note was found in Mrs. Tarlton's grip, Dr. Mott took possession of the note and put it in his pocket and said "he thought he would take possession of the note because sister was gallivanting around over the country and he was afraid she might lose it and he was going to take it and keep it." Mrs. Vandevoort said that he took an insurance paper at the same time, and was going to keep them in his safety deposit box. When Mrs. Vandevoort was shown the promissory note in question at the time she was testifying, she said: "I have seen this instrument in writing which was handed to me by Mr. Weber. It is a note made payable to Mrs. Wells and I previously saw that note in my apartment in August, 1934. It is the note Mrs. Wells thought she had lost and is the note I saw found there in her bag. It is the same note that Dr. Mott put in his pocket and said he would keep because Mrs. Wells was always gallivanting around and he would take care of it for her."

Mrs. Vandevoort testified at length as to the relations that had for a long time existed between her sisters, Mrs. Tarlton, Mrs. Mott and Dr. Mott. Among other things she said: "A. She cooked for them and she prepared their meals and waited on them. By `Them' I mean Dr. Mott, too. He was there, too. I know of my own knowledge that Mrs. Wells came to Poplar Bluff and stayed with Dr. and Mrs. Mott. I think she must have been probably more than one and a half years that I know of. I was down here the last six weeks that my sister lived and my sister, Mrs. Wells, was there, too. Mrs. Wells took Mrs. Mott to various hospitals in the country. She took her to Mayos' Brothers and a hospital in Kansas City and the Barnes Hospital in St. Louis. Prior to Mrs. Mott's death, Mrs. Wells was with her continuously for, I would say, almost two years. She traveled with her."

Mr. K. C. Johnson, one of the executors, said in part:

"My name is K. C. Johnson. I live at Poplar Bluff, Missouri and have lived at Poplar Bluff, Missouri thirty-three years. At the present time, I am employed by the Clevlen Insurance Agency. I knew Doctor J. W. Mott in his lifetime. I am one of the executors of the will of Dr. Mott. I was designated by him in that will as an executor. His will was in his own handwriting. Reverened J. L. Wilkinson is the other executor. He has since left here and is in Salt Lake City, Utah. I was present at the Bank of Poplar Bluff when the lock box and effects of Dr. Mott were gone into. Others who were present at that time were Reverend J. L. Wilkinson, Judge Deem, F. M. Kinder, P. C. Hays and Girard Saracini. P. C. Hays is the Cashier of the State Bank of Poplar Bluff and Girard Saracini is the Cashier of the Bank of Poplar Bluff. Mrs. Wells and her brother, Judge Revelle, and Mrs. Robertson were, also, present. Among other things, we found there a note made by Dr. Mott to Mrs. Mildred Revelle Wells, in the amount of $2600. The note which you now hand me, which is attached to the files in this case, is the note that was found there at the Bank. During Dr. Mott's lifetime, I was a close personal friend of his. During that time, I had occasion to observe and see his handwriting and became familiar with it. I would say this note, I have in my hand, is in Dr. Mott's handwriting, and the signature at the end of the note and then at the bottom of the postscript is his signature. The envelope, which you now hand me and which is, also, attached to the files under this note was likewise found. As I recall, the note was in the envelope. It is addressed to the administrators or executors. I don't remember whether the envelope was opened or closed at the time. Dr. Mott had one safety deposit box, then he had a small tin document box that was put in the vault for safe keeping. The safety deposit box is the regular box that the bank has down there. As I recall, the note was found in the safety deposit box in the regular bank box.

"Q. Mr. Johnson, do you recall whether or not this pocket book here I now hand you was also found down there in those boxes, one of those? A. Yes, sir.

"Mr. Henson: I...