Tygard v. Falor

• Decision Date: 21 May 1901
• Citation: Tygard v. Falor, 163 Mo. 234, 63 S.W. 672 (Mo. 1901)
• Parties: TYGARD v. FALOR.
• Court: Missouri Supreme Court

63 S.W. 672

163 Mo. 234

TYGARD v.FALOR.

Supreme Court of Missouri, Division No. 2.

May 21, 1901.

EXECUTORS — WITHHOLDING ASSETS — ACTION — PLEADING — WITNESS — EVIDENCE — INSTRUCTIONS.

1. Rev. St. 1899, § 74, provides that, if an executor or other person interested in an estate file an affidavit that he believes any person has concealed, or embezzled, or wrongfully withheld any assets of the deceased, the court may compel the appearance of such person.Section 75 requires that, if a party does not admit allegations of affidavit, interrogatories be filed.An affidavit charged that an executor of the will had concealed and has in his possession certain assets of the estate, which he has neglected and refused to inventory.Thereupon certain interrogatories were filed, and answers by the defendant.Held that, after the filing of the interrogatories and the answers thereto, it was immaterial that the affidavit only charged the concealing of assets, where the interrogatories and the answers did not refer to the concealing of assets, but only to the "withholding" of the same.

2.That in proceedings under Rev. St. 1899, §§ 74, 78, to compel an executor to inventory certain property of the estate, the plaintiff was compelled to file interrogatories for defendant to answer, did not make him a witness for plaintiff, so as to waive defendant's incompetency as a witness as to transactions had with his decedent.

3.In proceedings against an executor to discover assets, the executor was an incompetent witness as to business occurrences between himself and the testator, his father, out of which the alleged withholding of assets arose.

4.An objection to a question is insufficient which merely states that the question is "incompetent."

5.In proceedings against an executor for withholding assets, where defendant admits having received money alleged to have been withheld, but states that it was a gift to him, the burden was on him to establish such fact.

6.In proceedings against an executor to recover assets alleged to have been withheld, where the executor claims that such property was given to him by his testator, an instruction that, if deceased gave it during his lifetime to the executor, he was not required to inventory it, was as favorable to defendant as the facts authorized.

Appeal from circuit court, Vernon county; D. P. Stratton, Judge.

Proceedings by W. F. Tygard, trustee of Leroy Falor and others, against Charles Falor, executor of the will of Elias Falor.Judgment for defendant in the probate court, and plaintiff appeals to the circuit court.Judgment for plaintiff, and defendant appeals.Affirmed.

Templeton & Hales and M. T. January, for appellant.Wight & Wight and T. J. Smith, for respondent.

SHERWOOD, P. J.

Proceeding instituted in the probate court of Vernon county by Tygard, as trustee, under the provisions of sections 74, 75, 77, 78, Rev. St. 1899, against Charles Falor, as executor of his father's will, to compel him to inventory certain property.Section 74 makes provision that: "If the executor or administrator, or other person interested in any estate, file an affidavit in the proper court, stating that the affiant has good cause to believe and does believe that any person has concealed or embezzled, [or is otherwise wrongfully withholding] any goods, chattels, money, books, papers or other evidences of debt of the deceased, and has them in his possession or under his control, the court may cite such person to appear before it, and compel such appearance by attachment."Section 75 requires, in case the party cited does not admit the allegations of the affidavit, that interrogatories be filed and answered by the party cited.Section 77 declares how the issue raised upon the interrogatories and answers thereto shall be tried, and that, if the issue be found adversely to the party cited, then the court shall compel the delivery of the property, etc.Section 78 gives like proceedings against executors and administrators as against others mentioned in section 75.The preliminary affidavit filed by Tygard in its charging part declares that: "Charles Falor, executor of the will of Elias Falor, deceased, at the county and state aforesaid, has concealed, and now has in his possession, certain property and assets belonging to the estate of said deceased, to wit, money to the amount of between $2,700 and $2,800 (the exact amount of which is unknown to the affiant), which money he has neglected and refused, and still neglects and refuses, to inventory as a part of said estate, and to charge himself as such executor therewith; that said sum of money was received by said Charles Falor as the agent of the said Elias Falor prior to the death of the said Elias, and was never accounted for by said Charles to the said Elias in his lifetime, or to his estate since his death."The executor was brought into the probate court upon citation, when the plaintiff propounded to him the following interrogatories: "Interrogatory 1.Did you, previous to the death of your father, Elias Falor, between the 1st day of September, 1895, and the 1st day of March, 1896, ship any cattle to market at Kansas city, or elsewhere, for your father?If so, how many, in whose name were they shipped, at what place or station on the R. R. were they shipped from, how much were they sold for, and how much money did you receive on account of the shipment and sale of the same?Interrogatory 2.If you answer that you did receive money for your father on account of the shipment and sale of cattle belonging to him, state what you did with the money.Did you deposit it in any bank?If so, what bank, the date of such deposit, and in whose name was the deposit made?Interrogatory 3.If you answer that you did receive money belonging to your father on account of the shipment and sale of cattle belonging to him between the dates mentioned in interrogatory 1, did you ever turn the same over to your father, and, if not, have you ever charged yourself with it as executor in your inventory of said estate?W. F. Tygard, trustee for Leroy Falor et al., by S. A. Wight, Attorney."Thereupon defendant filed to such interrogatories these answers: "First.In answer to the first interrogatory propounded by the above-named plaintiffdefendant says: I shipped between September, 1895, and March, 1896, three lots of cattle to Kansas City.I do not remember the number.Shipped in my name.Shipped from Sprague, Mo.The three shipments amounted to $3,618.45, and I received that amount on them.In answer to the second interrogatory propounded by the above-named plaintiff, defendant says: All the above-named proceeds were deposited in the Conkling Bank, Nevada, Mo., in my name, as follows: September (about 23d), 1895, $1,408.80; January 11, 1896, $829.66; February 11, 1896, $1,376.03.Of this money, $829.66, — the January shipment, — was afterwards deposited to my father's credit in the Rich Hill Bank.In answer to the third interrogatory, defendant says that of the above proceeds of shipments of cattle he deposited to the credit of Elias Falor, in the Rich Hill Bank, on January 9, 1896, the sum of $829.66.The balance of said shipments, amounting to the sum of $2,783.83, defendant never turned over to his father, for the reason that his father gave said money to him, and told him to keep it; and he has not charged himself as executor with said sum for that reason.Defendant denies that he has concealed said money, or any other money or property belonging to the estate of Elias Falor, deceased.Charles Falor."The trial in the probate court resulted in a finding and judgment for defendant.Plaintiff took the case on appeal to the circuit court, where, upon trial de novo upon the interrogatories and answers thereto, there was a verdict for him, the verdict being: "We, the jury, find the defendant guilty of wrongfully withholding $2,783 from the estate of Elias Falor, as charged.C. C. H. Jennings, Foreman."And on this verdict judgment went in conformity to section 78, compelling defendantexecutor to inventory the sum of money thus found by the verdict to be due the estate, and not inventoried and accounted for by such executor.

The court, at the instance of plaintiff, gave these instructions: "It is admitted by the pleadings in this case that the defendant, Charles Falor, received the sum of $2,783 from the sale of cattle belonging to his father, Elias Falor, and sold by him as agent for his father, between the 27th day of August, 1895, and the 1st day of March, 1896, and that he did not pay the said sum of money to his father in his lifetime, and has not since the death of his father charged himself in his inventory as executor of his father's estate with said money, or in any way accounted to said estate for the same.Wherefore the court instructs you that you will find the defendant guilty of wrongfully withholding said money from said estate, in refusing to inventory the same as such executor, unless you shall further find from the evidence that the said Elias Falor in his lifetime gave said money to said Charles Falor to keep and hold as his own property; and before...