Opinion
No. 28517.
February 17, 1953. Rehearing Denied March 13, 1953.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, WALDO MAYFIELD, J.
George S. Roudebush, St. Louis, for Mercantile Trust Co., appellant.
S. C. Rogers, St. Louis, for affiant and Lillie Belle Peck, appellants.
David Y. Campbell, St. Louis, for Gustave A. Stamm, respondent.
Richard S. Bull, St. Louis, for Washington University, respondent.
This action was brought by Charles Gordon Peck, who, as a grandnephew of the deceased, Rebecca P. Dusenbery, claims that he is entitled to a distributive share of her estate and consequently has an interest in it. He filed in the probate court an affidavit in which he averred that Gustave A. Stamm, Washington University, a corporation, and certain named others were withholding property and money belonging to the Estate of Rebecca P. Dusenbery, and he prayed the court to cite the persons named, to answer the charges made. Peck and the executors of Rebecca P. Dusenbery's estate filed interrogatories directed to all those named in the affidavit and each of them answered. Upon a hearing the probate court dismissed the citation and an appeal was taken to the circuit court. The circuit court, upon motion, dismissed as to all those cited except Gustave A. Stamm and Washington University. The trial was to the court, and after a hearing as to the remaining respondents it dismissed the citation, and it is from this order that the corporate executor and two heirs took this appeal. Rebecca Dusenbery's will provided for two executors, Ewald F. Sunkel and the Mississippi Valley Trust Company, but Sunkel is now deceased and the Mississippi Valley Trust Company merged with the Mercantile Trust Company, which by substitution is the executor appellant.
The facts as disclosed by the evidence show that Rebecca Dusenbery and Belle P. Bryant were widowed sisters and the daughters of Charles H. Peck, deceased. They lived together for many years in a house, which they inherited from their father, at No. 7 Vandeventer Place, in the City of St. Louis. Their sleeping quarters were on the second floor. Belle had, for her personal occupancy, two rooms and a bath on the east side of the house while Rebecca used similar rooms on the west side. On August 8, 1942, Belle P. Bryant died, and, after certain bequests, left the residue of her estate to Washington University. Her executor was Gustave A. Stamm. After her death he called at No. 7 Vandeventer Place with a Judge McDonald and Mr. Sunkel to go through her effects and to inventory them for the purpose of administration.
Rebecca Dusenbery's nurse, who testified on behalf of the executors, related what occurred after Belle P. Bryant's death. She said that when the gentlemen mentioned called to take an inventory of Belle's property Rebecca Dusenbery refused to let them open the dresser drawers, go through the closets or open a trunk that was there. When she was informed that under the law she was obliged to permit an inventory to be made of the property that belonged to her sister, she said, "I will not allow it", and the argument was finally concluded by Mr. Stamm saying, "Well, she is an old lady; let's wait a while." At that time Mrs. Dusenbery was about ninety years of age. The nurse testified that the appraisers left and about a week later she was present when Belle's trunk was opened at the direction of Mrs. Dusenbery, who asked her to see what was in it. The nurse informed Mrs. Dusenbery that there was a billfold in the trunk containing considerable money and there was also some jewelry there. When she informed Mrs. Dusenbery of this, Mrs. Dusenbery said, "You keep your mouth shut and be smart like I am, you are working for me." The witness also testified that Rebecca Dusenbery prior to her sister's death paid all of her bills by check but Belle Bryant kept large sums of cash on hand. She also stated that after Belle's death Rebecca Dusenbery started paying her bills in cash.
The executors of Rebecca Dusenbery also called to the stand a Miss Walker, who had been Mr. Stamm's secretary, and who testified that shortly after Belle's death Rebecca phoned her almost every day concerning some claim that she said she had against Belle's estate, and she was always informed that she should have Judge McDonald prepare a claim and present it for allowance in the probate court. In November of that year she phoned Miss Walker and when Miss Walker inquired about her claim she was told by Rebecca that it was none of her business and that she, Rebecca, had been paid and didn't need to file a claim.
In 1947, Rebecca Dusenbery died, and the same nurse who had been with her at the time of her sister's death called Mr. Stamm, who came to the house to make funeral arrangements and search for a will. In going through the various effects in the rooms occupied by Rebecca Dusenbery a billfold containing four $500 bills, an unmarked locked tin box and a valise with the initials B. P. B. upon it were found in the closets. These were taken by Mr. Stamm and placed in a safe and on the day following three other tin boxes were found, one of which was marked Rebecca Adams Peck, and the other two were marked Rebecca P. Dusenbery. These also were turned over to Mr. Stamm for safekeeping.
At the request of Judge McDonald, who had been Rebecca Dusenbery's personal attorney, Mr. Stamm had drawn a will for Rebecca Dusenbery in which she had named as her executors Ewald Sunkel and the Mississippi Valley Trust Company, so Mr. Stamm called Mr. Sunkel and asked him to come to his office where they decided that the boxes should be opened to see if they contained a will. No will was found in them and the next day all of the boxes, etc. were taken to the Mississippi Valley Trust Company and placed in a safe deposit box. Soon thereafter the will was found and Mr. Stamm again met with Mr. Sunkel, the co-executor, to determine the ownership of the property they had taken from No. 7 Vandeventer Place. With them at the time was Elizabeth Walker, Mr. Stamm's secretary, C. S. Aehle, a jeweler, who had made jewelry for both Belle Bryant and Rebecca Dusenbery and was familiar with the jewelry belonging to both of them, and a niece named Mrs. Butcher.
On the information given them by the nurse it was decided that the cash in the billfold, which had been Belle Bryant's, belonged to the Belle Bryant estate and the same conclusion was reached as to the jewelry in the handbag bearing her initials, for this jewelry was identified by Mr. Aehle as belonging to Mrs. Bryant. The tin boxes contained silverware which was readily identified by monograms engraved upon the various pieces, so those bearing the Bryant monogram were set aside as a part of the Belle Bryant estate. After thus determining the ownership of the various items, property appraised at $11,757 was taken over by Rebecca Dusenbery's executors and there was turned over to Stamm as the executor for Belle Bryant $2,000 cash and jewelry and silverware appraised at $3500.
Administration of Belle Bryant's estate was reopened and the cash, jewelry and silverware were listed in a supplementary inventory. By an order of distribution later entered the cash and other items, less expenses, were turned over to Washington University, which sold the jewelry and silverware and added the proceeds of the sale to the cash it received, and credited the total sum to an endowment fund set up by the terms of Belle Bryant's will.
It is this $2,000 cash and the property valued at $3500 that Charles G. Peck, grandnephew of Rebecca Dusenbery, seeks by these proceedings to have turned over to Rebecca Dusenbery's estate.
The interrogatories inquired of Gustave Stamm if "he caused to be removed from the premises occupied" by Rebecca Dusenbery any cash, jewelry and silver, and to this question he answered "Yes". To a question relating to the disposition of the property he answered giving in detail the facts set forth above. Washington University answered that it received the cash and articles from Stamm and set out the disposition it had made of them, which was the same as above stated.
The executors and heirs moved below for a judgment on the pleadings and it is here contended that the court erred in refusing to sustain the motion. The basis for the contention is that since the answer admitted having taken property from the premises occupied by Rebecca Dusenbery there was an admission of the facts alleged in the affidavit.
This proceeding is statutory and brought under Section 462.400 RSMo 1949, V.A.M.S., which states:
"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 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."
The interrogatories are filed in accordance with Section 462.410 RSMo 1949, V.A.M.S., which is as follows:
"If the party so cited does not admit the allegations in the affidavit, he shall be examined under oath, after which, at the instance of the administrator or executor, other witnesses may be examined both for and against such party; but before such other witnesses shall be examined, interrogatories shall be filed in writing, to be answered also in writing by the parties cited."
In an action such as this the interrogatories and the answers make up the pleadings and the issues to be tried must be found in them. We so held in Re Weingart's Estate, Mo.App., 170 S.W.2d 972, wherein a history of the various revisions down to the current statute was discussed at length. See also: Clinton v. Clinton, 223 Mo. 371, 123 S.W. 1; In re Estate of Huffman, 132 Mo.App. 44, 111 S.W. 848; Maynard v. McClellan, 236 Mo. App. 352, 156 S.W.2d 770. The interrogatories and answers contain no admission of any kind except that the property was taken from the premises occupied by Rebecca Dusenbery. This was followed by a recitation of facts which, if true, disclosed that the property taken belonged to Belle Bryant. Thus the issues were made up and the fact of ownership clearly placed before the court for determination. So it was not error to overrule the motion for judgment on the pleadings.
Most of the other points advanced as error by the appellants are predicated upon the proposition that Rebecca Dusenbery's possession of the cash and chattels in dispute created a presumption of her ownership and cast upon Belle Bryant's executor the burden of proving his right to the property. We are cited to a number of cases, which follow the general rule of law for which appellants contend; some of them are as follows: Newell, Public Adm'r v. Edom, Mo.App., 242 S.W. 701; Starks v. Lincoln, 316 Mo. 483, 291 S.W. 132; Tygard v. Falor, 163 Mo. 234, 63 S.W. 672; In re Diehl's Estate, Mo.App., 239 S.W.2d 523; Ross v. Pendergast, 353 Mo. 300, 182 S.W.2d 307. But it should be noted that in most of the foregoing cases the money or property in dispute admittedly belonged to the decedent at one time and was being claimed as a gift by the defendants in the various actions.
In Ross v. Pendergast, 353 Mo. 300, 182 S.W.2d 307, 309, upon which appellants place reliance, the Supreme Court stated:
"It is well settled law that exclusive possession and control over property are circumstances that raise a presumption of ownership in the possessor and anyone else claiming the property has the burden of proof."
But in the same opinion the court went on to quote with approval from State ex rel. Detroit Fire Marine Ins. Co. v. Ellison, 268 Mo. 239, 187 S.W. 23, loc. cit. 26:
"`To say, however, in an instruction to a jury, in the case of a rebuttable presumption, and when evidence has been introduced upon the question, that "the law presumes" so and so, and that such presumption "must be overcome" or "overthrown" by evidence, is sometimes useless, sometimes prejudicial, and always illogical.'"
The above case was followed with approval in Valentine v. St. Louis Union Trust Co., Mo.Sup., 250 S.W.2d 167.
However, the most recent case discussing this general type of presumption is Michler v. Krey Packing Co., Mo.Sup., 253 S.W.2d 136, 139, wherein Judge Hyde, speaking for the court en banc, said:
"Claimant relies upon the presumption of a valid marriage arising from cohabitation, general repute and declarations and conduct of the parties, * * *. The employer urges that the relationship between Lena and Michler was meretricious in its inception and, therefore, it is presumed that such relations continued. * * *. When substantial evidence is introduced by the party against whom a presumption operates controverting the presumed fact, then its existence or non existence is to be determined from the evidence, exactly as if no presumption had ever been operative in the case. In other words, such presumptions are procedural (placing the burden upon the party denying their truth to produce evidence) and not for consideration of the triers of the facts who have the function of determining what facts are proved by the evidence produced."
This pronouncement covers a situation which is closely analogous to the instant case, for the executors while proving possession in Rebecca Dusenbery put on witnesses whose testimony disclosed how she obtained possession, and if she did so wrongfully, then the presumption of her ownership disappears and only the facts that gave rise to the presumption and the other evidence are left for consideration.
The evidence that Rebecca Dusenbery started spending cash contrary to her former habits shortly after Belle's death and her statement to Miss Walker that she had been paid for the claim she was attempting to assert against Belle's estate, together with the other testimony, clearly indicate that the two thousand dollars belonged to Belle Bryant. The silverware and jewelry were certainly identified as being the property of Belle Bryant, so by the force of this evidence the presumption disappeared and all that was left favoring the appellants was the fact of Rebecca's possession of the property.
The evidence all points to the conclusion reached by the trial court and leaves no doubt that Rebecca Dusenbery simply appropriated the cash, silverware and jewelry shortly after her sister died. By so doing, of course she could not create a valid ownership in herself upon any theory.
Other assignments of error go to the admission of certain evidence. One objection was made to the introduction of the answers to the interrogatories and another objection was to the introduction of office memorandums made by Mr. Stamm who was not available as a witness. Since both of these were merely cumulative and neither was considered in reaching the conclusion here stated, the points need not be passed upon.
Consideration was given to the testimony of Miss Walker in which she related the conversations with Mrs. Dusenbery and it is maintained that such evidence is hearsay. This is quite true but the statements of the deceased were admissible against her executor as statements against interest and this has long been the rule in Missouri. Irving's Adm'r v. Irving's Adm'r, 5 Mo. 28; Mumford v. Mumford, Mo.App., 194 S.W. 898; In re Harlow's Estate, 239 Mo.App. 607, 192 S.W.2d 5.
Since it appears from the foregoing that neither Gustave A. Stamm nor Washington University appropriated any money or property belonging to the estate of Rebecca Dusenbery, the court properly dismissed the citation, and it is the recommendation of the Commissioner that the order be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The order of the circuit court dismissing the citation is accordingly affirmed.
BENNICK, P. J., and ANDERSON and ARONSON, JJ., concur.