*1 Kelso, Daub, Campbell v. supra; See, also, Sup.), (Mo. Hubble v. (2d) 594, Banks, 37 S. W. supra; Black Mo. Collector, Sanders, 326 Koeln, State ex rel.
986. forty $2000 worth from $1000 In this acres of land case recently cited, supra, and eases, In line with the $79.05. sold Jones-Munger Tax decided, involving under the them sales most of question land in Law, consideration we Jb.old’that amount to fraud. grossly inadequate as itself to petition, mentioned There no contention cross S. fully comply provisions of Sec. R. supra,'does with the or cancel 1939, providing that in the event- of suit to set aside taxes, interest, et refund all petitioner tax deed shall offer to recovery that such lien cetera, and taxes shall be the event is, therefore, plain It immaterial upon the lands recovered. quiet R. expressly proceed not- under Sec. S. tiff invalid, paid, title to recover taxes and, in the event title therein interest, cetera, provided. as judgment with directions is reversed and the cause remanded judgment prayed for in the cross peti- trial to enter as plaintiff’s rights as tion, subject mentioned Sec. Bradley Van Osdol, CC., concur. supra. Sec. foregoing C., opinion is adopted PER CURIAM:—The Dalton, judges court. All the opinion of the concur. Respondent, Ada v. Ben A. Atchison, Melvin the Estate Will of Atchison, Executors John R. Weak ley, Deceased, pendente Administrator Cummings, Jewell Weakley, Deceased, Appellants. Estate of John lite (2d)W. No. 38262. 169 One,
Division March Rehearing Denied, April 6, 1943. *2 Raymond appellants. A. Cross, B. Walter Cross & C. DuBois *3 Ewing, Stephen J. Dorr K. Owen and Mayer Chas. H. for re- spondent. BRADLEY, C.—This August cause commenced on petition and the inis two counts, upon a separate promis- each sory note. The first count was to recover on a note for $1050 dated 13, 1936, June and the second was to recover on a note for cause, dated March 1934. The count, second been tried has appealed twice and twice. At the first trial recovered count, the first but lost on the appealed second. Plaintiff from the *4 judgment against her on the second count, judgment and the was reversed and the cause remanded. Weakley al., Atchison v. 743, appeal Defendants did not judgment plaintiff from the favor of on first count, the count involved. is not here trial on the second count
At the second the judgment verdict and $20,000 plaintiff note, for for the face of plus went the interest $12,303, making a of $32,303, the sum of total ap- defendants pealed. says were *5 going to what things on cross-examination as a-lot of explain to We make a little record. We want to T. Cross : Pross in estate. this disregard jury the to the to instruct move object and to want somebody might have said What The Court: statement. that that Ewing: I understand Mr. Do do that. don’t didn’t —let’s
their they may failure him, to call that draw inference ? The Court: right. All Ewing (continuing) right Mr. : I think I have a to draw the inference that if had that taken that stand —Pross T. Cross man object. (interrupting) subpoena : We want to They not object administrator here and we and move the in to that court to jury disregard reprimand Ewing struct the to statement that Mr. making statements of kind. The that Court: Motion to curtail argument proceed (exception).” overruled — says Plaintiff that for a new the motion trial did not call to the argument attention of the trial court the failure the execu- testify. subject argument only tor to alleges On motion follows: “In overruling objections argument defendants’ to of one of attorneys for plaintiff jury, Ewing, arguing J. Dorr to the jury that Weakley, on account of the death of John testify could case, not plaintiff that would have more evidence,in testify if plaintiff case handicapped could and was present the case and could not jury her case to the such except under handicap plaintiff testify could competent because not and was not a witness under the law. declaring
“In not a mistrial discharging at the re- quest objectionable argument by reason of said Ewing jury arguing stating J. Dorr to plaintiff was handicapped present and could her not ease more com- to pletely testify because could under the law.” assignment
Absent argument in the motion for a new trial toas testify, on the failure complaint the executor is not for (2d) 57, review. City, Beebe v. Kansas 34 S. l. c. Stores, May Dept. Arnold v. 85 W. l. c. 756. says
Plaintiff a also defendants did not matter of “as fact”, trial, in the motion a call new the attention jury deciding trial court what counsel the case “without said as hearing plaintiff testify case; the benefit of defendant or person was now a since this a transaction between deceased and living person.” assuming, deciding, But without motion point, question for new trial was still the sufficient on this remains: prejudicial? maker note, Was such J. course, By language 'a
deceased, was not defendant. transaction”, etc., might “since this the inference going jury, why it, to tell as he counsel understood testified, but whatever had completely had not mind was not objection subject, After the counsel Expressed. abandoned the it. Certainly prejudiced never returned defendants were not said. what counsel
1098 3 assigned plaintiff’s appears,
As error is on instructions by plaintiff’s answer, in the influence Defendants, undue Weakley. No. 3 husband, Atchison, Ben A. Instruction upon J. R. influence. Defend told there was no evidence of such the that ants, brief, the “concede issue undue influence should in the that of instruc jury.” Giving withdrawal not have been submitted the court, and unless a for discretion of the tions is matter the sound do ground complain, we abused, discretion is no such there dis giving the or that not think that the instruction confused W. 752, Mo. 137 al., 345 S. cretion abused. Kick v. Franklin et (2d) 17 W. (2d) 512, 516; 322 Mo. S. Wells, l. Yuronis v. c. Light al., et 340 521; & Power Co. c. Felber v. Union Electric l. al., Quattrochi 498; Wright v. et Mo. 100 W. l. c. S. (2d) 3, l. c. 49 S. W. jury that the No. 5 follows: “The instructs Instruction during that the month of you find from if and believe the evidence deceased, the Weakley, R. now delivered to December, 1933, John $19,000, that having a face value of bonds United States thereby you find, if vest by act, so to then and intended said plaintiff, in the ownership of said bonds control absolute bonds, thereafter, on accepted and that plaintiff then said that the of day. March, 1934, request at the of the about 1st R. John Weakley, R. returned said bonds the said John said on of the value more Weakley, bonds were said that said date find, exchange bonds, said $20,000, that, in than Weakley, executed the name of J. under John R. said $20,000, intro promissory and delivered to 2, then, regardless exhibit No. in evidence duced case, your in this verdict should every circumstance other fact and ...” plaintiff. for the gave to her that plaintiff claims which The bonds bonds, registered contend defendants States were United gift any event, subject were not registered “these wholly trans fails to show such in this case the evidence " any event. assignment as would effective by proper fer (2d) 947, an Costigan al., 326 Gosney In registered involved and on bonds was States alleged gift of United title, donor, absent endorsement of donee’s question fact c. : “The (2d) l. United court said 954] [33 might have refused to transfer Treasury Department States individually prove Costigan not tend does Costigan bonds to actually passed Costigan title gift. If the accept securing the matter transfer the. gift, acceptance timely entirely Costigan between government records ruling Gosney in case rules think We government.”
1099 question Estate, here. also In re 893; See Diskin’s Atl. Under wood Underwood, App. 643, Ga. S. E. 725. validity question gift
On the of the registered of the bonds, donor, Weakley, absent endorsement of Grosfield cite Bank, v. First National Mont. Pac. Fowler, Decker v. *7 199 (2d) 254; Wash. 92 Pac. Patterson v. Citizens National 143 55 Bank, (2d) 352; Kan. Pac. In re Estate, Owens’ 32 N. Y. S.
In the Grosfield case bonds involved were stolen; in the Decker- case the bonds transferable; were not in the Patterson case the bonds were state soldiers’ by bonus bonds of Kansas, guard embezzled ian of minors. In the Owens’ case, Estate the bonds concerned were Baby Bonds, by authorized liberty the second act, 1917, bond e A., U. S. C. Sec. 752 et seq. Voluntary d. transfer prohibit was
The further contention plaintiff’s is made that instruction No. 5 ignores is bad because it a letter explanation by typed plaintiff’s signed by and Weakley husband 30, 1936, December ap proximately years and months after the execution $20,000 note March Weakley on Before sold the mortgage off he, farm in company his plaintiff’s with husband, Judge to Culver, prominent lawyer went see B. E. a of St. Joseph, Missouri, ascertain, according Judge to to evidence, Culver’s (Weakley) legally he could take back give the bonds plain Judge note. tiff his Culver testified that on that Weakley occasion given told him that he had and delivered the bonds to explained why he wanted to them back givé take note. his Judge Culver advised that such done, suggested could be that if the bonds were taken back “there would be probably no evidence he given had (plaintiff) ever them to her testify because she could not probably case of death and there should be something in writ ing, sitting my there at desk I off something'. scribbled As near given as I it recall was he had her these bonds and get, wanted to (back) pay the bonds to repay indebtedness giving her her a note and interest. I something do recall about some notes. It seemed borrowed from money he her little from time to time. . I think . . this statement went on to get he wanted. e back paying these bonds use in off owed; indebtedness he that h give note, possibly would payable year. her in a I would repay certain as to her $20,000.00 that —to the amount. my recol the amount and lection of the note towas bear interest. I am not sure put whether I that in or I don’t recall agreement what the not.. pay and he her to interest back with something as interest and about these other notes.” Judge prepared, according
What Culver .plain evidence of husband, form, Weakley was in letter tiff’s plaintiff. Mr. husband) (plaintiff’s Atchison testified that when he Weak and Mr.
ley day returned home from Joseph, Judge St. on the Culver advised them, day sold, Judge copied bonds were what Culver prepared had night, and that on that executed $20,000 delivered the signed note and and delivered to copied letter by him from what Judge Culver had written. At the time execution of the 3 other note held Weakley’s, small given money notes of which were to her for loaned. On 13, 1936, $1050, June the amount then due on small notes was Weakley and on that date up gave plaintiff took the small notes and the $1050 which is note on in the sued first count of petition, involved, but not here According stated. husband, at the time of the execution of note, $1050 said: “I must write letter another because conditions have changed; instead having $20,000, notes, you only two or three little have two.” may What explanation be termed the first letter of was returned to executed, $1050 when the note was but he not write 30, 1936, another letter December until some six after the months may execution of the note. What $1050 termed the letter second *8 explanation follows:
“Gower, Missouri “December “Mrs. Ada Atchison
“Gower, Missouri
“My dear niece: my attorney may fully you
“On the advice of and order that provision you, understand what I have I explaining made for am it writing. gave you twenty
“The (20,000.00) note I thousand March dollars in 1, 1934, (italics ours). my You gift also note for was all have fifty you (1050.00) which me one thousand dollars loaned dated you (1000.00) addition have left one June In to this I my you pay thousand will. I will continue to interest dollars fifty I thousand and dollar note while live. the one my my you (20,000.00) will collect from “At death estate the twenty fifty dollar note and one thousand and thousand dollar you due, and the one thousand also left with then interest my will. Weakley.”
“J. R Weakley that testified dictated the letter husband Plaintiff’s typewriter (Weakley) signed and he “copied on him and that he part was asked about italicized of the Judge it.” Culver way.” it don’t believe I wrote letter, “I and said: ignored 5 complaint that instruction letter supporting As Van Simpson Laningham, cite v. explanation, defendants Schroeder, 324; Trautman v. App. Mo. 183 W. Mo. Lemp al., (2d) 303; 46 S. W. (2d) Trautz 93 S. Daniels, Jordon App. 1052. It will not necessary to.analyze these eases. sup Neither of them ports the contention that instruction 5 is bad because it does not tie up say with the suggest way letter. Defendants do not in what or manner instruction 5 have referred to the should letter. “argu-
Defendants instruction 5 No. is form, mentative facts, theory assumes and eliminates defendants’ Manifestly, the facts.” there is no substantial merit com- plaint.
Defendant’s refused No. 4 instruction follows: “The are though they may instructed that even find from evidence Weakley $20,000.00 John R. signed and executed the note sued on in yet, you plaintiff’s petition, the second count of if further find Weakley was no therefor, there consideration and that re said therefor, gift, that, ceived no bonds and that said note was all a at signed executed, said note was, the time if under it it was agreed Weakley stood between the said Atchison, A. Ada that said to be until after the note was not then, law, death of said R. under John said note your you null and if void, and, be, the facts to verdict so find will against count defendants and on the second petition $20,000.00 and on note sued oh therein.” ’ gave The court follows: instructions “ may (3) though you find from are instructed that even $20,000.00 signed the evidence that and. executed the yet, you on in plaintiff’s petition, note sued count of the second therefor, further find that was no there consideration then, under the therefor, said John received no be, your void, law, note is null and and if so find the facts to said against will be verdict defendants and *9 $20,000.00 note count sued second of and on petition, ’’ therein. “ plain- (6) jury upon burden The are instructed that the is evidence in by weight all the prove greater tiff of credible alleged jury, ease, the reasonable satisfaction given to gift $19,000.00 registered U. S. were claimed or December, by her, plaintiff, the said finds that upon a the evidence the and if consideration all weight by greater fact, fact, said plaintiff has not it shown this issue evidence, should find preponderance then in favor the defendant estate.” against instruction everything in defendants’ refused will be noted that It 6, when by.defendants’ given instructions 3 and is, effect, covered paid until was not to be together, except the note considered Weakley’s death. after show, tends to ease $20,000 If the was executed as note consequence found, and the then it would Baird, Weakley’s Maze death. until after
note was not to be App. Robbins, 348; v. Estate of App. Robbins S., p. 236; 10 J. C. c. Sec. 400; l. S. W. C. J. 281. Jur., Notes, p. 8 Am. Bills and Sec. Sec. instructions- refusal of defendants’ Complaint made on the is passing on the jury that in These, told the respectively, 5-and 7. gift made a signed the question as whether and circumstances all the facts to “take into consideration of the bonds in evidence.” alleged shown transaction and connection with such giving was within cautionary, their instructions are These any Certainly jury was not discretion of the court. sound re evidence way of defendants’ limited in the consideration fusal of these instructions. assignment hostile merit to
There is no defendants and their counsel. attitude of court towards ordered. and Van be affirmed it is so Dalton judgment should CC., Osdol, concur. foregoing Bradley, C., adopted opinion
PER CURIAM:—The judges All court. concur. opinion as the Unemploy Milling Company, Corporation, Appellant, M. F. A. Compensation and Otto of Missouri ment Commission 38318. 169 W. Muggelberg, Respondents. No. One, April 6, Division notes executed Plaintiff J. R. de- substantially at the second trial The evidence ceased. as it was necessary to The facts understand in the first. the case are suc- prior opinion adopt and we cinctly in the them stated here: seventy-nine after age an only of illness of “At a few January 20, 1937, at the home died days, Weakley plaintiif, where years. He was widower for four only and left he had resided col- Weakley’s a niece of Plaintiff was wife. lateral heirs. 6, “There was tending evidence Dec. Weak- show that on to ley gave $14,000. bonds plaintiff to Dec. the value of On gave $5,000. he also bonds to her the value of Plaintiff’s placed safety husband box deposit in the First bonds Weakley Joseph. National Bank of St. At the time owned several $16,000 (loan). farms. He owed a balance of a farm On Jan. on charged he was informed that he to re- would commission new Thereafter, the loan. to not plaintiff he that he did stated renewal pay per loan; five cent commission for a want to doing many years had been he with the broker for business just charge that it not to him for the renewal. He also that, buy them legal, stated he would from sell plaintiff, the bonds money pay use to the loan on said farm. He stated also give plaintiff $20,000 he bonds. payment would his note for for the Weakley legal advice, plaintiff plaintiff After obtained sold $20,000. Weak- to The bonds were delivered to bonds ley, dated March who delivered to proceeds paid and from the indebtedness sold on the farm.” assigned argument counsel; (1) alleged improper Error on (2) 5; (3) defend- on instructions 3 and on the refusal of (4) attitude ants’ 5 and hostile instructions and their counsel.” “towards argu argument Ewing opened Mr. and his argument Ewing outset of his Mr. appears the record. At the ment (deceased) “they in and he didn’t (defendants) come said'that Immediately following signing.” statement know what he was this to case without “Then, are decide record shows: testify case; hearing in the since defendant or benefit of living person between a now deceased and this was a transaction argument object : We to (interrupting) any person DuBois —Mr. say objection permit will him to overruled. I on that. The Court: — discharged. He object ask that DuBois: Mr. testify right not a argue the woman has right has no woman Ewing (continuing): have seen this You Mr. (exception). only a but I days; her, chance to observe last three during the really community think people what in that find out a chance to think for the first fit attend court her executor saw about stand, going trial, when it came witness days two good reason pretty I think a up. show he didn’t reason for some have stand is he would had go on the witness why want to didn’t