111 Mo. App. 717 | Mo. Ct. App. | 1905
William Peters died testate in the county of St. Charles, Missouri. The respondent is the executor of his last will. The seventh clause of the will is as follows:
“All the rest, residue and remainder of my estate of every kind and nature and description, both real and personal and mixed, I give, devise and bequeath in equal parts, share and share alike, to my remaining seven children, to-wit: Henry Peters, Edward Peters, Annie Barnhop, Mollie Berkmeir, Katie Kessler, Clara Painter and Lizzie Painter.”
Prior to the commencement of this proceeding, the executor, out of the estate, made the following distributions to six of the heirs named in the will, to-wit:
“To Henry Peters, on the 2d day of February, 1900 ..............................$ 3,000
To Edward Peters, on the 1st day of June, 1897 4,100
To Lizzie Painter, on the 2d day of February, 1900 ..................................3,000
To Annie Barnhap, on the 6th day of February, 1897, $2,880, and on the 4th day of August, 1899, $245, total,.................... 3,125
To Katie Kessler, on May 11th, 1897, $1,665, and ■ on the 2nd day of February, 1900, $1,335,*719 total.............................. 3,000
To Clara Painter on June 1, 1897, $1245.50, and on February 2, 1900, $1754.50, total........3,000
$19,225.”
The respondent filed her petition, in the probate court of St. Charles county, for an order on the appellant to require him to pay to her her share of the estate. The probate court made an order on appellant to pay respondent twenty-seven hundred dollars, from which an appeal was taken to the circuit court. On a trial anew in the circuit court, it was found by the court that respondent’s distributive share in the personal estate of the testator .was thirty-five hundred dollars, and judgment was rendered accordingly from which the executor duly appealed. At the trial the appellant interposed as a defense evidence showing that in 1896, William Peters signed and acknowledged a deed conveying to the husband or respondent (Benj. Berkmeir) one hundred and sixty acres of land situated in St. Charles county, in consideration, as expressed in the deed,' of one dollar and love and affection. The deed was not delivered by William Peters to Berkmeir nor was it found among Peters’ papers after his death, but was received by the executor from C. J. Walker, Esq. After getting possession of the deed, the appellant delivered it to Benj. Berkmeir and it was placed of record.
Appellant testified that Berkmeir and his wife both stated to him that they were to pay three thousand dollars for the land described in the deed, and agreed that as soon as it was ascertained what their distributive share in the estate would be, they would receipt the executor for the same and pay the balance, if any, and in the spring of 1897, after this agreement was made, Benj. Berkmeir paid him one hundred and fifty dollars, as interest on the three thousand dollars due for the land, but afterwards Berkmeir refused to give a receipt for his wife’s share of the estate to be applied as
2. Appellant’s last settlement shows a balance of $2844.50 then in his hands as executor. It is contended by appellant that the court erred in rendering a judgment in excess of this amount. The court found that all debts of the estate had been fully paid. The larger part of the legacies paid to the other six legatees -were paid in 1897 and there is no reason shown, why respond