Gray v. Doubikin

179 Mo. App. 240 | Mo. Ct. App. | 1914

ELLISON, P. J.

Defendant is administrator of ¡his deceased father’s estate and plaintiff is defendant’s •sister and one of several heirs of deceased’s estate. The deceased owned ten shares of stock in the Farmers and Traders Bank of Iberia, for which he held two certificates for five shares each. He was sorely afflicted and had determined to go to St. Louis for the purpose of having an operation performed by surgeons. He thought probably he would die before his return and assigned to defendant the two certificates of stock; and, perhaps the next day, went to St. Lonis where he died within two or three days after his arrival.

Defendant claims the certificates were a gift causa mortis, and that upon his father’s death he became the owner. The complainant claims that the certificates were merely assigned to defendant to “look after” while deceased was absent in St. Louis and if he died while there, to be divided among the heirs with other-personalty.

Defendant, as administrator, did not inventory the certificates as a part of the estate and this proceeding was begun in the probate court of Miller county under the statute (Sec. 74, R. S. 1909) to compel him to-inventory the certificates and cause them to be appraised as property of the estate. After a trial in the-circuit court on appeal from the probate court by the defendant administrator, the following verdict was returned and the following judgment entered thereon: “Now comes the jury and returns into open court the following verdict to-wit: ‘We, the jury, find the issues for the complainant that complainant have judgment for five shares of the bank stock described in the suit; and that the defendant is the owner of five shares of the stock and that the defendant pay the cost of this-suit.

“ ‘E. A. Becker, Foreman.’

“Whereupon it is considered, ordered and adjudged by the court that the complainant herein have five (5) shares of the bank stock described in this suit and that defendant have five- (5) shares of said stock and that the costs of this suit be taxed to defendant and that execution issue therefor. ’ ’

The verdict was not justified by the evidence and. the judgment is not justified by the law. Under the interrogatories, the answers thereto by defendant, considered with the other evidence, the verdict should have found in favor of defendant for both certificates, or against him for both, according as the jury, after hearing the evidence, may have disbelieved or believed such evidence when considered in connection with his answer to the interrogatories. The judgment gave one of the certificates to the complainant, who was only one of several heirs entitled to the estate. There was no authority for this. Under the statute (Sec. 74, R. S. 1909), if the finding is against the administrator the judgment should be that he is not entitled to the property claimed by him; that it was the property of the estate, and should direct him to inventory it and to cause it to be appraised and held and accounted for by him as administrator.

The judgment is reversed and the cause remanded.

All concur.