243 S.W. 315 | Mo. | 1922
This is a proceeding under Sections 62, 63, 64 and 65, Revised Statutes 1919, and was begun in the Probate Court of Dunklin County by W.F. Sexton, a son of R.E. Sexton, deceased, to compel Shirley L. Sexton, a brother of complainant, to deliver to R.E. Sexton's administratrix certain property alleged to belong to the estate in her charge. Interrogatories were propounded. An answer to the affidavit and citation was filed, and answers to the interrogatories were made. The matter was heard in the probate court and a finding made and judgment rendered for respondent. An appeal was duly taken by W.F. Sexton to the circuit court. Thereafter, W.F. Sexton died and his administratrix was substituted. The matter came on for hearing, a jury was waived, the evidence was heard and and judgment rendered for respondent. An appeal was taken to the Springfield Court of Appeals, which transferred the cause here because the property claimed was alleged to be of a value greater than $7500, exclusive of interest and costs.
The property in question consists of a stock of general merchandise; $1036, on deposit in the Bank of Malden, and "notes, mortgages, deed of trust and other evidences of debt of the value of $1,000." The affidavit also sets up that Mrs. Patty Sexton, widow, was the duly appointed and qualified administratrix of R.E. Sexton, and that deceased left four children — W.F. *139 Sexton, Hazel Sexton Cook, Shirley L. Sexton and Pansy Sexton Bailey; that the administratrix had filed her inventory and appraisement of the personalty of the estate, but had "wholly failed and refused to inventory as assets of the estate of R.E. Sexton, deceased, any of the above decribed personal property;" that immediately upon the death of R.E. Sexton, on November 23, 1917, Shirley L. Sexton took into his possession and control all of the personalty in question and has ever since wrongfully retained and kept it; that "since the death of said R.E. Sexton, deceased, the said Shirley L. Sexton has operated the store in his own name, has converted the proceeds derived from the sale of the goods, wares and merchandise to his own use, has converted the $1036 in cash in the Bank of Malden, Missouri, to his own use; and has collected some of the notes and accounts due and owing to said R.E. Sexton, deceased, at the time of his death, and converted the same to his own use;" that the property described belongs to R.E. Sexton's estate and should be inventoried as assets thereof, together with income and profits therefrom, "allowing all reasonable compensation to the said Shirley L. Sexton for the management and control of said store." The prayer is for a citation which shall command Shirley L. Sexton to turn the property in question over to the administratrix and produce his accounts showing income and profits and the like, and requiring him to answer annexed interrogatories, and a further prayer that all the property described be ordered into the hands of the administratrix for distribution among the heirs in accordance with law. This was sworn to. A citation issued.
In due time defendant filed an "answer to petition and citation" in which he denied that R.E. Sexton at the time of his death was seized or possessed of any of the personalty described in the affidavit, and averred that R.E. Sexton had, prior to his death, "sold, assigned and transferred" all the property in question to him, *140 the respondent. This was accompanied by answers to the interrogatories submitted. The answer is sworn to and gives the details of respondent's claim, and sets out a writing, signed by R.E. Sexton, upon which respondent's claim is in large part founded. It also contains denials of the charge that respondent had wrongfully taken and wrongfully withholds the property. The interrogatories carefully avoided any question calling for information concerning the transaction under which respondent claims.
On the trial in the circuit court it was admitted that the cause had been duly revived in the name of the administratrix of W.F. Sexton. The interrogatories and answers thereto were offered, and several witnesses were called. There was evidence that respondent had worked in his father's store about eight years, and that for about a year before the father died he had conducted the business. He received a salary, the amount of which is not stated. About November 1, 1917, R.E. Sexton approached Henry Anderson with a proposition to sell him his stock of goods. He said he desired to go into the cotton-buying business. After some negotiations Sexton and Anderson reached the point at which they agreed upon a price. The matter was not closed, but Anderson testifies Sexton told him that when he (Anderson) "got ready, to come in and let him [Sexton] know." Subsequently Anderson went to see Sexton to close the trade, and Sexton told him, "The trade is all off. I have sold to Shirley." This was several days before Sexton's death.
Mr. Elery Zimmerman, the cashier of the Bank of Malden, testified that in November, 1917, R.E. Sexton had about $2,000 in that bank; that he withdrew $1,000, and left a balance of $1036; that later in the same month R.E. Sexton showed him the following instrument:
"Malden, Mo. 11/20/1917.
"This is to certify:
"In consideration of One Dollar, I hereby transfer my stock of goods, also all funds in Malden, Mo., *141 to Shirley L. Sexton, my son. Also One Thousand Dollars in cash in Bank of Malden, Mo., in consideration said Shirley L. Sexton pay all debts which R.E. Sexton may owe. Its also further agreed that the said Shirley L. Sexton pay Patty Sexton the sum of Thirty Dollars months rent on store — on rent store house and keep up insurance and taxes on store house its also understood that Patty Sexton shall occupy residence in Block Six in Phillips Addition to the town of Malden. It is also understood S.L. Sexton shall keep paid up premiums on New York Life Insurance. Its further agreed by R.E. Sexton in case should live until policy in New York Life matures said R.E. Sexton will reimburse S.L. Sexton for premiums and interest on above premiums paid to New York Life Ins. Co., on R.E. Sexton life insurance.
"R.E. SEXTON."
Zimmerman testified that Sexton was in the bank and, among other things, said: "`There is a chance that I don't aim to remain on this earth long, and I want everything up in shape,' so that in case he was to die that everything would be all right, and he says `Now, then, here is Shirley,' he says `he has aided me all along in the accumulation of the money, and has always stayed on the job,' and says `It is no more than right that this should be turned over to him' and says `he is a boy that stays at home all the time, and if I turn this over to him he aims to take care of my wife.'"
It is both proved and admitted that the writing set out above was mailed by R.E. Sexton to respondent and received by the latter November 20, 1917. There is evidence that respondent immediately took over the store and has operated it ever since. He paid one bill on November 22, 1917. This was paid by a check on the Bank of Malden, signed, "R.E. Sexton, by Shirley L. Sexton." The bank account was in the name of R.E. Sexton. Respondent had drawn some checks the same way theretofore. R.E. Sexton died November 23, 1917. *142 Subsequently respondent paid debts of R.E. Sexton amounting to more than $3800. In doing this he checked out the balance of the $1036 in the Bank of Malden, and his checks were honored without question. He paid taxes and insurance on the realty which had accrued prior to R.E. Sexton's death. He complied with the writing in all respects. The widow of R.E. Sexton, as his administratrix, did not inventory any of the property in question in this proceeding. The issues were submitted to the trial court sitting as a jury. No declarations of law were asked or given. No request for a finding of facts or a finding as a matter of law was made. The court found for the respondent on the evidence. Appellant presents several questions for decision.
I. The proceeding is "a suit or action" and in it the right to the property involved is required to be tried by a jury or by the court if a jury is waived (Sec. 65, R.S. 1919; Clinton v. Clinton, 223 Mo. l.c. 382, et seq.; In re Estate ofAction Huffman,
II. Since no declarations of law were asked or given and no procedural errors are assigned, the judgment mustSustainable on be affirmed if there appears any correct legalAny Theory. theory which is supported by substantial evidence. *143
III. The question therefore is whether there is substantial evidence that the property in question is the property of Shirley L. Sexton, and not the property of the estate of R.E. Sexton. In determining this question, as presented in thisCredibility of case, in view of what is said in the precedingWitnesses: paragraphs, it is to be kept in mind that theWeight of credibility of the witnesses (Hebenheimer v. CityEvidence. of St. Louis,
IV. It is insisted by appellant that the writing offered by respondent is merely a proposal and that no acceptance was shown to have occurred before the death of R.E. Sexton. This is not the only reasonable theory of the evidence. There was positive testimony by disinterested witnesses that R.E. Sexton, a very short time before his death, stated unqualifiedly that he "hadsold to Shirley." Sexton's conversation with Mr. Zimmerman tended to show the same thing or an intent to sell to respondent. The trial court would have been justified in finding that this last antedated the conversation with Anderson. The writing is not in the form of a proposal. It purports to state a transaction, for a named consideration. It is complete in every respect. The trial court was justified in finding that it was the written evidence of the sale R.E. Sexton told Anderson he had made to Shirley. All concerned acted upon the theory of a valid transfer for more than a year after *144 Sexton's death. Respondent took the store and operated it as his own; paid his father's debts and carried out the other terms of agreement as expressed in the writing. The Bank of Malden paid out the $1036 on Shirley Sexton's checks. R.E. Sexton had, in substance, told its cashier he was about to turn the property over to Shirley. The administratrix recognized the validity of the transfer and did not inventory the property. The creditors of R.E. Sexton got their money from Shirley Sexton. All of this happened before this proceeding was begun. Shirley Sexton was not competent to testify to the agreement with his father, and his testimony was excluded. This would not supply a lack of evidence, but tends to explain the want of more direct evidence. On the whole record it cannot be said there was no substantial evidence of a valid transfer of the property by R.E. Sexton to Shirley L. Sexton. It cannot be said as a matter of law the court was bound to find the writing signed by R.E. Sexton was a mere proposal and that there was no timely acceptance of it. Under the rules already stated it must be assumed the trial court rejected the theory now advanced by appellant. The evidence justified that course. This renders it unnecessary to investigate the law concerning proposals and acceptances. The judgment is affirmed.Graves and Elder, JJ., concur.
