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(218 8.W.) City of Aurora, 139 Mo. App. 597, 123 S. W. (L. S. Comp. St. $8 8657–8665), given by the 1015, that a denial, not being verified by Supreme Court of the United States, in the affidavit, did not put in issue the execution of case of Seaboard Air Line v. Tilghman, 237 the release, where it was not claimed any U. S. loc. cit. 501, 35 Sup. Ct. 653, 59 L. Ed. fraud was practiced upon the plaintiff who 1069. Finding no error in the record, the sought to have the release set aside. An ex- commissioner recommends that the judgment mination of the statute above referred to, as of the trial court be affirmed. well as the decisions of our courts, leads us to the conclusion that it was not intended

PER CURIAM. The foregoing opinion of by said statute to require verification of a NIPPER, C., is adopted as the opinion of denial or a reply in cases of this kind, in the court. order that the defense of fraud, especially as The judgment of the circuit court is acto the inducement, may be interposed, but cordingly affirmed. is only intended to mean, and so states, that in case there is no verification, “the execu

REYNOLDS, P. J., and ALLEN and tion of such instrument shall be adjudged

BECKER, JJ., concur. confessed."

As stated in the case of Fenn v. Reber, 153 Mo. App. loc. cit. 235, 132 S. W. 632:

"Even in a case where the maker of a note has failed to deny its execution under oath and has admitted its execution, its legality is open NEWELL, Public Administrator, v. KERN. to contest without a denial of the execution of

(No. 15855.) the note, verified by affidavit. Wells v. Hobson, 91 Mo. App. 379. It is held in Johnson (St. Louis Court of Appeals. Missouri. Argued v. Woodmen of the World, 119 Mo. App. 98, and Submitted Jan. 9, 1920. Opinion Filed 95 S. W. 951, that though the execution of a Feb. 3, 1920. Rehearing Denied Feb. 19, contract

• is not denied, it is open to 1920.) the defendant to prove that it never existed, or that the consideration for it had failed.” 1. WILLS 673-DEVISE CONSTRUED TO GIVE

ABSOLUTE TITLE TO PERSONALTY [2] We are of the opinion that defendant PRESSED WITH TRUST FOR CHILDREN. was not entitled to judgment on the plead Under a will providing that after the death ings. Plaintiff admits the execution of the of testator's wife “the balance of my personal release set out in the defendant's answer, property, as well as the proceeds of rents and but if its execution was induced or obtained leases of my estate, shall pass to my daughter, under the circumstances claimed in his reply,

or be applied and used for the educathen there was fraud of such character as tion of her child or children if she should have to render the release void, and such defense any,” absolute title to the personalty passed to

the daughter, not impressed with any trust for may be made even though the reply is not her children, and it became assets of her estate. verified and the execution of the release confessed. Hammerslough v. Cheatham, 84 Mo. 2. WILLS 472–FIRST PROVISION PREVAILS 13; Fenn v. Reber, supra, 153 Mo. App. 219, OVER LAST. 132 S. W. 627. In this case, fraud in the in The first provision of a will prevails over ducement is alleged in plaintiff's reply, and, the last. if plaintiff's testimony is to be considered, there were sufficient facts upon which to sub' 3. EXECUTORS AND ADMINISTRATORS uw 85(3)

-PUBLIC ADMINISTRATOR MAY RECOVER CONmit this theory of the case to the jury. As

OEALED PROPERTY WITHOUT IDENTIFYING IT. was said in Hubbard v. Lusk et al., 181 S.

Under Rev. St. 1909, $ 70, and in view of W. loc. cit. 1030:

section 73, the specific property alleged by the “The law will give aid to the unfortunate public administrator to have been detained, conwhose ignorance and necessities have been cealed, or held out need not be identified to enmade the means of an unfair or unjust con- able him to recover it. tract."

4. EXECUTORS AND ADMINISTRATORS C85 (6) [3] Appellant further objects to the giving EVIDENCE AS TO EXCLUDED SON'S CONSENT of plaintiff's instruction No. 5, but we find TO DIVISION OF PERSONALTY OF MOTHER'S this objection without merit. The jury are

ESTATE HELD A QUESTION FOR THE JURY. told in instruction No. 1 what they must tind

In a proceeding by a public administrator before they can find for the plaintiff. In

under Rev. St. 1909, $ 70, for discovery of asstruction No. 5 tells them that if they do sets which had been divided between defendant

and his brother and sisters, evidence as to find for the plaintiff and find him guilty of whether another brother had consented to the contributory negligence, they will, in assess-division, and as to whether, while confined in ing his damages, etc. This is a correct in- | the penitentiary, he had been informed by destruction, and is in conformity with the in- fendant of the division, or had assented to it, terpretation of the Employers' Liability Act | held to make a question for the jury.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

5. EXECUTORS AND ADMINISTRATORS 85(6) , over and deliver to the administrator the -INTEREST IS ALLOWABLE ON PUBLIC AD

sum of $219.47, and that defendant pay the MINISTRATOR'S RECOVERY OF CONCEALED A8- costs. On an appeal to the circuit court and SETS.

a trial there, a jury being waived, the court In a proceeding by the public administrator found against the defendant in the sum of against defendant and son of the intestate, who $219.41, principal, and interest on it at the had received a share in the division of her per rate of 6 per cent. from August 1, 1912, in. sonalty for the discovery of assets, interest on the recovery was allowable under Rev. St. 1909, terest amounting to $62.53, a total of $281.94, $ 7179, where it appeared that defendant had for which judgment was entered and from unlawfully withheld assets.

which judgment defendant John J. Kern has

duly appealed. Appeal from St. Louis Circuit Court; VI. The proceeding appears to have been intal W. Garesche, Judge.

stituted January 4, 1916, that appearing to "Not to be officially published.”

be the date when the affidavit of the adminProceeding by James P. Newell, Public Ad-istrator, charging defendant with concealministrator, in charge of the estate of Mary Kern died October 23, 1911. There was evi

ment of assets, was filed. Mrs. Mary A. A. Kern, deceased, against John J. Kern. dence to the effect that the balance of the Judgment for plaintiff, and defendant ap- estate of Mrs. Kern was of the net value of peals. Affirmed.

$5,988.26, which was divided among two sisW. F. Heideman, of St. Louis, for appel- ters, a brother Gustavus, and defendant, John lant.

J. Kern, each party receiving a fourth, and Seebert G. Jones and Foster H. Brown, each of the parties contributing $100, which both of St. Louis, for respondent.

was put in bank for account of George Kern

upon his release from the penitentiary where REYNOLDS, P. J. This is a proceeding he was confined. There is no complaint under section 70, Revised Statutes 1909, by made that the judgment is erroneous in the administrator of the estate of Mary A. amount, if there should be any judgment at Kern, for the discovery of assets, as it is all, save as to the amount of interest, the commonly called. Citation was duly issued right to which, but not the amount thereof, and interrogatories filed, to which the defend- being disputed by the appellant. It is to be ant, John J. Kern, filed his answer, denying, assumed that the interest was calculated generally and specifically, that he had any from the date upon which it was in evidence property belonging to the estate of deceased that the money, assets, etc., came into the in his hands; admits that the administrator hands of the defendant, assuming correct acmade a demand on him for whatever prop-tion on the part of the trial court, in the aberty belonging to the estate of Mary A. Kern

sence of anything to the contrary appearing. that had come into his hands in 1902, but

The administrator of Mrs. Mary A. Kern's avers that he did not refuse to deliver to estate was not appointed until November the administrator any such property, contending that the administrator had no legal her son, on January 4, 1916, the estate was

18th, 1915, when, on petition of George Kern, right to the possession or control of any per: ordered into the hands of the public adminsonal property found after the demise of Mary A. Kern, which, presumably, had been istrator, who, as such, then took charge and in her possession during her lifetime, be instituted this proceeding. cause, first, whatever that property consisted

It is practically conceded by all parties of was not owned by her but was derived that at the time the four children of Mrs. from property given to her in trust for her Mary Kern made distribution of her estate children, including respondent, by the last among themselves, the total value will and testament of respondent's grand- | $6690.26, and consisted of money, stocks, father, the father of Mrs. Mary A. Kern; and, bonds, and notes, with no debts and no out. secondly, that the personal property or pro standing claims, and that an administrator ceeds thereof had long since been distributed / was not then necessary. The gravamen of this among all the parties entitled thereto, that present action proceeds on the theory that is to say, her children, including the re- George Kern, one of the five heirs, had not re spondent, and her husband, and that there ceived his proper proportion of his mother's were no debts of Mary A. Kern, deceased, to estate. The administrator brought this propay, no debts due her to be collected, at the ceeding to recover from John J. Kern about time of her death and at no time since her one-fifth of the share John had received; death, and no property, money, papers, or that is one-fourth of the whole net estate, other estate to be injured, wasted or lost that is to say one-fifth of $1497.06. The and it was unnecessary to administer on her property of which Mrs. Mary A. Kern died alleged estate.

possessed came to her under the provisions of On a trial of the cause before the Probate the will of her father, Clemenz Zimmerman.. Court that court ordered respondent to pay That will, probated February 11, 1875, in the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

was

(218 S.W.) Probate Court of the city of St. Louis, after | law, he received nothing from his mother's providing for the payment of his debts and estate. funeral expenses, proceeds:

[1, 2] It is earnestly contended by learned "I give and bequeath all my personal estate counsel for appellant that the provisions of to my beloved wife, Catharine Zimmerman, to the will of Clemenz Zimmerman put the peruse and dispose of the same, for her own benefit sonal property in Mrs. Mary Anna Kern, in and support during her lifetime, she, my said trust for her children, and that it did not bebeloved wife, Catharine, shall also, for her own come assets of her estate, It being claimed use and support, receive the proceeds of the that there is ambiguity as to the meaning of rents and leases of my real estate until her the instrument here, that the fact that all death, when the balance of my personal prop- the parties interested had acted thereon and erty, as well as the proceeds of rents and leases

made of my real estate, shall pass to my daughter, their acquiescence in what others were do

no complaint whatever, signifying Maria Anna Zimmerman, or be applied and used for the education of her child or children if she ing, clearly showed their understanding of should have any. The houses on my real estate it, and that continued for a long period of shall be kept in good order and repair, and may time, they are bound by their acquiescence be rebuilt if necessary.

in what others were doing. We do not un"All my real estate I give and bequeath to derstand this to be the fact here, nor a propthe child or children of my said daughter Maria

er construction of the will. The clause of Anna, if she should have any. Should my said the will quoted, after bequeathing all of his daughter Maria Anna have no children or issue, personal estate to his wife, Catharine, prothen, after her death, my real estate shall pass vided that on her death “the balance of my to my legal heirs.

"None of my real estate shall be sold until the personal property, as well as the proceeds of youngest child of my said daughter Maria Anna rents and leases of my real estate, shall pass is twenty-one years of age, and in case she to my daughter, Maria Anna Zimmerman, or should have no child or children, then '

my said be applied and used for the education of her real estate should not be sold during the life-child or children if she should have any." time of my said daughter, Maria Anna."

The first part of this undoubtedly vested an

absolute estate in the personalty, including His wife was appointed executrix.

rents, in Maria Anna Zimmerman. The othOn the death of her mother, Catharine, the er contingency, “or to be applied and used for daughter, later Mrs. Mary Anna Kern, ap- the education of her child or children,” was pears to have received the personalty. entirely inconsistent with that, and under Whether there was any real estate belonging the well known rules of construction, the to the testator at the time of his death does first provision prevails over the last. We not appear. On the death of her mother, think the correct reading and construction of Catharine, all the money, bonds, notes, etc., this clause is that all the personal property, to an amount not stated, came into the hands etc., shall pass to the daughter, Maria Anna of Mrs. Mary A. Kern and at her death they Zimmerman, or (interpolating, if she should were of the value of $6690.26 gross, or die before my wife, Catharine), be applied $5988.36 net. This is the amount testified to and used by the executrix for the education by the witnesses and appears in the memo- of her child or children, if she should have randum of the personal property found in any; or, reading it another way, if Maria the possession of Mrs. Mary Anna Kern after Anna should die leaving any of the personal her death and duly identified.

property undisposed of, it would, as the law The evidence in the case was to the effect directs, pass to her children through the exthat at the time of his mother's death ecutrix. Any other construction of the will George Kern was confined in the penitentia- would destroy its obvious intent. We think ry. After her death the two surviving sons that authority for this construction appears and two daughters, four of the five heirs, by the other provisions in the will, namely, met and distributed the estate among them that the real estate is to be kept in good orselves, making no provision for George but der and repair and may be rebuilt, if necesclaiming that his share had been paid out in sary. The fund out of which this was to be the expense connected with his trial. Under done was the fund which he had left to his what and by whose arrangement this was | daughter and undoubtedly it was with her to done, is not in evidence. It was apparently make the repairs and keep the realty in good paid out by the mother and not charged by order. When the testator wanted to provide her against George. It is in evidence, how- for his grandchildren, if any-children of his ever, that when the two brothers and two daughter Maria Anna-he had no trouble in sisters distributed the estate among them- writing into his will exactly what he wanted selves after the death of their mother, they to do, namely, that if Maria Anna should voluntarily placed $100 a piece, a total of have any child or children, the real estate $400 to the credit of George, to be paid to was to go to them. Should she have none, him when he was released from his contine- or no issue, then after her death the real esment. That, they testified, was a voluntary tate would pass to his legal heirs. We canpayment on their part, so in fact and in not construe this will in any other way than

as putting the absolute title to the personal | George Kern had consented to the division property in the daughter, Maria Anna. which was made and was present at the There is no evidence whatever to show that meeting at which that was agreed to, or that the parties ever treated it in any other way he afterwards assented to it with the knowlduring the lifetime of their mother. She was edge of what had been done. The evidence is not asked to account for it at any time or in very clear that at the time when this meeting any way by any proceeding, yet the four was alleged to have been held by the four children distinctly accepted what she had heirs, George was not present, being then in left at the time of her decease in the way of confinement. He most distinctly denies that personal property and undertook to divide it he had been informed, in a conversation with among themselves. This they had a right to his brother, John J. Kern, while in confine do, there being no debts or demands. But it ment, of the arrangement or assented to it. was to go to all five of the children and they That was a question between these two withad no right to exclude the son George from nesses. The testimony of George Kern that the distribution. It is for the share of he was not present at the meeting, is conGeorge Kern-one fifth-which went into the firmed by the testimony of one of his sisters hands of defendant, John J. Kern, that this and by all the facts in the case; and as to proceeding was instituted. Whether the oth the conversation or agreement alleged to have er heirs have refunded, or proceedings to re been had between him and John J. Kern quire them to do so have been instituted, is while George was in confinement, it was a not material and is not before us.

matter for the determination of the trial [3] It is objected that under section 70, as court as the finder of facts, and inquiry as to well as by section 73, of the Revised Stat- that is closed to us. utes 1909, the specific property alleged to

[6] The only question remaining is the have been detained, concealed or held out, award of interest. On this we have not be must be identified and awarded in specie, fore us the facts upon which the court based and that unless that has been done, the ad- the date for finding this interest, so we must ministrator cannot recover. That was an old doctrine of this state, but was disposed assume, as before said, that it had proper of to the contrary by our court in a very

data. The only question, therefore, remain

We learned and exhaustive opinion by Judge ing is whether interest is allowable. Goode In re Estate of Huffman, 132 Mo. App. think that under the provisions of our law, 44, 111 S. W. 848. That case proceeds upon the decision of our court in Lack v. Brecht,

section 7179, Revised Statutes 1909, and of the authority of the decision of our Supreme Court in Tygard v. Falor, 163 Mo. 234, 63 166 Mo. 242, loc. cit. 259, 65 S. W. 976, and S. W. 672. Later the decision of our court in following, interest was allowable under the the Huffman Case and of the Supreme Court statute. In the Lack Case, supra, a proceedin the Tygard Case was distinctly affirmed ing in the circuit court for conversion, no inby the Supreme Court in Clinton v. Clinton, terest was claimed but it was allowed. Here 223 Mo. 371, 123 S. W. 1, all of these cases

we have an unlawful withholding and conoverruling older decisions of the appellate version and we think interest was allowable, courts which had seemed to hold to the con

Finding no reversible error in the action of trary.

the trial court, its judgment is affirmed. [4] It is claimed in argument by learned counsel for the appellant that the claimant ALLEN and BECKER, JJ., concur.

(218 S.W.)

12. EXECUTORS AND ADMINISTRATORS 1864

ALLOWANCE TO WIDOW.
SHAW et al. v. GRIMES et al.

Where the widow, as one of the devisees (Court of Appeals of Kentucky. Nov. 7, 1919. under the will, was entitled to a one-third of Rehearing Denied and Opinion Modi the estate, it was not proper to make an allowfied March 12, 1920.)

ance to her in addition to the one-third in

terest. 1. WILLS 22–TESTAMENTARY CAPACITY AS

13. WILLS 762—INTEREST ON CREDITS IN TO PERSONALTY GOVERNED BY LAW OF DOM

ADJUSTMENT OF ADVANCEMENTS NOT ALLOWICILE.

ABLE. Testamentary capacity as to personalty is governed by the law of the testator's domicile, interest thereon, are to be charged against ben

Though, under the will, advancements, with and personalty should be distributed accordingly. eficiaries, no interest can be allowed on credits 2. WILLS Om70, 436-DEVISE OF REALTY GOV

to the beneficiaries, in the absence of a provi. ERXED BY LAW OF SITUS.

sion in the will. The effect and validity of a testamentary 14. WILLS C.762 INTEREST ON ADVANCEdisposition of real estate must be tested by the

MENTS EQUALIZED. lex rei sitæ.

Where the will charged the shares of bene3. COURTS 95(1)—NOT GOVERNED BY CON ficiaries with advancements, as shown by an acSTRUCTION OF ITS LAW IN ANOTHER STATE. count book, which fixed a date for commence

The courts of Kentucky are not bound by ment of interest on certain advancements later decisions of a court of another state involving than the date of the advancements, interest on real estate located in Kentucky.

advancements to other beneficiaries will not be 4. WILLS 762–INTEREST NOT CHARGEABLE charged before that date. ON ADVANCEMENTS. Where there is no provision in a will so

Appeal from Circuit Court, Meade County. providing, interest will not be charged on an Petition by Ava Loraine Shaw and Lyman advancement.

P. Shaw, Jr., by their guardian, the Louis5. WILLS C 762 INTEREST ON ADVANCE ville Trust Company, against Simon E. MENTS.

Grimes, executor of Josiah Shaw, deceased, Where a will mentioned advancements and and others. From an adverse judgment, the made reference to a certain book account, wherein it appeared that on a certain day the guardian appeals. On motion for rehearing, total of the items advanced was shown, im- reversed, and new trial ordered. mediately followed by the words, "and inst.,"

See, also, 174 Ky, 398, 192 S. W. 524. interest should be charged against such ad Shackelford Miller and Eugene Hubbard, vancements only from the date of such entry, both of Louisville, for appellants. and not on the separate items from the date

J. M. Richardson and J. D. Hardin, both each amount was advanced.

of Brandenburg, and E. C. O'Rear and J. B. 6. WILLS 761—BOOK ACCOUNT MENTIONED Adamson, both of Frankfort, for appellees.

IN WILL, SHOWING ADVANCEMENTS, ADMIS-
SIBLE.

QUIN, J. Josiah Shaw died testate on Where a will mentioned advancements and referred to a certain book account, the book the 31st day of December, 1913, a resident of was admissible in evidence to show what the Crawford county, Ind. At the time of his advancements were; the testator having a right death he owned certain real and personal to refer to such a book.

estate in said county. He was also the own7. PARTITION Om77(4)-SUFFICIENCY OF PETI

er of four farms in Meade county, Ky., con

taining 1,274 acres. By the terms of his A petition, stating that "said four tracts of will he devised his property, one-third each land are in their (devisees') possession, and to his wife, Carrie N. Shaw, a daughter, cannot be divided between them under and in Minnie E. Grimes (referred to in the will as accordance with and so as to meet the require- Minnie M. Grimes), and to his grandchildren, ments of the last will of said decedent without Ava Loraine Shaw and Lyman P. Shaw, Jr., materially impairing the value of said lands, i infant children of a deceased son, Lyman P. and without materially impairing the interests of each of the plaintiffs therein," was suffi- Shaw, said children taking the share of cient compliance with Civ. Code Prac. $ 490, their father. subsec. 2, relating to partition of land.

Simon E. Grimes, the husband of Minnie 8. PARTITION Ww77(4)-INDIVISIBILITY MUST

E. Grimes, nominated as executor of the will, BE AFFIRMATIVELY SHOWN.

duly qualified as such, and proceeded to adBefore a court orders a sale of real prop-minister upon the estate, both in Crawford erty in which infants have an interest for par-county, Ind., and Meade county, Ky. The tition, the necessity of the sale—that is, the present suit was filed by Simon E. Grimes, indivisibility of the property-must affirmatively appear.

as executor, Carrie N. Shaw and Minnie E. 9. PARTITION Om77(4)—EVIDENCE HELD NOT

Grimes and her husband as plaintiffs, for the

purpose of selling the property in Meade TO SHOW INDIVISIBILITY.

Testimony by two witnesses that the land county, and for a division of the proceeds, cannot be divided without impairing its value, after equalizing certain advancements made contradicted by one witness, is not a sufficient to the infants and their father and to Minshowing of indivisibility to authorize sale for nie E. Grimes. The infants Ava Loraine partition among three owners of a large tract Shaw and Lyman P. Shaw, Jr., were made purchased as four separate farms.

defendants. 10. EXECUTORS AND ADMINISTRATORS C325_ This case was referred to the commissionPERSONALTY MUST BE USED BEFORE REALTY er, who duly filed his report, judgment was TO EQUALIZE ADVANCEMENT.

entered, the property sold, and a division Before a division or sale of the real estate is made among those entitled thereto, Minnie ordered to equalize advancements to some of the beneficiaries, the personalty must be exhausted.

E. Grimes and the infants being charged 11. INFANTS 37, 40-SALE OF LANDS STAT

with certain advancements, together with

interest thereon, from the dates of the severThe power to sell lands of infants is pure al advancements to January 1, 1914. Simon ly, statutory, and if the statute is not com E. Grimes became the purchaser of the four plied with a sale is void.

farms at the price of $71,400.

TION.

UTORY.

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