(218 8.W.)

City of Aurora, 139 Mo. App. 597, 123 S. W. 1045, that a denial, not being verified by affidavit, did not put in issue the execution of the release, where it was not claimed any fraud was practiced upon the plaintiff who sought to have the release set aside. An exmination of the statute above referred to, as well as the decisions of our courts, leads us to the conclusion that it was not intended by said statute to require verification of a denial or a reply in cases of this kind, in order that the defense of fraud, especially as to the inducement, may be interposed, but is only intended to mean, and so states, that in case there is no verification, "the execution of such instrument shall be adjudged 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 to contest without a denial of the execution of the note, verified by affidavit. Wells v. Hobson, 91 Mo. App. 379. It is held in Johnson v. Woodmen of the World, 119 Mo. App. 98, 95 S. W. 951, that though the execution of a contract * * is not denied, it is open to the defendant to prove that it never existed, or that the consideration for it had failed."

[2] We are of the opinion that defendant was not entitled to judgment on the pleadings. Plaintiff admits the execution of the release set out in the defendant's answer, but if its execution was induced or obtained under the circumstances claimed in his reply,

then there was fraud of such character as

Under a will providing that after the death of testator's wife "the balance of my personal property, as well as the proceeds of rents and leases of my estate, shall pass to my daughter, tion of her child or children if she should have or be applied and used for the educaany," absolute title to the personalty passed to the daughter, not impressed with any trust for her children, and it became assets of her estate.

OVER LAST.

to render the release void, and such defense may be made even though the reply is not 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, 132 S. W. 627. In this case, fraud in the inducement is alleged in plaintiff's reply, and, if plaintiff's testimony is to be considered, there were sufficient facts upon which to submit this theory of the case to the jury. was said in Hubbard v. Lusk et al., 181 S. W. loc. cit. 1030:

The first provision of a will prevails over the last.

3. EXECUTORS AND ADMINISTRATORS 85(3)
-PUBLIC ADMINISTRATOR MAY RECOVER CON-
As
CEALED PROPERTY WITHOUT IDENTIFYING IT.

"The law will give aid to the unfortunate whose ignorance and necessities have been made the means of an unfair or unjust contract."

[3] Appellant further objects to the giving of plaintiff's instruction No. 5, but we find this objection without merit. The jury are told in instruction No. 1 what they must find before they can find for the plaintiff. Instruction No. 5 tells them that if they do find for the plaintiff and find him guilty of contributory negligence, they will, in assessing his damages, etc. This is a correct instruction, and is in conformity with the interpretation of the Employers' Liability Act

Under Rev. St. 1909, § 70, and in view of section 73, the specific property alleged by the public administrator to have been detained, concealed, or held out need not be identified to enable him to recover it.

EVIDENCE AS TO EXCLUDED SON'S CONSENT
ΤΟ DIVISION OF PERSONALTY OF MOTHER'S
ESTATE HELD A QUESTION FOR THE JURY.

In a proceeding by a public administrator under Rev. St. 1909, § 70, for discovery of assets which had been divided between defendant and his brother and sisters, evidence as to whether another brother had consented to the division, and as to whether, while confined in the penitentiary, he had been informed by defendant of the division, or had assented to it, 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 ADMINISTRATOR'S RECOVERY OF CONCEALED AS

SETS.

sum of $219.47, and that defendant pay the costs. On an appeal to the circuit court and 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, insonalty for the discovery of assets, interest on the recovery was allowable under Rev. St. 1909, § 7179, where it appeared that defendant had unlawfully withheld assets.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

"Not to be officially published."

Proceeding by James P. Newell, Public Administrator, in charge of the estate of Mary A. Kern, deceased, against John J. Kern. Judgment for plaintiff, and defendant appeals. Affirmed.

terest amounting to $62.53, a total of $281.94, for which judgment was entered and from which judgment defendant John J. Kern has duly appealed.

The proceeding appears to have been instituted January 4, 1916, that appearing to be the date when the affidavit of the admin

istrator, charging defendant with conceal-
ment of assets, was filed.
Kern died October 23, 1911. There was evi-
Mrs. Mary A.
dence to the effect that the balance of the
estate of Mrs. Kern was of the net value of
$5,988.26, which was divided among two sis-

W. 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.

REYNOLDS, P. J. This is a proceeding under section 70, Revised Statutes 1909, by the administrator of the estate of Mary A. Kern, for the discovery of assets, as it is commonly called. Citation was duly issued and interrogatories filed, to which the defendant, John J. Kern, filed his answer, denying, generally and specifically, that he had any property belonging to the estate of deceased in his hands; admits that the administrator made a demand on him for whatever property belonging to the estate of Mary A. Kern that had come into his hands in 1902, but avers that he did not refuse to deliver to the administrator any such property, con

tending that the administrator had no legal right to the possession or control of any personal property found after the demise of Mary A. Kern, which, presumably, had been in her possession during her lifetime, because, first, whatever that property consisted of was not owned by her but was derived from property given to her in trust for her children, including respondent, by the last will and testament of respondent's grandfather, the father of Mrs. Mary A. Kern; and, secondly, that the personal property or proceeds thereof had long since been distributed among all the parties entitled thereto, that is to say, her children, including the respondent, and her husband, and that there were no debts of Mary A. Kern, deceased, to pay, no debts due her to be collected, at the time of her death and at no time since her death, and no property, money, papers, or other estate to be injured, wasted or lost and it was unnecessary to administer on her alleged estate.

On a trial of the cause before the Probate Court that court ordered respondent to pay

was put in bank for account of George Kern upon his release from the penitentiary where he was confined. There is no complaint made that the judgment is erroneous in amount, if there should be any judgment at all, save as to the amount of interest, the right to which, but not the amount thereof, being disputed by the appellant. It is to be assumed that the interest was calculated from the date upon which it was in evidence that the money, assets, etc., came into the hands of the defendant, assuming correct ac tion on the part of the trial court, in the absence of anything to the contrary appearing.

The administrator of Mrs. Mary A. Kern's estate was not appointed until November 18th, 1915, when, on petition of George Kern,

her son, on January 4, 1916, the estate was ordered into the hands of the public administrator, who, as such, then took charge and instituted this proceeding.

It is practically conceded by all parties that at the time the four children of Mrs. Mary Kern made distribution of her estate among themselves, the total value was $6690.26, and consisted of money, stocks, bonds, and notes, with no debts and no outstanding claims, and that an administrator was not then necessary. The gravamen of this present action proceeds on the theory that George Kern, one of the five heirs, had not received his proper proportion of his mother's estate. The administrator brought this proceeding to recover from John J. Kern about one-fifth of the share John had received; that is one-fourth of the whole net estate, that is to say one-fifth of $1497.06. The property of which Mrs. Mary A. Kern died possessed came to her under the provisions of the will of her father, Clemenz Zimmerman. · That will, probated February 11, 1875, in the

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

(218 S.W.)

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 confinedo, 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 matter for the determination of the trial court as the finder of facts, and inquiry as to that is closed to us.

not material and is not before us.

[3] It is objected that under section 70, as well as by section 73, of the Revised Statutes 1909, the specific property alleged to have been detained, concealed or held out, must be identified and awarded in specie, and that unless that has been done, the administrator cannot recover. That was an old doctrine of this state, but was disposed of to the contrary by our court in a very learned and exhaustive opinion by Judge Goode In re Estate of Huffman, 132 Mo. App. 44, 111 S. W. 848. That case proceeds upon the authority of the decision of our Supreme Court in Tygard v. Falor, 163 Mo. 234, 63 S. W. 672. Later the decision of our court in the Huffman Case and of the Supreme Court in the Tygard Case was distinctly affirmed by the Supreme Court in Clinton v. Clinton, 223 Mo. 371, 123 S. W. 1, all of these cases overruling older decisions of the appellate courts which had seemed to hold to the contrary.

[4] It is claimed in argument by learned counsel for the appellant that the claimant

We

[5] The only question remaining is the award of interest. On this we have not before us the facts upon which the court based the date for finding this interest, so we must assume, as before said, that it had proper data. The only question, therefore, remaining is whether interest is allowable. think that under the provisions of our law, section 7179, Revised Statutes 1909, and of the decision of our court in Lack v. Brecht, 166 Mo. 242, loc. cit. 259, 65 S. W. 976, and following, interest was allowable under the statute. In the Lack Case, supra, a proceeding in the circuit court for conversion, no interest was claimed but it was allowed. Here we have an unlawful withholding and conversion and we think interest was allowable,

Finding no reversible error in the action of the trial court, its judgment is affirmed.

ALLEN and BECKER, JJ., concur.

1. WILLS 22-TESTAMENTARY CAPACITY AS 13. WILLS 762-INTEREST ON CREDITS IN

Testamentary capacity as to personalty is governed by the law of the testator's domicile, interest thereon, are to be charged against benThough, under the will, advancements, with and personalty should be distributed accordingly.eficiaries, no interest can be allowed on credits 2. WILLS 70, 436-DEVISE OF REALTY GOVto the beneficiaries, in the absence of a proviERNED BY LAW OF SITUS. sion in the will.

The power to sell lands of infants is pure-al advancements to January 1, 1914. Simon ly statutory, and if the statute is not comE. Grimes became the purchaser of the four plied with a sale is void. farms at the price of $71,400.