Opinion
No. 27999.
March 20, 1951.
APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, EDWARD T. EVERSOLE, J.
"Not to be reported in State Reports."
H. L. C. Weier, Festus, for appellants.
J. W. Thurman, W. Dwight Schubel, Hillsboro, for respondent.
This is an action filed in the Probate Court of Jefferson County to discover assets in the estate of William Diehl, Sr., deceased. The petitioner was Charles Diehl, and the respondents (appellants here) were William Diehl, Jr., and Irene Aselman. All three parties are children of the deceased. Irene Aselman is the administratrix of her father's estate. The issues presented by the pleadings and the evidence were whether two checks, one for $1,000 drawn by William Diehl, Sr., in favor of his son William Diehl, Jr., and the other for like amount in favor of the daughter, Irene Aselman, and delivered to said payees by William Diehl, Sr., during his lifetime, were intended as gifts of the amount named in said checks or as loans to said children. From an adverse judgment in the Probate Court, Charles Diehl appealed to the Circuit Court where the cause was tried to the court, a jury trial having been waived by the parties, and resulted in a finding:
"* * * that on the 9th day of January, 1947, William Diehl, Sr., deceased, made and delivered to William Diehl, Jr., and Irene Aselman, each a check in the sum of $1,000; that said amounts were given to the said William Diehl, Jr., and Irene Aselman as loans and with the intention on the part of William Diehl, Sr., deceased, that said sums would be repaid to him or in the event of his death to his Estate.
"The Court doth further find that Irene Aselman and William Diehl, Jr., are each indebted to the Estate of William Diehl, Sr., deceased, in the sum of $1000.00."
On the above finding the court entered its judgment that William Diehl, Jr., and Irene Aselman each forthwith pay to the estate of their father the sum of $1,000, together with costs. From this judgment, William Diehl, Jr., and Irene Aselman have perfected this appeal.
William Diehl, Sr., died intestate on October 24, 1947. He was between sixty-five and seventy years of age at the time. For about one year and five months prior to his death he lived with his daughter, Irene, at High Ridge, Missouri, and prior to that time he resided at the home of his son William for two years and one month. Appellants received from their father $7 per week for room and board during the time he lived with them.
Before going to live with his children deceased had lived on a twenty-three acre farm which he owned near High Ridge, Missouri. This farm was sold to his son Charles for $5,000 on June 12, 1944. After selling the farm he stayed with his son Charles for a short time, but he and said son were unable to get along.
The checks in question were drawn on the Farmers and Merchants Bank of Fenton, Missouri, and were both dated January 9, 1947.
Appellants, in support of their contention that deceased intended to make gifts of the proceeds of the checks to the respective payees, offered the testimony of Lester Guild, a garage proprietor who formerly resided at High Ridge. Mr. Guild stated that William Diehl, Sr., had often visited at his garage during the last years of his life and that prior to the date of the checks he had talked to Mr. Diehl concerning these checks. He stated: "A few days before he said he wanted to do something for Bill and Irene, but didn't know how to do it. * * * He was over there one evening and said he figured out what he wanted to do. The next morning he said he had done what he wanted to for Bill and Irene. Then he went on and told me he had given each one a check the evening before that for $1,000 a piece."
Irene Aselman testified that on the evening of January 9, 1947, her father told her: "I gave your brother William today a check for $1,000."
William Diehl, Jr., testified:
"Q. * * * Will you state on the court whether you ever talked to your father in regard to a $1000 check made to your sister and dated January 9, 1947? A. Yes. I saw him up at Warner's store on the 9th of January and he said he was going to give my sister a check for $1,000. * * * That was the 9th about five o'clock in the evening.
* * * * * *
"Q. Did he tell you why he was going to give your sister a check for $1,000? A. Yes, sir, he said because she had taken care of him."
William Diehl, Jr., testified on cross-examination that defendants' Exhibit 2, which was the check given the witness by his father, was in the handwriting of the witness, and that it was signed by his father; that when his father was living at his place he (witness) always made out the checks and his father signed them; that William Diehl, Sr., paid him $1.00 a day during the time he lived at his home, and this was by agreement; that he owed his father $400 on January 9, 1947, and that his father made no reference to this at the time the $1000 check was delivered.
The evidence further shows that William Diehl, Jr., borrowed a total sum of $1800 from his father during the last few years of the latter's lifetime. These loans were all liquidated at the time of the father's death.
Charles Diehl testified that he visited his father the day before he died. The father at the time was a patient in Alexian Brothers Hospital and was confined to his bed at the time. He further testified: "We talked about different things, and I said to him, `Do you have a lot of money in that cabinet?' He said, `No, I just have a few dollars.' He said, `The rest of it, they have.' I said, `How much do you have?' He said, `I have a note against William for $1,000 and a note against Irene for $1,000, and they balanced the bank book the first of the year and there was around $1,000 down there."
The foregoing testimony was admitted over the objection of appellants' counsel. The basis of the objection was that the evidence was self-serving and, therefore, incompetent.
Charles Diehl further testified that several weeks after his father's death his sister Irene came to his house and told him that he should go to the bank and sign a paper so that the undertaker could be paid. He further testified:
"I said, `How about probating it? I am not going down there and sign the paper.' She said, `There is nothing left. * * * After the funeral expenses are paid, there will only be a few dollars left.' I asked her about the two $1,000 notes. She kind of grunted around and made a face and said, `Yes, there are notes, but I used that to fix the upstairs * * * I got the money.' She said she came home from church or choir practice of some kind and found out that William was over there and borrowed $1,000 from him to buy a lot with. * * * She went and said she wanted some money too. I guess that is when she got the $1,000.
* * * * * *
"Q. Did you say she told you each one signed a note for it? A. Yes sir.
* * * * * *
"Q. Did your sister tell you anything about trying to collect this $1,000 back from William? A. She said what she was going to do. Then she said William said he wasn't going to do any more about it, that was his least worry. * * * She said at that time I ought to have been smart too and got some of it."
Rita Diehl, wife of Charles Diehl, testified that she overheard the foregoing conversation between her husband and his sister Irene. Rita Diehl further stated:
"Charley didn't say so much. He just asked Irene about their father's affairs. She had come over for him to go to Fenton and sign some papers. She said there was nothing left after the funeral expenses were paid. He said Dad told him how much it was. I don't remember what he said. She said William borrowed $1,000 and if he could get $1,000 she was entitled to $1,000, that she left him at church and when she came home he was downstairs and saw the check book on the table. She said if William could get $1,000 she was going to get $1,000. She wanted to improve their house. She said he was a fool for paying his part.
"Q. You mean when he bought the farm? A. Yes, sir. Charley has been more than fair with all of them I always thought. * * * She said that he made a note out, but she did not have it, that William had all the papers, that she borrowed $1,000 from her Dad and Charley asked her about a note and she said, `Yes, there was a note.'
"Q. Did she also tell you that William had also borrowed $1,000? A. Yes, she said she told her Dad to tell William not to come in her house anymore because everytime he came he always got money from her Dad without her knowledge."
Mrs. Aselman's version of this conversation is to be found in the following testimony which she gave in rebuttal:
"It was on a Sunday and Mr. Brimmer had sent me a bill for the funeral. It was nearly $400. I asked him how we would pay that. He said to talk to the banker. Mr. Dalton, the bank president, said if we would all sign a check at the bank we could pay the funeral expenses. * * * He wanted to know how much money there was. Mr. Dalton said there was a little over $400. I said the funeral bill was almost $400. I went on home and there was nothing more said.
"Q. Did you tell him about giving your father a note for $1,000? A. No, sir."
Appellants assign as error the action of the trial court in allowing Charles Diehl to testify concerning certain declarations made by his father at the time he visited his father at the hospital the day prior to the latter's death.
The witness testified that his father stated at the time: "I have a note against William for $1,000 and a note against Irene for $1,000 * * *." The basis of the objection to this testimony was that it was self-serving. The court, in response to the objection, stated: "We will let him testify and if I determine later it is not admissible, it will not be considered in reaching a decision."
The evidence was clearly inadmissible on the ground stated in the objection made by appellants' counsel. Lanphere v. Affeld, Mo.Sup., 99 S.W.2d 36; Gunn v. Thruston, 130 Mo. 339, 32 S.W. 654. However, this is a jury waived case, and upon appeal in such a case it is our duty to "review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." R.S.Mo. 1949, § 510.310.
In an equity case this court is not required to reverse a judgment on account of incorrect rulings on evidence, but may disregard any incompetent testimony that may have been offered, and reach a conclusion on the evidence properly admitted. Lanphere v. Affeld, Mo.Sup., 99 S.W.2d 36. This rule is now applicable in a jury waived case. Boggess v. Cunningham's Estate, Mo.App., 207 S.W.2d 814.
The burden of proof rested upon the appellants to prove that the checks which they received from their father were gifts rather than loans. Roelofson v. Whitten, Mo.App., 249 S.W. 688; Tygard v. Falor, 163 Mo. 234, 63 S.W. 672; In re Kaimann's Estate, Mo.Sup., 229 S.W.2d 527.
With the foregoing rule in mind, we have carefully examined and considered the evidence in this case, together with the permissible inferences that may reasonably be drawn therefrom, and have reached the conclusion that appellants have failed to sustain the burden which the law casts upon them.
In our opinion, the trial court reached the right result. The judgment is affirmed.
McCULLEN and BENNICK, JJ., concur.