Opinion
No. 43263.
October 12, 1953. Motion for Rehearing or to Transfer to Banc Overruled, November 9, 1953.
Defendant received a $40,000 check from his father and business partner shortly before the father's death. The mother died shortly afterwards. Defendant administered the estates of both the father and the mother, without including the $40,000 as an asset of either estate. Plaintiffs, the other children, were not required to file a statutory action covering unadministered assets, but were entitled to file a direct action against defendant for their share of the $40,000. Since defendant asserted that the $40,000 was a gift, he had the burden of proof. There was a jury issue as to a gift, and it was error to direct a verdict in favor of defendant. Plaintiffs did not make a submissible case on the issue of undue influence. A new trial is ordered on the issue of a gift.
1. TRIAL: Motion for Directed Verdict. Upon a motion for a directed verdict a defendant admits the truth of all testimony, including testimony adduced by defendant, favorable to plaintiff and all legitimate inferences therefrom favorable to plaintiff.
2. EXECUTORS AND ADMINISTRATORS: Actions: Unadministered Assets: Statutory Action Permissive: Direct Action Against Executor Permitted. The statutory action for the appointment of an administrator de bonis non is permissive and does not prevent the heirs from bringing a direct action against the executor to recover their share of unadministered assets in the hands of the executor.
3. GIFTS: Burden of Proof on Defendant. Defendant asserted that a $40,000 check received from his father was a gift and had the burden of proving such gift by clear, cogent and convincing evidence.
4. GIFTS: Jury Issue on Gift: Directed Verdict Erroneous. There was a jury issue as to whether a check for $40,000 delivered to defendant by his father shortly before the father's death was intended to be a gift. It was error to direct a verdict in favor of defendant.
5. GIFTS: Partnership: Undue Influence Not Shown. The evidence was not sufficient to make a jury issue that the $40,000 check claimed by defendant as a gift from his father, who was a business partner, was obtained by undue influence.
Appeal from Jackson Circuit Court; Hon. Allen C. Southern, Judge.
REVERSED AND REMANDED.
Barnett Skeer and Ben E. Pener for appellants.
(1) Plaintiffs are the proper parties to bring this action. There is not good cause justifying appointment of an administrator de bonis non. Sec. 461.540, RSMo 1949; Pullis v. Pullis, 105 S.W. 275, 127 Mo. App. 294; Derge v. Hill, 77 S.W. 105, 103 Mo. App. 281; Chency v. Garibaldi, 104 N.E.2d 114, 345 Ill. App. 509. (2) The United States and the State of Missouri do not contemplate and never have required the appointment of an administrator in the matter of estate and inheritance taxes. 26 U.S.C.A., Secs. 930 (a), 827 (b) and (c); 25 U.S.C.A., Internal Revenue Acts, beginning with 1940, Sec. 411 (b); Secs. 145.300, 145.310, 145.280, RSMo. 1949. (3) Defendant cannot avail himself of his own wrong. Nord v. Nord, 91 S.W.2d 223; Odom v. Langston, 173 S.W.2d 826, 351 Mo. 609; Broom's "Legal Maxims," 8 American from the fifth London Edition, 287, 289. (4) The burden of proof is on the defendant to prove by clear, cogent and conclusive evidence every element of a gift, including both delivery and intent to pass title. 38 C.J.S. 790; Trautz v. Lemp, 46 S.W.2d 135, 329 Mo. 580; Lewis v. Lewis, 189 S.W.2d 557, 354 Mo. 415; St. Louis Union Trust Co. v. Busch, 145 S.W.2d 426, 346 Mo. 1237; Stein v. Mere. Home Bank, 148 S.W.2d 570, 347 Mo. 732; Miss. Valley Trust Co. v. John F. Weber Bro. Gro. Co., 148 S.W.2d 578, 347 Mo. 739; Jones v. Falls, 73 S.W. 903, 101 Mo. App. 536; McCune v. Daniels, 225 S.W. 1020; Spencer v. Barlow, 5 S.W.2d 28, 319 Mo. 835; Tygard v. Falor, 63 S.W. 672, 163 Mo. 234; Horn v. Owens, 171 S.W.2d 585; State ex rel. Smith v. Bland, 186 S.W.2d 443, 353 Mo. 1073. In re Franz' Estate, 127 S.W.2d 401, 344 Mo. 510; Newell v. Edom, 242 S.W. 701; Foley v. Harrison, 136 S.W. 354, 233 Mo. 460; Cartall v. St. Louis Union Trust Co., 153 S.W.2d 370, 342 Mo. 372; In re Kaimann's Estate, 229 S.W.2d 527, 360 Mo. 544; Wilkerson v. Wann, 16 S.W.2d 72, 322 Mo. 842; McCoy v. McCoy, 227 S.W.2d 698, 360 Mo. 199; Key v. Kilburn, 228 S.W.2d 731; Schneider v. Johnson, 208 S.W.2d 461. 357 Mo. 245; Lastofka v. Lastofka, 99 S.W.2d 46, 339 Mo. 770; Stalleup v. Williamson, 235 S.W.2d 318; Reaves v. Pierce, 26 S.W.2d 611. (5) The last decision of the Supreme Court of Missouri en Banc is controlling. State ex rel. Hopkins v. Daues, 6 S.W.2d 893, 319 Mo. 733; State ex rel. United Rys. Co. v. Reynolds, 213 S.W. 782, 278 Mo. 554; State ex rel. North K.C. Develop. Co. v. Ellison, 222 S.W. 783, 282 Mo. 660. (6) The conduct of Jerry Wolf was inconsistent with the making of a $40,000 gift to defendant. Trautz v. Lemp, 46 S.W.2d 135, 329 Mo. 580; Cartall v. St. Louis Union Trust Co., 153 S.W.2d 370, 348 Mo. 372; Wilkerson v. Wann, 16 S.W.2d 72, 322 Mo. 842; McBride v. Mercantile-Commerce Bank Trust Co., 48 S.W.2d 922, 330 Mo. 259. (7) The conduct of defendant was inconsistent with defendant's claim of a $40,000 gift to himself. In re Franz' Estate, 127 S.W.2d 401, 404, 344 Mo. 510; Foley v. Harrison, 136 S.W. 354, 233 Mo. 460; Jones v. Falls, 73 S.W. 903, 101 Mo. App. 536: Stein v. Mercantile Home Bank Trust Co., 148 S.W.2d 570, 347 Mo. 732: Miss. Valley Trust Co. v. John F. Weber Bro. Grocery Co., 148 S.W.2d 578, 347 Mo. 739: Cartall v. St. Louis Union Trust Co., 153 S.W.2d 370, 348 Mo. 372; Wilkerson v. Wann, 16 S.W.2d 72, 75, 322 Mo. 842; Trautz v. Lemp, 46 S.W.2d 135, 329 Mo. 580; Kunst v. Walker, 43 S.W.2d 886, 141 Mo. 642. (8) The conduct of Rosa Wolf was inconsistent with defendant's claim of a $40,000 gift to himself. Trautz v. Lemp, 46 S.W.2d 135. 392 Mo. 580; Cartall v. St. Louis Union Trust Co., 153 S.W.2d 370, 348 Mo. 372; Wilkerson v. Wann, 16 S.W.2d 72, 322 Mo. 842; McBride v. Mercantile-Commerce Bank Trust Co., 48 S.W.2d 922, 330 Mo. 259. (9) Defendant's claim of a $40,000 gift to himself would result in an unnatural, unequal and unfair distribution. Hall v. Knappenberger, 11 S.W. 239, 97 Mo. 509; In re Diehl's Estate, 239 S.W.2d 523; Gay v. Gillilan, 5 S.W. 7, 92 Mo. 250. (10) The $40,000.00 was obtained by defendant from Jerry Wolf by the exercise of undue influence. Defendant and Jerry Wolf were business partners and there was a confidential relation between them. Dimity v. Dimity, 62 S.W.2d 859; Munday v. Knox, 9 S.W.2d 960, 321 Mo. 168; Reed v. Carroll, 82 Mo. App. 102; 25 C.J. 1118, note 56; Soureal v. Wisner, 13 S.W.2d 548, 321 Mo. 920; Fowler v. Fowler, 2 S.W.2d 707, 318 Mo. 1078; Canty v. Halpin, 294 Mo. 96, 212 S.W. 94; Kleinlein v. Krause, 209 S.W. 933; Byrne v. Byrne, 157 S.W. 609. 250 Mo. 632. (11) Active exercise of undue influence may be proved by circumstantial evidence. Lochr v. Starke, 56 S.W.2d 772, 332 Mo. 131; Buckner v. Tuggle, 203 S.W.2d 449, 356 Mo. 718; Ulrich v. Zimmerman, 163 S.W.2d 567, 349 Mo. 772; Welch v. Welch, 190 S.W.2d 936, 354 Mo. 654; McCoy v. McCoy, 227 S.W.2d 698, 360 Mo. 199; Fessler v. Fessler, 60 S.W.2d 17, 332 Mo. 655; Hamilton v. Steininger, 168 S.W.2d 59, 350 Mo. 698; State ex rel. Smith v. Hughes, 200 S.W.2d 360, 356 Mo.]; Baker v. Spears, 210 S.W.2d 13, 357 Mo. 601; Walter v. Alt. 152 S.W.2d 135, 348 Mo. 53; Look v. French, 144 S.W.2d 128, 346 Mo. 972; Patten v. Shelton, 40 S.W.2d 706, 328 Mo. 631; 26 C.J. 1060; 37 C.J.S. 207, sec. 1; 27 C.J. 483; Barber v. Nunn, 205 S.W. 14, 275 Mo. 565. (12) Defendant was active in procuring the transfer of the $40,000, to himself. Clark v. Powell, 175 S.W.2d 842, 351 Mo. 1121; Horn v. Owens, 171 S.W.2d 585; Holland v. Anderson, 196 S.W.2d 175; Hamilton v. Steininger, 168 S.W.2d 59, 350 Mo. 698; Buckner v. Tuggle, 203 S.W.2d 449, 356 Mo. 718; Baker v. Spears, 210 S.W.2d 13, 357 Mo. 601; Bohnsack v. Hanebrink, 240 S.W.2d 903; Dimity v. Dimity, 62 S.W.2d 859; Manahan v. Manahan, 52 S.W.2d 825. (13) The transfer of the $40,000 to defendant, if a gift, would cause a most unnatural, unequal and unfair distribution of the estate of Jerry Wolf, and indicates the exercise of undue influence. Dimity v. Dimity, 62 S.W.2d 859; Morris v. Morris, 4 S.W.2d 459; Clark v. Powell, 175 S.W.2d 842, 351 Mo. 1121; Gott v. Dennis, 246 S.W. 218, 296 Mo. 66; Meier v. Buchter, 94 S.W. 883, 197 Mo. 68; Wendling v. Bowden, 161 S.W. 774, 252 Mo. 647; Bohnsack v. Hanebrink, 240 S.W.2d 903; In re Kaimann's Estate, 229 S.W.2d 527, 530, 360 Mo. 544; Manahan v. Manahan, 52 S.W.2d 825; Reed v. Carroll, 82 Mo. App. 102; Colquitt v. Lowe, 184 S.W.2d 420. (14) Jerry Wolf was aged and ill and of declining mental vigor, and therefore more likely to yield to the exercise of undue influence, Bohnsack v. Hanebrink, 240 S.W.2d 903; In re Kaimann's Estate, 229 S.W.2d 527, 360 Mo. 544; Morris v. Morris, 4 S.W.2d 459; Holland v. Anderson, 196 S.W.2d 175; Manahan v. Manahan, 52 S.W.2d 825; Colquitt v. Lowe, 184 S.W.2d 420; Reed v. Carroll, 82 Mo. App. 102; Dimity v. Dimity, 62 S.W.2d 859. (15) Declarations and conduct of Jerry Wolf were inconsistent with defendant's claim of a $40,000 gift to himself. Bonsack v. Hanebrink, 240 S.W.2d 903; Canty v. Halpin, 242 S.W. 94, 294 Mo. 96; Gott v. Dennis, 246 S.W. 218, 296 Mo. 66; Coldwell v. Coldwell, 228 S.W. 95; Dimity v. Dimity, 62 S.W.2d 859; Hughes v. Renshaw, 282 S.W. 1014, 314 Mo. 95; Morris v. Morris, 4 S.W.2d 459; Mumford v. Mumford, 194 S.W. 898; Gobel v. Kitchen, 217 Mo. App. 354. (16) Defendant's concealment of the $40,000 and his claim of gift, is cogent evidence that defendant procured the $40,000 by the exercise of undue influence. Dimity v. Dimity, 62 S.W.2d 859; Manahan v. Manahan, 52 S.W.2d 825; Morris v. Morris, 4 S.W.2d 459; Bohnsack v. Hanebrink, 240 S.W.2d 903; McNealy v. Murdock, 239 S.W. 126, 293 Mo. 16. (17) When a confidential relation exists between a grantor, donor or testator and the grantee, donee or legatee, and the latter has been active in some way in procuring or assisting in the preparation or execution of the deed, gift or will, a presumption arises that the transfer or legacy was procured by the exercise of undue influence. Nelson v. Hammett, 189 S.W.2d 238; Pulitzer v. Chapman, 85 S.W.2d 400, 337 Mo. 298; Loehr v. Starke, 56 S.W.2d 772, 332 Mo. 131; Moll v. Pollack, 8 S.W.2d 38, 319 Mo. 744; Clark v. Powell, 175 S.W.2d 842, 351 Mo. 1121; Kacchelen v. Barringer, 19 S.W.2d 1033. (18) Prima facie case of the exercise of undue influence does not disappear upon the introduction of rebutting evidence. Loehr v. Starke, 56 S.W.2d 772, 332 Mo. 131; Pulitzer v. Chapman, 85 S.W.2d 400, 337 Mo. 298; Nelson v. Hammett, 189 S.W.2d 238; Moll v. Pollack, 8 S.W.2d 38, 319 Mo. 744.
Howell, Jacobs Howell, Floyd E. Jacobs and Dean Wood for respondent.
(1) The trial court did not err in directing the verdict in favor of the defendant and against the plaintiffs; since plaintiffs as a matter of law are not the proper parties to bring this action. Defendant is next of kin of Jerry Wolf, deceased, and Rosa Wolf, deceased, along with plaintiffs; and plaintiffs cannot in law waive administration of their parents' estates as to any recovery of alleged assets of their parents' estates, without the consent of defendant. Griesel v. Jones, 123 Mo. App. 45, 99 S.W. 769; Odom v. Langston, 351 Mo. 609. 173 S.W.2d 826. (2) The plaintiffs' cases are readily distinguished, on their erroneous claim that plaintiffs could bring this action. Pullis v. Pullis, 127 Mo. App. 294, 105 S.W. 275; Derge v. Hill, 103 Mo. App. 281, 77 S.W. 195; Chency v. Garibaldi, 345 Ill. App. 509, 104 N.E.2d 114; Nord v. Nord, 91 S.W.2d 223. (3) Since plaintiffs' amended petition charges that defendant obtained the $40,000 check by undue influence, gift is not an affirmative defense; and the burden of proof of all their said allegations remains on the plaintiffs throughout the case. The essential elements of a gift have been defined by this court. Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135. (4) A gift by check is in law delivered when cashed. Pennell v. Ennis, 126 Mo. App. 355, 103 S.W. 147; Starks v. Lincoln, 291 S.W. 132; Perry v. First Natl. Bank. 68 S.W.2d 927; 38 C.J.S. Gifts, sec. 55. p. 842. (5) The burden of setting aside a gift of land or personalty on the ground of alleged undue influence, is on the plaintiff. Horn v. Owens, 171 S.W.2d 585. (6) If the plaintiff in a given case succeeds in making a prima facie case, by raising a presumption of undue influence, (which these plaintiffs have failed to do), then the burden of going forward with the evidence to show gift, is on the defendant. Horn v. Owens, supra; Nelson v. Hammett, 189 S.W.2d 238; Stalleup v. Williamson, 235 S.W.2d 318. (7) The evidence in this case shows, as a matter of law, that Jerry Wolf did make a gift of the $40,000 check to defendant. Plaintiffs' cases are readily distinguished, on their erroneous claim that Jerry Wolf's will was futile. McBride v. Mercantile-Commerce Bank Trust Co., 330 Mo. 259, 48 S.W.2d 922. (8) Plaintiffs' cases are readily distinguished, on their erroneous claim that Jerry Wolf made an unnatural gift to defendant. Hall v. Knappenberger, 97 Mo. 509, 11 S.W. 239; In re Diehl's Estate, 239 S.W.2d 523; Gay v. Gillilan, 92 Mo. 250, 5 S.W. 7; McNealy v. Murdock, 293 Mo. 16, 239 S.W. 126. (9) The decisions show Jerry Wolf made a gift of the $40,000 check to defendant. Hornsey v. De Voto, 223 Mo. App. 340, 16 S.W.2d 630; Chandler v. Hedrick, 187 Mo. App. 664, 173 S.W. 93. (10) Undue influence has been defined by this court to mean the breaking of the will power of the donor; and natural affection does not constitute undue influence. Horn v. Owens, 171 S.W.2d 585. (11) The first element necessary to constitute a presumption of undue influence, is a confidential relation between donor and donee; and this element is missing in this case, because the evidence shows as a matter of law that there was no confidential relation between defendant and Jerry Wolf, with respect to the personal affairs and property of Jerry Wolf. Such confidential relation does not arise in law from the fact Jerry Wolf, defendant and Lester Metzger were partners in the livestock trading business; since the fiduciary relation between partners is limited to the partnership affairs and property, and does not extend to their personal affairs and property. Schneider v. Schneider, 347 Mo. 102, 146 S.W.2d 584; Thomas v. Milfelt, 222 S.W.2d 359; 22A Missouri Digest, "Partnership," sec. 70; 40 Am. Jur., "Partnership," sec. 128, p. 217, Note 3; 47 C.J. "Partnership," sec. 209, pp. 771-2, Notes 61-62; 25 C.J. Fiduciary, p. 1118, Note 56, as restated in 36 C.J.S. Fiduciary, p. 745; Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772; Larkin v. Larkin, 119 S.W.2d 351; 154 A.L.R. 583. (12) The second element necessary to constitute a presumption of undue influence, is that donee was active in procuring the gift; and this element is also missing in this case, because the evidence shows as a matter of law, that defendant took no action whatsoever to procure the $40,000 check from Jerry Wolf. (13) This court has established the essential meaning of undue influence. Horn v. Owens, supra; Kleinlein v. Krauss, 209 S.W. 922. (14) Preference for defendant son over plaintiff daughters by Jerry Wolf does not show fraud nor undue influence; and neither does proof of instances of filial devotion by defendant to his father, who had the right to dispose of his own property. Kleinlein v. Krauss, 209 S.W. 933; Hamlett v. McMillin, 223 S.W. 1069; McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698; Lastofka v. Lastofka, 339 Mo. 770, 99 S.W.2d 46; Ruff v. Young, 354 Mo. 506, 190 S.W.2d 208; Nicholson v. Duff, 189 Mo. App. 47, 174 S.W. 451. (15) Silence on the part of Jerry Wolf in failing to tell plaintiffs of his gift to defendant, does not show undue influence by defendant. Ruff v. Young, 354 Mo. 506, 190 S.W.2d 208. (16) Nor does silence on the part of defendant after the gift show undue influence. Burgdorf v. Keeven, 351 Mo. 1003, 174 S.W.2d 816. (17) The presence of Waxman as attorney for Jerry Wolf and Rosa Wolf, when the gift was made, is a strong circumstance against undue influence. Shaw v. Butler, 78 S.W.2d 420; Ruff v. Young, supra, l.c. 210; Nicholson v. Duff, supra, l.c. 454; Ulrich v. Zimmerman, 163 S.W.2d 567. (18) The relation of confidence between father and son is not sufficient to raise a presumption of undue influence by the son in receiving a gift from the father; but there must be substantial evidence showing a special trust and management by the son of the father's property. Such evidence is lacking in this case. McFarland v. Brown, 193 S.W. 800; Hamlett v. McMillin, supra, l.c. 1074; Hedrick v. Hedrick, 350 Mo. 716, 168 S.W.2d 69; Shaw v. Butler, supra, l.c. 428-9. (19) There is no evidence, required to prove undue influence, that defendant caused the making of the gift to him, or that he destroyed the will power of his father for that purpose. McCoy v. McCoy, supra, l.c. 706; Shaw v. Butler, supra, l.c. 428. (20) Plaintiffs make the following admissions in their brief, that further show that in law there is no undue influence in this case. There is no distinction between actions at law and actions in equity, as to the sufficiency of evidence of undue influence as a matter of law. Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706. (21) There must be substantial proof of undue influence for a jury, and "forced and violent inferences not flowing from a reasonable interpretation of the facts shown," will not suffice. Patton v. Shelton, supra. (22) The cumulative effect of all of the inferences to be drawn must be strong enough, so that a reasonable jury might be led thereby to reach a conclusion favorable to the party producing the circumstantial evidence. Look v. French, 346 Mo. 972, 144 S.W.2d 128. (23) Mere opportunity and suspicion alone cannot take the place of substantial evidence of the exercise at the time of the gift of such force, coercion or over-persuasion as destroys the will of the grantor. McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698. (24) A distinction should here be made between circumstantial evidence of undue influence under the rule of Look v. French, supra, and auxiliary evidence which is only probative when accompanied by substantial evidence of undue influence, under the rule of McNealy v. Murdock, post. The facts relied on by plaintiffs as circumstantial evidence allegedly giving rise to inferences of undue influence, are in reality auxiliary only. McNealy v. Murdock, 293 Mo. 16, 239 S.W. 126. (25) Defendant was under no duty in law to notify plaintiffs of the gift to him by Jerry Wolf. He left the matter of the gift to his parents from first to last. Burgdorf v. Keeven, 351 Mo. 1003, 174 S.W.2d 816. (26) There is ample authority in law for the directed verdict of the trial court in this case, on the issue of undue influence. Larkin v. Larkin, 119 S.W.2d 351; Kuadler v. Stelzer, 323 Mo. 499, 19 S.W.2d 1054; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; State ex rel. Smith v. Hughes, 356 Mo. 1, 200 S.W.2d 360. (27) Plaintiffs cite no case that is authority for reversing the judgment of the trial court, on the issue of undue influence. These cases cited by plaintiffs, are favorable to defendant. Walter v. Alt, supra; Loehr v. Starke, supra; State ex rel. Smith v. Hughes, supra; Mumford v. Mumford, 194 S.W. 898; Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039.
Bernice Michaelson and Bessie Kramer, the daughters of Solomon Jerry (known in the record as Jerry) and Rosa Wolf, instituted this action against Edward J. Wolf, their brother, to recover two-thirds of $40,000 transferred to him by the father by means of a check shortly before the father's death and during his last sickness upon the theory the transfer was without consideration and was not intended as a gift and upon the theory the transfer was the result of undue influence exercised by the defendant over the father. The trial court considered plaintiffs had failed to make a submissible case at the close of all the evidence and directed a verdict for defendant. The record and the briefs are lengthy.
In an action at law upon a motion for a directed verdict, a defendant admits the truth of all testimony, including testimony adduced by defendant, favorable to a plaintiff and all legitimate inferences therefrom favorable to plaintiff. Wright v. Stevens, Mo., 246 S.W.2d 817, 821[1]; Hahn v. Brueseke, 348 Mo. 708, 155 S.W.2d 98, 100[1,2]; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135, 141[1-8]. A plaintiff's prima facie case is not destroyed by a defendant's rebutting testimony. Johnson v. Chicago E.I.R. Co., 334 Mo. 22, 30[1], 64 S.W.2d 674, 677[1-3]; Van Brock v. [920] First Nat. Bk., 349 Mo. 425, 161 S.W.2d 258, 262[7].
Jerry Wolf was a member of the Traders Livestock Exchange at the Kansas City stockyards. He bought, sorted and sold cattle. Abe Wolf, a cousin, and he were partners, the firm being Wolf and Wolf. Defendant went to work for the firm in 1907, and learned the business from the ground up. Abe Wolf retired about 1921. Jerry Wolf made his son an equal partner with him in 1923. In 1928 Lester Metzger became a partner, the firm being known at Wolf and Metzger, and each partner participated on a one-third basis.
Edward J. Wolf was a competent and successful trader. He made virtually all the important decisions of the firm for a number of years. Jerry Wolf gave him credit for the success of the partnership, stating he was going to see that Edward got the business. He transferred two seats on the Traders Exchange, worth $250 to $300 each, to Edward in 1931.
Pat Corcoran and Marie Corcoran, husband and wife, did office work and kept the books for Wolf and Metzger. The profit or loss on partnership transactions would be debited or credited from the partnership profit and loss account to each individual partner's ledger sheet in equal shares. An inventory of the cattle was taken practically every week, and whatever interest an individual partner had in the business would be reflected on his ledger sheet if the cattle were worth their book value. Each partner would draw against the firm account for firm and also personal transactions, the personal checks being charged on the partner's ledger sheet. An accountant annually checked the records and adjusted the accounts that each partner ultimately would draw equal amounts.
Pat Corcoran, plaintiffs' witness, testified that Jerry Wolf telephoned on September 26, 1946, and asked him to bring out the small checks, 8 or 9, he had had Mrs. Corcoran make out the day before, and some blank checks for the firm account and for his personal account. Jerry Wolf would give his relatives small checks ($10 to $25) on Jewish holidays. Mr. Corcoran arrived at Jerry Wolf's home, 7432 Tracy, Kansas City, Missouri between 5 and 6 p.m. Mr. Corcoran went to the bedroom, where Mr. Wolf was sitting on the edge of the bed. Mrs. Wolf was also in the room. In about 20 minutes Edward J. Wolf and Harold Waxman, a lawyer, arrived. Mr. Waxman was the son of Mrs. Wolf's sister.
Jerry Wolf signed the small checks and "gave them to Ed, his boy, to distribute." He asked Mr. Corcoran how much was to his credit in his personal account. The witness told him, and Jerry Wolf directed him to make a check for that amount and deposit it so Mrs. Wolf could open an account. Mr. Corcoran then wrote a check for $1,570.90 to Mrs. S.J. Wolf and Jerry Wolf signed it. (Witness later deposited this check to Mrs. Wolf's account.)
Jerry Wolf then said "Now, I want to make a check for Ed." Witness asked: "On what account?" Jerry Wolf said: "The firm." Witness asked: "For how much?" He said: "$40,000." At that time Jerry Wolf had a personal credit on his ledger sheet of approximately $50,000. Witness said: "Jerry, I don't think you are leaving enough there to pay your income tax." Mr. Wolf said: "Well. Ed and Mamma will take care of that." A discussion arose as to how to write the check and witness thought Mr. Waxman suggested that, instead of making it to Edward J. Wolf, the check be made payable to Jerry Wolf and that Jerry endorse it to Edward. Mr. Corcoran thereupon wrote a check against the Wolf and Metzger partnership account for $40,000, payable to "S.J. Wolf." and on the back of the check "Pay to the order of Edw. J. Wolf." Jerry Wolf thereupon signed the check and the endorsement "S.J. Wolf," and handed the check to Edward J. Wolf. During the transaction neither Edward J. Wolf nor Rosa Wolf, who were in the room, said anything.
Jerry Wolf never did say what the $40,000 check was for or why he wanted it made out.
[921] The $40,000 check was endorsed by Edward J. Wolf and deposited to his personal credit September 27, 1946.
Jerry Wolf executed a new will immediately following the $40,000 check transaction. Jerry Wolf and Rosa Wolf had executed mutual wills in 1920. After providing for the payment of debts and expenses, each gave $100 to each of their three children, and then passed the residue of the estate to the survivor so long as he or she remained single, and in the event of remarriage the survivor held one-half of said residuary estate in trust for the children, share and share alike, and the other half absolutely. Jerry Wolf's new or modernized will provided for the payment of debts and expenses, gave each child $100, and the residue of the estate to Rosa Wolf, and named Edward J. Wolf executor. The change was the omission of the provision respecting remarriage. Mrs. Wolf at that time was 76 or 77 years old. Edward J. Wolf did not say anything during the writing of the new will.
Jerry Wolf was not as active as formerly during the last 4 or 5 years of his life. He came to the office between 9:30 and 10:00 a.m., spent more time in the office, signing checks etc., than in the yards. However, he was in the yards selling cattle within the last year of his life. He was confined to his home and a hospital for the last 6 or 7 months of his life with a heart ailment. He returned to his home from the hospital September 4th, executed the instruments hereinbefore mentioned on September 26th, and returned to the hospital September 28th, where he died November 2, 1946, at the age of 82 years.
Rosa Wolf, after an illness of three weeks, died May 24, 1947.
Edward J. Wolf, as Executor, administered the estate of Solomon Jerry Wolf, deceased, as well as the partnership estate, and was finally discharged February 19, 1948. The inventory showed the following assets: Cemetery lots, $250. Clothing etc., $200. Membership in Traders Exchange, $350. Interest in Wolf and Metzger, $11,728.78. (Total, $12,528.78.) A Federal estate tax return shows real estate held by Mr. and Mrs. Wolf, with right of survivorship in Mrs. Wolf, valued at $17,750 and Mrs. Wolf the beneficiary of $17,000 life insurance. The Probate Court made allowances totaling $3,400 to Mrs. Wolf in December, 1946. RSMo 1949, §§ 462.460. Jerry Wolf's gross income for 1946 (November 1) was $39,134.65, which was subject to a Federal income tax of $11,582.06. The State income tax was $770.91. A Federal gift tax of $217.50 was assessed. It appears that the Executor paid a Federal estate tax of $385.76 and a State inheritance tax of $351.15 on $33,007.58 passing to Edward J. Wolf.
The Federal income tax was paid by Mrs. Wolf using her $3,400 allowance to purchase a cashier's check dated January 15, 1947, payable to the Collector of Internal Revenue, by Edward J. Wolf paying 35,543.63, and by the Jerry Wolf estate paying the balance.
Edward J. Wolf, as Administrator with the will annexed, administered the estate of Rosa Wolf, deceased. Each child was entitled to one-third of her estate, her husband having predeceased her. The inventory disclosed: Real estate, $34,481.74. Bank account, $649.28, Furnishings in apartment building, $1,100. Furnishings at 2118 East 70th street terrace, $750. Her estate was fully administered and the administrator discharged September 28, 1948.
The $40,000 check was not reflected in the inventory of either estate.
We summarize some of the testimony.
Virginia Thompson, one of Jerry Wolf's nurses, testified that in October, 1946, he spoke affectionately of his family, mentioning his granddaughter and her mother, Bernice Michaelson, and told her that his children had nothing to worry about, "he had his family taken care of, they need have no worry." Gladys C. Stinson, another nurse, testified that just prior to his death his granddaughter talked to him and after she left his last intelligible words were: "God bless my family."
[922] Returning home from Mr. Wolf's funeral with Mrs. Michaelson and Edward Wolf. Rosa Wolf remarked that Mr. Wolf had left her a wealthy woman. Defendant said nothing in response to this.
Notwithstanding the testimony of Patrick Corcoran, who was an employee of Wolf and Metzger but a witness for plaintiff, that Jerry Wolf told him his daughters had cost him "tons of money" and "Eddy" had not cost him anything, and that, during the last two or three years of his life, Bernice Michaelson and her daughter were not treating Mrs. Wolf and him properly, there was much testimony from which a jury could find that Mr. and Mrs. Wolf thought well of their daughters and granddaughter.
The husbands of the daughters experienced financial difficulties and Jerry Wolf assisted them. Bessie Kramer testified her father was good to her, forwarding her money whenever she asked for it. She never asked for money after 1924, but he continued to forward small gifts. Robert Kramer, her husband, estimated what they had received, and in 1919 and 1920 voluntarily forwarded two notes, totaling $1,972, to Jerry Wolf. Jerry Wolf had possession of the notes at his death, but Mrs. Kramer testified they transferred their equity in Montana land to take care of the notes and Jerry Wolf, after holding the land for many years, sold it for $2,000. They lived in the State of California for a number of years, and, we understand, in the early 1940's Mr. Kramer suffered a stroke. He was unable to work and Mrs. Kramer worked to provide for her family. Her parents knew this as she communicated with them. She had three sons and a daughter. Her husband's condition prevented her attending the funerals of her father and mother. Robert Kramer died five weeks after Mrs. Wolf's death, and she then came to Kansas City.
Bernice Wolf married David Michaelson. He was a diamond setter and available positions were few. They had a daughter, Ruth. Jerry Wolf had possession of a $500 note of Mr. Michaelson's at his death, which Mrs. Michaelson testified they had paid in small weekly amounts to her mother. Mr. Michaelson suffered a heart attack in 1939, which affected his ability to work continuously and he was unable to work after 1947. The Michaelsons, while in Kansas City, were provided with a home, rent free, by Jerry Wolf. They helped Mr. and Mrs. Wolf with their properties. On December 10, 1945, Jerry and Rosa Wolf purchased a home at 2118 E. 70th street terrace, including the furniture, that Bernice and her daughter might be near them. After Mr. Wolf was taken to the hospital on September 28, 1946, Rosa Wolf had the Michaelsons move in with her. Bernice Michaelson started working in 1942 and her parents knew this. David Michaelson died in July, 1951.
Each partner of Wolf and Metzger, including defendant, had yearly earnings, before taxes, as follows: From 1936 to 1941, between $5,000 and $9,350. 1942, $15,781.90. 1943, $25,385.99. 1944, $14,986.54. 1945, $33,779.86. To November 2d 1946, $39,134.65.
Edward J. Wolf wrote Bessie Kramer July 3, 1947, stating, among other things, that their father had been in the hospital, part of the time in an oxygen tent, for eleven weeks; that he came home for three weeks and was again taken to the hospital; that his illness cost nearly $6,000; that their mother passed away; that the "folks" left specified pieces of real estate; that Mrs. Wolf had "several thousand dollars" in the bank, and: "It will take quite a bit of money to take care of the inheritance taxes as mother hadn't paid on what she inherited from dad, and now they will have to be paid on both estates, both state and federal which means we will have to pay four inheritance taxes all told. Harold Waxman is taking care of everything for us and is trying to get us off as easy as possible, but am afraid it will take quite a bit of the cash that was left to clear this." This letter did not mention the $40,000 check.
Plaintiffs do not claim that Jerry Wolf was incompetent.
[923] Bernice Michaelson talked to a young lawyer in 1949 who informed her about records being kept in the Probate Court. She had him investigate her father's estate. He reported the records disclosed that Jerry Wolf executed a new will and gave a check for $40,000 a few days before he died. She then first learned of the $40,000 check. She wrote her sister Bessie Kramer, and that was the first Mrs. Kramer knew of the check.
Defendant says plaintiffs may not maintain their action because he did not waive administration de bonis non on the estates of Jerry Wolf and Rosa Wolf and, because of want of unanimous consent, further administrations of said estates had to be applied for under § 461.540 and an administrator de bonis non of the estate of Jerry Wolf, deceased, had to be appointed for the prosecution of the action; citing § 461.540, RSMo 1949; Griesel v. Jones, 123 Mo. App. 45, 56, 99 S.W. 769, 771, 772, and Odom v. Langston, 351 Mo. 609, 624, 173 S.W.2d 826, 835-837.
Section 461.540, so far as material, reads (emphasis ours): "If * * after final settlement of an estate is had and the executor or administrator has been discharged, unadministered assets of the estate be discovered after such final discharge, and there are unpaid allowed demands against said estate in cases not otherwise provided for, letters of administration of the goods remaining unadministered shall be granted * *; provided, that if, after settlement of an estate is had and the executor or administrator has been discharged, unadministered assets of the estate be discovered and there are no unpaid allowed demands against said estate, letters of administration of the goods remaining unadministered may, if good cause be shown, be granted * *."
The legal title to the personal property of a decedent passes primarily to his executor or administrator, from whom the distributees receive it in the course of the administration. Odom v. Langston, supra. The Odom case was an action by the heirs of a decedent to set aside a written trust agreement covering personal property and to recover the property for themselves. A will contest and the administration of testatrix's estate were pending. The court considered that the administrator was an indispensable party plaintiff in suits for the personalty of an estate in probate; and that the heirs, at least until their status be determined in the will contest, were in no position to attack the trust instrument.
In Griesel v. Jones, supra, there had been no administration on the intestate father's estate. The heirs had not agreed on or consented to a "domestic distribution" of his estate. In these circumstances it was considered that no heir against his will was to be deprived of the benefit and protection of an administration of the estate.
In the instant case the estates of Jerry Wolf and of Rosa Wolf have been settled; the executor and administrator have been discharged; and there are no unpaid allowed demands against either estate. All the interested parties (heirs or distributees) are before the court. In these circumstances the proviso, quoted supra, to § 461.540 (added by Laws 1943, p. 306), authorizing an administration de bonis non of discovered unadministered assets "if good cause be shown" is permissive in nature and not compulsory. No good cause or special reason appears of record why the rights of the parties may not be determined without the expense and inconvenience of a second administration for the distribution of any discovered unadministered assets. This is the conclusion reached in Cheney v. Garibaldi, 345 Ill. App. 509, 104 N.E.2d 114, in construing § 461.540 in an action instituted in Illinois by those entitled to the assets against the maker of a note discovered after the estate of the payee had been closed. The proviso is consistent with the position taken in Missouri cases prior to its enactment in 1943. Pullis v. Pullis, 127 Mo. App. 294, 299, 105 S.W. 275, 276; Nord v. Nord. Mo. App., 91 S.W.2d 223, 226; Derge v. Hill, 103 Mo. App. 281, 77 S.W. 105.
Defendant has failed to establish his contention.
[924] Defendant had the burden of proof on the issue of a gift of the $40,000 check.
The general rule is that the burden of proof rests upon the party, as determined by the pleadings, asserting the affirmative of an issue. Griffith v. Continental Casualty Co., 299 Mo. 426, 253 S.W. 1043, 1048[8]; Clapper v. Lakin, 343 Mo. 710, 123 S.W.2d 27, 33. Plaintiffs alleged that the $40,000 check was wrongfully converted by defendant to his own use; that it was not a gift; and that the execution, endorsement and delivery of the check were the result of undue influence exercised by defendant over Jerry Wolf. Defendant alleged the $40,000 check was a gift; that he cashed the check the following day, and denied generally plaintiffs' charge of undue influence.
Plaintiffs contend that a donee of personal property has the burden of proving by clear, cogent and convincing evidence every element of a gift (cases, next paragraph), while stating that a plaintiff who seeks to set aside an executed, acknowledged and delivered voluntary deed has the burden of proving the deed is void (citing Stalleup v. Williamson, 361 Mo. 440, 235 S.W.2d 318, 321[2], cases there cited, and Reaves v. Pierce, Mo., 26 S.W.2d 611, 617[7,8]. Consult Burke v. Adams, 80 Mo. 504, 511 (III), 50 Am. Rep. 510; 26 C.J.S. 598, § 187; 16 Am. Jur. 513, §§ 135-137, 384, 385, 389).
Under the pleadings defendant affirmed and plaintiffs denied the gift of the $40,000 to defendant. Defendant's plea is in confession and avoidance. He judicially admits the $40,000 originally was the property of Jerry Wolf, making out a prima facie case against himself when he claims ownership thereof as a gift from Jerry Wolf. Defendant had the affirmative and the burden on the issue of a gift. Tygard v. Falor, 163 Mo. 234, 245(5), 63 S.W. 672, 675(5); Spencer v. Barlow, 319 Mo. 835, 5 S.W.2d 28, 32(III. IV); State ex rel. Smith v. Bland, 353 Mo. 1073, 186 S.W.2d 443, 444[2-4]; Dorrell v. Sparks, 142 Mo. App. 460, 464. 127 S.W. 103, 105.
The cases of Hornsey v. De Voto, 223 Mo. App. 340, 16 S.W.2d 630, 633, and Chandler v. Hedrick, 187 Mo. App. 664, 173 S.W. 93, are distinguishable. The Hornsey case was remanded for retrial, the issue of a gift being for the jury although the evidence preponderated in favor of the donee. In the Chandler case the defendant claimed the property as compensation for services and not as a gift.
The essentials of a valid gift of personal property are a present intention to make a gift on the part of the donor, a delivery of the property by the donor to the donee, and an acceptance by the donee, whose ownership takes effect immediately and absolutely. Trautz v. Lamp 329 Mo. 580, 46 S.W.2d 135, 144; 38 C.J.S. 786, §§ 10, 15; 24 Am. Jur. 738, §§ 20-22. Plaintiffs do not question that a delivery sufficient to complete an inter vivos gift of a check occurs when the donee cashes the check. Pennell v. Ennis, 126 Mo. App. 355, 359, 103 S.W. 147, 148; Perry v. First Nat. Bk., 228 Mo. App. 486, 68 S.W.2d 927, 928. They say it was for the jury in the instant case to find whether the delivery was with the intent to give; that personal property or a check may be delivered conditionally or for a special purpose only, as with an intent to create a loan, a trust, a bailment or to enable an agent to perform the purpose of his agency. An intention to give does not constitute a gift without an unconditioned and complete delivery. Neither does a delivery constitute a gift unless made with an intention to give.
Jerry Wolf did not say what the $40,000 check was for. He stated that "Ed and Mamma" would pay the income tax. This indicated he did not expect to pay the income tax and that his wife would be interested in its payment. A jury could find from the evidence that the net income from the real estate was not sufficient for Mrs. Wolf's support and maintenance. Defendant did not express surprise or ask what the check was for. He must have known. He manifested no appreciation of a gift of $40,000. He said nothing. He did not disclose to his [925] sisters that he had received a gift. His letter to a sister stated "quite a bit" was required to take care of inheritance taxes on what the mother received from the father's estate, whereas the record indicates that she did not receive anything subject to such a tax. The inheritance and estate taxes on both estates appear to have been under $1,300, and the Federal tax resulted from the $40,000 check. Defendant must have known this. Defendant and Mrs. Wolf applied her $3,400 widow's allowance to the payment of Jerry Wolf's income taxes. The above and other facts were for the jury's consideration on the issue whether a gift was intended. Jerry Wolf's intent in issuing the check under the facts of record is for a jury to determine and is not to be solved as a matter of law. Defendant had the burden on this issue. Lewis v. Lewis, 354 Mo. 415, 189 S.W.2d 557, 560 [5-9, 12]; Roethemeier v. Veith, 334 Mo. 1030, 69 S.W.2d 930, 934[11]; Hall v. Knappenberger, 97 Mo. 509, 11 S.W. 239; Re Diehl's Estate, Mo. App., 239 S.W.2d 523, 526; Walker v. Travis, Mo. App., 125 S.W.2d 79, 80[1]; McCune v. Daniels, Mo. App., 225 S.W. 1020, 1022[6]; Schwalbert v. Konert, 230 Mo. App. 811, 76 S.W.2d 445, 449[1]; Foley v. Allen, 170 F.2d 434, 437[3, 4]; Fitzpatrick v. Graham, 122 F. 401, 404; Wright v. Bragg, 106 F. 25, 31; 38 C.J.S. 790, § 15, p. 891, § 69; 24 Am. Jur. 738, § 21, p. 798, §§ 131-134.
Undue influence in law is such overpersuasion, force, coercion, or deception as substitutes the will of another for that of a testator, grantor or donor. Halm v. Brueseke, 348 Mo. 708, 155 S.W.2d 98, 106[8]; McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698, 706. It must be operative at the time to invalidate a transaction. Hahn v. Bruescke, supra; Wright v. Stevens, Mo., 246 S.W.2d 817, 821. In addition to the existence of a fiduciary relation, to raise a presumption of undue influence, there must exist evidence from which it can be inferred that the fiduciary-beneficiary "had been active in some way which caused or assisted in causing the execution of the" instrument. Loehr v. Starke, 332 Mo. 131, 56 S.W.2d 772, 777; Baker v. Spears, 357 Mo. 601, 210 S.W.2d 13, 17. Such activity may be proved by circumstantial evidence; but the circumstantial evidence to raise the presumption of undue influence must be substantial evidence permitting of the inference and may not rest on conjecture or be inferred from mere suspicion or an opportunity to influence. Baker v. Spears, supra; McCoy v. McCoy, supra; Shaw v. Butler, Mo., 78 S.W.2d 420, 428; Norris v. Bristow, 358 Mo. 1177, 219 S.W.2d 367, 369[4].
The rule that a confidential and fiduciary relation exists between partners with respect to partnership transactions (Schneider v. Schneider, 347 Mo. 102, 146 S.W.2d 584, 589[19]; 40 Am. Jur. 217, § 128; 68 C.J.S. 516, § 76, n. 31) does not preclude such fiduciary relation extending to the personal affairs and property of a partner if trust and confidence born of the partnership relation be established to extend to personal transactions. "The origin of the confidence and the source of the influence are immaterial." 36 C.J.S. 745, n. 59; Manahan v. Manahan, Mo., 52 S.W.2d 825, 828.
Plaintiffs contend that the cumulative effect of a number of circumstances amounting only to a suspicious circumstance when viewed separately, each being insufficient in itself to make a prima facie case and not directly connected with the others, may constitute substantial evidence of undue influence. Bohnsack v. Hanebrink, Mo., 240 S.W.2d 903, 907, 908; Look v. French, 346 Mo. 972, 144 S.W.2d 128, 131[2, 14]; Patton v. Shelton, 328 Mo. 631, 40 S.W.2d 706, 714[16]. They say that if the case is on the border line, and we so view the instant issue, the fact that the legacy or the grant was contrary to the expressed intent of the testator or grantor before or after the transaction and, a fortiori, his expressed intent at the time of the transaction a prima facie case is pieced out for the jury. They cite, among others, cases supra, this paragraph; Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842, 846; Holland v. Anderson, [926] Mo., 196 S.W.2d 175; Hamilton v. Steininger, 350 Mo. 698, 168 S.W.2d 59, 68; Dimity v. Dimity, Mo., 62 S.W.2d 859; Manahan v. Manahan, Mo., 52 S.W.2d 825.
Plaintiffs stress the following facts of probative value on the issue of undue influence, conceding that any one of said facts in itself is not sufficient for the submission of said issue. That the fiduciary-beneficiary was present at the time. Clark v. Powell, supra; McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698, 707[22]. That, evidently considering from Jerry Wolf's statements and acts he contemplated his early demise, a $40,000 gift, disinheriting his wife and daughters, was unnatural. Dimity v. Dimity, Mo., 62 S.W.2d 859, 863; Look v. French, 346 Mo. 972, 144 S.W.2d 128, 132[10]. That the donor was aged, ill and of declining mental vigor. Re Kaimann's Estate, 360 Mo. 544, 229 S.W.2d 527, 530; Bohnsack v. Hancbrink, Mo., 240 S.W.2d 903, 907[6]; Colquitt v. Lowe, Mo., 184 S.W.2d 420, 421[2, 6]; Morris v. Morris, Mo., 4 S.W.2d 459, 463. That Jerry Wolf executed his will at the time he executed the $40,000 check, and by his will and by statements and conduct prior and subsequent thereto evidenced his intent that his wife have his property. Canty v. Halpin, 294 Mo. 96, 242 S.W. 94, 96[5, 6]; Morris v. Morris, supra; Gobel v. Kitchen, 217 Mo. App. 354, 266 S.W. 992, 993; Mumford v. Mumford, Mo. App., 194 S.W. 898, 900. That defendant concealed the transaction and his claim of a gift. Dimity v. Dimity, supra; Manahan v. Manahan, Mo., 52 S.W.2d 825, 829.
The plaintiffs testified that their father was not mentally weak. One of the plaintiffs stated that on account of illness he was not as mentally alert as prior to becoming sick. Other witnesses for plaintiffs testified that his mental condition was all right and that he was positive and did what he wanted to do. Pat Corcoran, plaintiffs' witness, testified that Mr. Waxman was Jerry Wolf's lawyer. Defendant brought Mr. Waxman to the home on the occasion in question. Mr. Corcoran's testimony was to the effect that Jerry Wolf was the directing head in the issuance of the check, and, although it was written as Mr. Waxman suggested, the act was the act of Jerry Wolf and neither defendant nor Mr. Waxman dominated and controlled Jerry Wolf's mind so that the check represented defendant's and not Jerry Wolf's wishes. We conclude the record does not disclose the weakened mental faculties, the close fiduciary relation, or the fiduciary's activity connected with the transaction found in plaintiffs' cases. The issuance of the check for whatever purpose Jerry Wolf had in mind appears from evidence of plaintiffs' witnesses to have been the expressed desire of Jerry Wolf and his voluntary act. Opportunity for the exercise of undue influence existed, but the record does not inferentially establish that it was exercised. Plaintiffs have not established error on this issue. See, among others, Larkin v. Larkin, Mo., 119 S.W.2d 351, 356-8; Knadler v. Stelzer, 323 Mo. 499, 19 S.W.2d 1054, 1059-60; Walter v. Alt. 348 Mo. 53, 152 S.W.2d 135, 143-5; State ex rel. v. Hughes, 356 Mo. 1, 200 S.W.2d 360, 362-4; McCoy v. McCoy, 360 Mo. 199, 227 S.W.2d 698, 705-8; Buckner v. Tuggle, 356 Mo. 718, 203 S.W.2d 449, 452-3; Baker v. Spears, 357 Mo. 601, 210 S.W.2d 13, 17, 18.
The judgment is reversed and the cause remanded for trial on the issue of a gift. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.