Costello v. Brune , 217 Mo. App. 587 ( 1925 )

^* Headnotes 1. Executors and Administrators, 24 C.J., Section 1122; 2. Executors and Administrators, 24 C.J., Section 1122; 3. Husband and Wife, 30 C.J., Section 298; 4. Husband and Wife, 30 C.J., Section 299. The respondent in this case filed a claim in the probate court against the estate of Celia Costello consisting of the following items:

To payment on sewer bill ............... $ 50.00 To payment of City Taxes, 1918 ......... 10.11 To payment on County Taxes, 1918 ....... 16.69 To payment on insurance ................ 12.03 _______ $88.83

Also on special curbing tax bill paid on Lot 84 Ozark Land Company's Second Add. ................................... $137.23 _______ $226.06

On trial the claim was allowed in full. An appeal was taken by the administrator to the circuit court where the claimant was again successful and the administrator appealed to this court.

The claimant was the husband of the deceased at her death and his contention is that the sums of money making up the items of this action were debts of the deceased and were paid by him out of his own funds. The only question to be determined by us on this appeal is whether the evidence will sustain the judgment.

We find that when his wife died, the claimant was appointed administrator of her estate and served a short time in that capacity. While acting as administrator he was expecting to go away for a time and before going asked the probate judge what he should do before he went away and the judge told him that if there were any bills against the property to square them up. Acting on that suggestion he paid the taxes and insurance out of his own money. We think his conversation with the probate judge furnished a sufficient basis to sustain a finding that the items of taxes and insurance paid by the claimant were not voluntary payments but were made with the expectation that he would be reimbursed. As to these items we think the evidence supports the finding of the trial court.

As to the other items of the account, to-wit, payment on sewer bill of $50; a curbing tax bill of $137.23, we do not think the evidence sufficient to sustain a finding for claimant. The evidence on part of respondent and appellant taken altogether tended to show that these two items were paid by the claimant, M.C. Costello, but does not show that the payments were made from his own funds. The strongest evidence in favor of claimant is the fact that he, in person, in the absence of his wife, handed the money to the holder of the tax bills to be created thereon. Along with this, however, we also find the following state of facts. Mr. Costello and his wife each had separate incomes. He drew a pension of $57 each quarter and collected rents on two houses amounting to $20 per month. His wife collected rent on one house amounting to $8.50 per month and at times kept one or two boarders from whom she received pay for board. It was further shown that Mrs. Costello handled all the money. When Mr. Costello received money he turned it over to her and when bills were to be paid she would hand him the money and direct him to pay the bills. From these facts there is but one conclusion to be drawn and that is that the monies of both these parties were intermingled together and handled as a common fund and all bills and the obligations of both parties paid out of that fund. That being true, there is no way to determine how much of any bill paid by Mr. Costello was paid out of his money and how much was paid from money belonging to his wife. The fact that business was transacted in that way would also negative the conclusion that either party ever expected the other to repay any part of the money so expended. The deceased owned a life estate in the property on which the buildings insured were located and against which the special tax bills were levied.

As life tenant she would be liable for the general taxes on the property and if she had the buildings insured, which the evidence, though very meager, tends to show, she would be liable for that item. The tax bills for $50 and $137.23 were for a sewer and concrete curbing. These would appear to be permanent improvements, or at least improvements which in all probability would last beyond the life of the life tenant, but whether or not the life tenant would, alone, be liable for these, or would be required, in the first instance, to pay these bills and then look to the remaindermen for contribution, we need not decide for the reason that the proof fails to show that plaintiff paid these bills from his own money and under such circumstances as to justify a finding that he at the time expected it to be repaid to him. It is well settled in this State that when a husband purchases land with his own money and has the deed made to his wife, the presumption is that he intended it as a provision for her and in the absence of proof showing a different intention at the time, no trust results in his favor and he cannot recover back the money so paid. [Curd v. Brown, 148 Mo. 82, 49 S.W. 990; Wilhite v. Wilhite, 284 Mo. 387, 396, 224 S.W. 448; Wimbush v. Danford, 292 Mo. 588, 608, 238 S.W. 460.]

The same presumption obtains when money is paid to or for the wife by the husband. [Conqueror Trust Co. v. Craig,204 Mo. App. 650, 218 S.W. 972.]

The presumption above alluded to is a rebuttable one but the burden of proof is on the husband to show a state of facts which will rebut that presumption before he can recover money paid for his wife's benefit. If the respondent in this case had proven that the money paid on the tax bills was all his own money instead of its being paid out of a common fund belonging partly to him and partly to his wife, the presumption referred to would, in the absence of any further testimony, prevent his recovery.

The only items in this section which the evidence will support as a legal claim against the estate of the deceased are the items for city and county taxes and insurance amounting in all to $38.83.

If respondent will, within ten days remit the sum of $187.23 the judgment will be affirmed for the balance of $38.83; otherwise the judgment will be reversed and the cause remanded.Bradley and Bailey, JJ., concur.