author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Robert Gene REASK, Appellant.
    No. 51786.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Dec. 12, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, David G. Dempsey, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    David L. Campbell, James J. Rankin, St. Louis, for appellant.
   PRITCHARD, Commissioner.

Defendant was found guilty by the verdict of a jury of occupying premises for the purpose of recording bets (§ 563.350, RSMo 1959, V.A.M.S.) and his punishment was assessed by the jury at imprisonment in the County jail for a term of one year and a fine of $1,000. This being a felony conviction, we have appellate jurisdiction. Const. Mo.1945, Art. V, § 3, V.A. M.S.

On May 30, 1963, Sergeant Glen Kirchhoff of the St. Louis County Police Department began an investigation of defendant (which led to his subsequent arrest) after observing him enter the M. & M. Tobacco Store, 3625 Gravois Avenue, in St. Louis, Missouri. Defendant came out of the Tobacco store in a couple of minutes, walked to within 25 to 30 feet of Sergeant Kirchhoff who was sitting in his police car," and the Sergeant saw and recognized a “scratch sheet” being carried by defendant. On May 31, 1963, Sergeant Kirchhoff again saw defendant at the same location, going again into the M. & M. Tobacco Store and returning with a newspaper known as “Racing Forms” and a scratch sheet. On June 1, 1963, Sergeant Kirchhoff again saw defendant emerge from the Tobacco store carrying a scratch sheet. These occasions all took place about 10 :Q0 a.m., and after the June 1st observance Sergeant Kirchhoff went to 9408 Mary Glen Court in Crestwood, Missouri, arriving at 10:25 a. m., where he met two police officers from St. Louis County Police Department, Detectives Jack Patty and Richard Craig, who were in an apartment there. At 11:19 a. m., defendant arrived at the same apartments and entered 9408a Mary Glen Court, which was directly above the apartment where the three police officers were. Sergeant Kirchhoff heard no noises from the apartment above prior to the time defendant arrived, but he heard the telephone ringing and a voice speaking thereafter. He previously had not heard defendant talk. After the telephone rang the voice answered, “Yeah. I haven’t got the scratch sheets laid out yet. Wait awhile.” While the conversation was going on the voice said, “Hold on a minute. I am on the other telephone.” There were further conversations during which the voice said, “I got you down for fifty to win on the Cards”; “Okay, Phil, I got you down for one hundred on the Cards”; “Okay, McClain County in the first at Cahokia”; and “Who in the fifth at Washington Park.” These voices were heard by Sergeant Kirchhoff between 11:42 a. m. and 12:50 p. m. To the best of his knowledge no one entered or left the upstairs apartment. At 12:50 p. m., Sergeant Kirchhoff left the apartment and met Captain Vassel, Sergeant St. Onge and Chief Al Steimel (of the Crestwood Police Department), after which he and the other officers went to the front door at 9408a Mary Glen Court and Captain Vassel knocked loudly on the door numerous times, to which there was no response. The officers then gained entrance to the apartment by breaking the bottom half of the door, after which Kirchhoff saw defendant, who was the only person there. There were four rooms in the apartment, two of which were bedrooms. There was also a bathroom located between one bedroom and the kitchen. There was a table in the southeast room upon which were two telephones, a radio, a clock ashtray and a piece of paper. The telephones rang while Kirchhoff was there and he answered them, roughly, twenty-five times. One of the voices wanted to place money on “Gold Security” in the first at Cahokia; one wanted to know what he owed; a female called wanting to know where “Bucky” was; one voice said, “Twenty to win on Teddy Galvin in the first at Washington Park”; one wanted to bet two hundred on the Cards to win; another wanted to bet twenty on the Cards; and there was another wanting to know what the odds were on the Cards. The telephones were removed by Southwestern Bell Telephone Company and the service disconnected at 3:00 p. m. After defendant’s arrest Kirchhoff purchased a scratch sheet and Racing Form for the purpose of checking the horses that were running that date against the telephone conversations. The scratch sheet showed a horse named “Gold Security” in the first race at Cahokia, also “McClain County” in the first race. On the “Daily Racing Form” there was a horse by the name of “Teddy Galvin” which was to run that day at Washington Park, Home-wood, Illinois.

On cross-examination, Kirchhoff testified that he did not have a search warrant, nor did the other officers have one that he knew of. The racing form such as he purchased is available all over St. Louis and in the metropolitan area on public newspaper stands — it is not against the law to buy one.

On re-direct examination, Kirchhoff testified that prior to the time defendant was arrested he did not make an investigation to learn who was the lessee of the apartments, and he did not know to whom they were leased.

Captain Fred J. Vassel testified that he assisted in defendant’s arrest. Vassel was a captain of the St. Louis County Police Department. With him at the time were Phil St. Onge, a sergeant; Kirchhoff, Detective Jack Patty, Richard Craig and Chief Steimel of the Crestwood Police Department. Vassel personally knocked on the door and shouted, “Police Officers open the door.” No one came to the door, and after two or three minutes he forcibly opened the door — kicked it in, and found defendant and no one else inside the apartment. There was only one entrance to the apartment — the front door, with another door leading onto a balcony which was ten or twelve feet high. He saw no one enter or leave the premises for the fifty minutes he was there watching them. Vassel was in charge of the investigation, the other officers present acting under his direction. Vassel did not have a search warrant to enter the premises.

Phil St. Onge was a sergeant of the St. Louis County Police Department on June 1, 1963, being on that day with Captain Vas-sel. He assisted in defendant’s arrest. Prior to going to the apartment, they picked up Chief Steimel of the Crestwood Police Department at its City Hall. St. Onge identified seven plastic envelopes, State’s Exhibit 14, containing charred paper which he recovered from a metal pot or pan on the floor of the apartment.

Officer William Sahm, attached to the Bureau of Identification, Secret Service Division of the St. Louis County Police Department, arrived at the apartment where defendant was arrested about 2:00 p. m. on that day, with Detective George Randolph. On arrival, Sahm collected the contents of the seven plastic envelopes, State’s Exhibit 14, containing charred paper. He was able to read with his naked eye on the bits of charred paper the words “Seven”; “entry”; “Addition”; “Dynamite”; “Second”; “First”; “2 o’clock”; “Three year”; “Pony”; numeral “6” and numeral “7” with the word “Gold” behind it; “Fifth” and “109”; “112-1”; “110” and “2-10”; “116”; “4-4”; “Truman”; etc. These numerals are the same as appear on State’s Exhibit 11, a scratch sheet. Other words on the charred paper are: “Time S :20”; “Ancient Greek”; “Smoke Stack”; “Robin”; “Dazzle Dancer”; “Dynamite”; “Addition”; “6 Furlong”; the latter word appears on State’s Exhibit 11. Other words and figures appear on the charred bits of paper matching words and figures on the Cahokia Downs racing form. Officer Sahm also collected from a folding card table, on which were located two telephones, four ballpoint pens (3 blue and 1 black) and an edition entitled “Baseball News.” On this edition, showing the games being played on Saturday, June 1, 1963, the Cardinals were playing San Francisco. Writing inserted in this area, where the two teams were listed, shows the numerals “10 over 11,” with the words “Fischer” behind San Francisco and “Taylor” behind St. Louis, as probable pitchers. Some adding machine tape and wrinkled paper were also collected from the waste can and top of the card table. These bore the handwritten numerals “1 dash 2, 1 dash 3, 1 dash 4”; “1 to 9; 3 to 9, 4, 5, 4, 5” on down. Sahm also found black material, which appeared to be charred paper, on the bath mat directly in front of the toilet bowl in the bathroom.

On cross-examination, Sahm testified that he found no money upon a search of defendant.

George Randolph, a detective of the St. Louis County Police Department, in the Bureau of Identification also, went to the apartment at 9409a Mary Glen Drive in the City of Crestwood, in St. Louis County, on June 1, 1963, arriving at about 2:00 p. m. He was summoned by Captain Vassel, with Gustave Sahm. Upon arrival Randolph took several photographs (State’s Exhibits 27, 28, 29, 30 and 31) of the southeast room of the apartment.

Detective Jack Patty was also at the premises when defendant was arrested, going there with Detective Craig, and arriving about 10:00 in the morning and first sitting outside in an unmarked police car. He received a radio call from Kirchhoff stating that the person they were interested in was on the way. He saw defendant arrive from the apartment at 9408 Mary Glen Court, and after defendant arrived he heard telephones ringing from the apartment directly above. He heard a man’s voice say “Fifty on the Cards”; “That’s one hundred dollars on the Cards”; “Cahokia Downs”; and “Washington Park.” Afterwards, Patty assisted in the arrest of defendant, breaking down the door to enter.

On cross-examination, Patty testified that he heard the telephone conversations above with his “bare ears,” with no listening device.

Richard E. Craig, also a detective of the St. Louis County Police Department, went to the premises with Kirchhoff and Patty and saw the defendant arrive there. He also heard conversations from the overhead apartment: “Yeah, I got you, fifty to win on the Cards”; “Yeah, Phil, one hundred on the Cards”; “Third and fifth at Cahokia. How come you are not going with your boosters (?) the Cards ?”

Chief Al Steimel, chief of police for the City of Crestwood, St. Louis County, for fifteen years and on June 1, 1963, went to 9408a Mary Glen Court on that date, at the request of Vassel and St. Onge. He arrived there about noon and entered 9408a premises, where he observed defendant. He did not search defendant, nor did he see him searched. Defendant was taken to his offices for booking.

Among the racing results of the St. Louis Post Dispatch for Sunday, June 2, 1963, for Cahokia, appear the results of the first race with names “McClean County” and “Gold Security.” On Monday, June 3, 1963, the baseball results for Saturday were: “National League, Cardinals 7, San Francisco 4.”

Geraldine Birkel had been the manager of the apartments where defendant was arrested for fifteen months. She had leased the premises at 9408a Mary Glen Court to a man by the name of Harold Herman, commencing May 1, 1963. She testified she had seen Herman on two or three occasions, and that defendant and Herman were not the same person.

The two telephones were installed in the name of Harold Herman on April 20, 1963 and in the name of Robert Hunter on May 1, 1963, according to installation records of Southwestern Bell Telephone Company.

After the state rested its case, and in chambers, defendant, by counsel, objected to the introduction of the tape in the adding machine (prior to the showing of exhibits to the jury) on the grounds that there was no explanation as to what the tape was, and there was no attempt to identify the tape, and that it was hearsay.

Defendant’s first point is that the indictment is “unconstitutionally void and of no effect because it fails to charge any cause of action against the defendant in that it charges offenses in the alternative and in the disjunctive and not in the conjunctive and because it does not apprise the defendant of the nature of the charges against him.” The pertinent portions of the indictment of the grand jury are that defendant “did then and there wilfully, unlawfully and feloniously occupy certain premises known as 9408a Mary Glen Court, Crestwood, Missouri, with certain turf programs, listings of certain baseball games containing odds for betting thereon, and certain telephones, all for the purpose of recording or registering bets and wagers upon the results of trials or contests of skill, speed, or power, or endurance of man or beasts, to wit: horse racing and baseball games, which were to be held or were to take place within and without the State of Missouri; contrary to Section 563.350, Missouri Revised Statutes, in such case made and provided, and against the peace and dignity of the State.” (Emphasis defendant’s.)

The portions of said § 563.350 as here applicable are:

“Any person who occupies any room, shed, tenement, tent, booth or building, or any part thereof, in this state, and who occupies the same with any book, instrument or device for the purpose of recording or registering bets or wagers or selling any pools upon the result of any trial or contest of skill, speed or power of endurance of man or beast which is to be made or to take place within or without this state; or any person who records or registers a bet or wager, or sells pools, upon the result of any trial or contest of skill, speed or power of endurance of man or beast which is to be made or to take place within or without this state, or to register a bet on a horse race, either on a blackboard or any other substance, or to telephone a bet on a horse race to any other state to be registered there, or telegraph a bet for such purpose, or to use any other instrument or device to accomplish or register the bets, * * * shall, on conviction, be adjudged guilty of a felony, * * * »

The wording of the indictment does not follow the rule of the cases that where a statute sets forth separate acts of an offense in the disjunctive the charge of the commission of such acts must be in the conjunctive in order that defendant may properly be apprised of the offense charged. State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198; State v. Settle, 329 Mo. 782, 46 S.W.2d 882; State v. Fox, Mo., 46 S.W.2d 544; State v. Barr, 326 Mo. 1095, 34 S.W.2d 477. The indictment does, however, substantially charge the offenses in the words of the statute, and we do not subscribe to defendant’s suggestion that all the words used are not synonymous. Webster’s New International Dictionary, Second Edition, defines a “trial” as: “1. The action or process of trying or putting to the proof; subjection of a person or thing to a test, examination, participation in a contest or competition, or the like; * * (Our emphasis.) The words “skill, speed, power and endurance,” while not synonymous, do relate to the same condemned ultimate acts: recording or registering bets or wagers upon the results of horse racing and baseball games, and are merely descriptive of the activities of those trials or contests. So also with the words “man or beasts” as merely being descriptive of the participants of the trials or contests of baseball games and horse racing. The words of the indictment fairly charged and apprised defendant of the gravamen of the offense. Stated more briefly: that he occupied certain premises with betting equipment for the purpose of recording or registering bets and wagers upon the results of horse racing and baseball games. Clearly defendant knew, as would anyone, that this was the nature of the charge against which he would have to defend. He was not misled. Defendant’s first point is overruled.

Prior to trial defendant moved the court to suppress evidence seized at the time and place of his arrest. The articles taken were telephones, charred paper, adding machine tape, pencils, wrinkled paper, charcoal lighter, metal tray, and photographs were made of the interior of the apartment. Defendant’s motion also was directed at suppressing evidence of the conversations overheard in the apartment by the police officers (who were situated in the apartment below 9408a). The ground of the motion, which was overruled by the trial court, was that the evidence was the product of an unconstitutional search and seizure, as here raised in defendant’s Point II.

The evidence of the state was that one Harold Herman was the lessor of the apartment in question at the time of defendant’s arrest and the seizure of said articles of evidence. The first inquiry is, of course, the lawfulness of defendant’s arrest. This inquiry turns upon the question of whether defendant was committing a felony within the presence of the arresting officers. The evidence is that defendant was in the act of recording or registering bets and wagers upon horse racing and baseball game results in the presence of the officers — i. e., within their hearing, and so the jury could find. Defendant’s suggestion, without citation of authority, that the officers’ eavesdropping from the apartment below rendered his arrest illegal and the search unreasonable, is disposed of by the extensive discussion of the validity of such eavesdropping evidence in State v. Spica, Mo., 389 S.W.2d 35 et seq. (cert. den. 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312). The whole train of events, from officer Kirchhoff’s observance of defendant in possession of racing forms and scratch sheets to the overheard telephone conversations relating thereto, reasonably led the officers to arrest defendant. In State v. Cantrell, Mo., 310 S.W.2d 866, it was held that the police officers, after observing defendant’s and other occupants’ suspicious actions of a slowly driven automobile in the early morning hours stopped the vehicle after which they saw a loaded rifle therein, could not be said to have acted arbitrarily or unreasonably in arresting defendant. The facts of that case show far less suspicious circumstances than the present case. Here, on two prior occasions Sergeant Kirchhoff observed defendant in the possession of racing forms and a scratch sheet. It is reasonable to believe that any suspicions he had that defendant was engaged in violating said statute were confirmed when he and the other officers overheard defendant’s telephone conversations reasonably relating to taking bets and wagers on horse races and baseball games in the apartment above them. This led them reasonably to believe that a felony was being committed by defendant. In such circumstances legality was lent to the arrest without a warrant therefor. State v. Redding, Mo., 357 S.W.2d 103; State v. Witt, Mo., 371 S.W.2d 215; State v. Napper, Mo., 381 S.W.2d 789. The further inquiry is whether the officers, without a warrant, could legally enter the apartment where defendant was situated, arrest him and make a search of the premises. This depends on whether defendant was in a place protected by unlawful searches and seizures under U.S.Const., Amend. IV, and Mo.Const.1945, Art. I, § 15. The evidence, as noted, tends to show that defendant did not own or lease the apartment. This fact, plus the reasonable ground for arrest as above related, entitled defendant to no constitutional protection. Not only was the felony being committed in the officers’ presence, but defendant was not in a place under his control or possession, either as tenant or owner. See State v. Pinto, 312 Mo. 99, 279 S.W. 144; State v. Askew, 331 Mo. 684, 56 S.W.2d 52; State v. Green, Mo., 292 S.W.2d 283; State v. Cantrell, supra; State v. Martin, Mo., 347 S.W.2d 680, all holding in effect that where a defendant fails to prove that he was either the owner or the person entitled to possession of the premises which were searched, the motion to suppress seized evidence was properly denied.

Defendant says further that the St. Louis County Police officers had no constitutional authority to make arrests in areas within incorporated areas in the county, citing Mo.Const.1945, Art. VI, § 18(c), and referring to State on Information of Dalton ex rel. Shepley v. Gamble, 365 Mo. 215, 280 S.W.2d 656, which held that the ordinance and charter amendment which gave birth to the St. Louis County Police Department (and which provided for the jurisdiction of the police in the incorporated area pursuant to contract with the governing body of the incorporated area) were constitutional. Defendant contends that there was no showing that such a contract existed, therefore the arrest by St. Louis County Police officers was illegal. The burden of proof that the arrest was invalid being upon defendant, State v. Duisen, Mo., 403 S.W.2d 574, 576 [3-5], it was incumbent upon him to show that no such contract existed between the City of Crestwood and St. Louis County. Furthermore, Chief A1 Steimel of the Crestwood Police Department was at least present and participating in defendant’s arrest, he made the subsequent booking and the list of defendant’s property was handled by the St. Louis County police at Chief Steimel’s request.

The arrest being lawful, according to this record, the arresting officers had the right to seize the evidence (relating to the commission of the crime) introduced at the trial. State v. Brookshire, Mo., 353 S.W.2d 681. These objects, as the record shows, were in plain view of the officers within the apartment, which also gave to them the right to seize such evidence. State v. Reagan, Mo., 328 S.W.2d 26; State v. Engberg, Mo., 377 S.W.2d 282.

The matters discussed above dispose of defendant’s contentions raised in his Point II relating to the validity of his arrest and the search of the apartment where he and the seized evidence were located. Point II is overruled.

By Point III defendant contends that the trial court erred in admitting into evidence posed photographs and the posed adding machine and adding machine tape because they were hearsay and irrelevant. We find no objection whatsoever as to the admission of the photographs into evidence. Absent a timely objection in the trial court, prior to the admission into evidence of an exhibit, defendant may not raise an issue thereon for the first time on appeal. State v. Hernandez, Mo., 325 S.W.2d 494, 496 [3, 4]; State v. Griffin, Mo., 339 S.W.2d 803, 805 [4, 5]; State v. Deutschmann, Mo., 392 S.W.2d 279, 283 [7, 8]. We also find no objection to the adding machine. Defendant did make a timely objection to the adding machine tape prior to its being viewed by the jury upon the grounds, “that the tape in the adding machine apparently consisting of a series of figures which were added coming to substantial amounts and there is no explanation in the testimony as to what the tapes were from any witness and no attempt by any witness to explain or identify this tape in any way. My objection, therefore, is that this Exhibit No. 19, this tape in the adding machine, was rank hearsay and gave license to the jury to speculate and guess as to what the meaning of it might be, and thereby deprive the defendant any right of cross-examination or confrontation as guaranteed by the Constitution of the United States and the State of Missouri.” Three photographs in evidence show the adding machine with a tape in it. Officer Sahm testified that he saw the tape in the apartment where defendant was arrested. His initials appear on the tape which was the way it was when he first saw it. Nothing further was offered by the state to prove anything about the tape or anything about the columns of figures thereon. No hearsay testimony was elicited, and the tape was admissible as a part of the evidence that defendant was conducting a wagering enterprise on the premises — i. e., that the adding machine was being used to record and add numbers along with the other equipment in the apartment, as the jury could reasonably find. It was therefore relevant to the issue of defendant’s guilt of the charge: occupying premises for the purpose of recording bets. Nothing was sought to be shown about the exhibit of a hearsay nature in these circumstances. Point III is overruled.

Defendant’s Point IV attacks Instruction No. 1 of the state on the grounds that it contained a comment on the evidence and thus invaded the province of the jury; it was in variance with the statute (said § 563.350); and because it permitted the jury to find him guilty without requiring it to find the essential element of the crime charged that defendant possessed “books, instruments or devices” for recording bets as required by statute.

Instruction No. 1 required the jury to find beyond a reasonable doubt that defendant occupied the premises known as “9408a Mary Glen Court, Crestwood, in the County of St. Louis and State of Missouri, with certain articles as mentioned in the evidence consisting of turf programs, listing of certain baseball games containing odds for betting noted thereon, and certain telephones, or any part thereof, and if you further find and believe from the evidence beyond a reasonable doubt that the defendant did occupy the said premises with the said articles, if you so find, for the purpose of recording and registering bets and wagers upon the result of trials or contests of skill, speed or power or endurance of man or beasts, to wit: baseball games and horse races which were to be held or to take place within and outside the State of Missouri, then you will find the defendant guilty * * The italicized portions are the ones defendant attacks as being a comment on the evidence.

There was evidence that defendant was in the apartment with the articles, turf programs (racing news and scratch sheets with the names and odds of horses running thereon), the baseball games to be played, and telephones. The instruction requires the jury to find those facts, and does not assume as true (without proof) the same so as to bring the instruction within the condemnation of defendant’s cited cases of State v. Rutherford, 152 Mo. 124, 53 S.W. 417; State v. Chinn, 153 Mo.App. 611, 133 S.W. 1196; State v. Smith, Mo., 252 S.W. 662; State v. Shields, 296 Mo. 389, 246 S.W. 932; State v. Johnson, Mo., 234 S.W. 794; and State v. Tatman, Mo.App., 291 S.W. 151. Rather, the instruction predicates a finding of defendant’s guilt upon the finding that he occupied the premises with the betting or wagering equipment, and further, a finding for the purpose of recording bets and wagers upon the results of trials or contests of skill, etc. State v. Worley, Mo., 353 S.W.2d 589, 595 [5, 6]; State v. Chernick, Mo., 303 S.W.2d 595, 599 [4, 5]; State v. Wyatt, Mo., 276 S.W.2d 86, 89 [3]. In the latter case, the court noted that the closing words of the instruction, also used here, were “and unless you so find all the facts to be, you will acquit the defendant.” The instruction also requires a finding, beyond a reasonable doubt, that the baseball games and horse races actually took place. There was evidence of those facts in documents introduced into evidence showing results of the races and games, and because of the requirement of a finding thereon by the jury, what we have said applies with equal force to defendant’s contention that the instruction assumed that the baseball games and horse races actually took place (assuming that is a necessary element of the offense). There was evidence also that the documents seized from defendant “consisted” of turf programs, and “contained” odds for betting, and there was sufficient basis for the required finding by the jury that the articles in evidence were bookmaking devices and that the notations on the baseball lists were betting odds.

There is no merit in defendant’s contention that the conjunctive submitted finding that baseball games and horse races which were to be held or to take place within and outside the State of Missouri, directed the jury’s attention to certain evidence and assumed the fact that these games and races were in fact to be held within and without the state. There was evidence that the games and races were in fact held outside the state (Cahokia Downs and Washington Park, both in Illinois, and the baseball game at San Francisco, California), and with the required finding thereon there was no assumption of fact. That there apparently were no such games and races held within this state is immaterial to the charge of bookmaking.

With respect to defendant’s further contention that the offense outlined in the instruction being at variance with the statute, he alludes to the words used in the instruction, “power or endurance,” whereas the statute (said § 563.350) uses the words “power of endurance.” Probably, this was a typographical error, but we deem that variance to be immaterial. Defendant did not raise this objection in his motion for new trial so as properly to preserve it for review, but, nonetheless, we are of the opinion that this technical variance did not prejudice defendant, especially when the instruction is read and the evidence considered as a whole; and as the words refer to baseball games and horse races specifically, it removes any doubt as to the words used.

Defendant’s last contention is that the instruction did not require a specific finding that turf programs, listing of baseball games and telephones were “devices for the purpose of recording or registering bets or wagers.” The essential elements of the offense were that defendant occupied the premises using articles (i. e., the Daily Racing Form, the scratch sheet, pencils, telephones, adding machine and tape, as the evidence shows) to record and register bets — bookmaking. It was well explained in evidence that the use of the described articles was incident to the offense charged. It was unnecessary that a further finding be required that these articles were devices for the purpose of recording bets under this record. Point IV is overruled.

We have examined the matters specified in Criminal Rule 28.02, V.A.M.R., and find no error.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

The foregoing opinion by PRITCH-ARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    In the ESTATE of William McKinley O’NEAL, Deceased. A. W. DEANER, Administrator, Respondent, v. Peggy WILSON, Administratrix of the Estate of Ollie O’Neal, Deceased, Appellant.
    No. 51905.
    Supreme Court of Missouri, Division No. 1.
    Dec. 12, 1966.

      Fred Foster, Jr., Morgan M. Moulder, Camdenton, for respondent.
    J. W. Grossenheider, Lebanon, for appellant.
   HIGGINS, Commissioner.

Proceeding under Section 473.537, V.A.M.S., in which appellant claims title to one half the personal property, valued at $39,-949.98, in the estate of William McKinley O’Neal, deceased.

William McKinley O’Neal and Ollie O’Neal were husband and wife, having been married in 1944. Mrs. O’Neal died intestate August 27, 1964, survived by her husband, four brothers and a sister, appellant Peggy Wilson. Mr. O’Neal died intestate October 23, 1964, survived by his daughter by prior marriage. Administration of Mr. O’Neil’s estate was commenced and the inventory claimed the following personal property items:

1. $7,643.30 “Joint Account,” First National Bank of Linn Creek, Camdenton, Missouri, credited to “W. M. or Ollie O’Neal,” authorized signatures, “(1) W. M. O’Neal (2) Mrs. W. M. O’Neal or Ollie O’Neal, Either or the Survivor.”
2. $25,000 time deposit certificate, First National Barjk of Linn Creek, Cam-denton, Missouri, issued to “W. M. O’Neal or Ollie O’Neal” and payable to the order of “Either of Them.”
3. $4,850 promissory note of Lloyd Wilson and Peggy Wilson, payable to “William O’Neal and Ollie O’Neal, his wife.”
4. $2,206.68 checking account, The State Bank, Lebanon, Missouri, credited to “Wm. O’Neal or Ollie.”
5. Two $25.00 U. S. Savings Bonds issued to “Mr. William M. O’Neal, P.O.D. Mrs. Ollie M. O’Neal.”
6. 1955 Ford automobile, inventory value $175.
7. 1946 Dodge pickup truck, inventory value $25.

Sometime after commencement of administration of Mr. O’Neal’s estate, administration of Mrs. O’Neal’s estate was begun and the administratrix, appellant Peggy Wilson, instituted this proceeding in the estate of William McKinley O’Neal under Section 473.357, V.A.M.S., to establish a one-half interest in the property inventoried in Mr. O’Neal’s estate. The probate court held a hearing and ordered certain of the property transferred to Mrs. O’Neal’s estate. Upon appeal and trial de novo, Section 472.250, V.A.M.S., the circuit court found that all the property in question was properly inventoried in the estate of William McKinley O’Neal and denied Mrs. Wilson’s petition.

According to Mrs. Wilson, the O’Neals were married in 1944 or 1945 when in their middle forties. Each had been previously married and divorced. Mrs. O’Neal had no children; Mr. O’Neal had one daughter. Mr. O’Neal was two years younger than Mrs. O’Neal. She stated that Mrs. O’Neal gave her husband money in 1944 to go to Kansas City to get a job. Mrs. O’Neal had owned and sold a store at Tonka Junction near Camdenton and at Punkin Center at the junction of Highways 65 and 64. Mrs. O’Neal formerly had «been a schoolteacher for six years, her education having been paid for by her brothers and father, all of whom were close to her. The O’Neals lived and worked in Kansas City, then in Ely, Nevada, for a time, and Mrs. Wilson lived there with them. Mr. O’Neal worked in a copper mine at Ely and Mrs. O’Neal worked as a hotel maid. The O’Neals returned to the Lebanon area sometime around 1949, and when Mrs. Wilson returned at a later time the O’Neals were operating the Dove store. “Ollie took care of the store and the groceries on the inside, and when Bill was there he took care of the station part of it.” Bill went fishing frequently and he sometimes took naps in the back of the store. They did business with, and deposited the earnings from the Dove store and gasoline station with, the First National Bank of Camden County and The State Bank at Lebanon. It was admitted that title to the Dove store was in William McKinley O’Neal and his wife and that when she died the property “went to him.” About two months before Mrs. O’Neal’s death, Mrs. Wilson and her husband, Lloyd, leased the store from Mr. and Mrs. O’Neal and gave them the promissory note described previously as Item 3 in the inventory in Mr. O’Neal’s estate. The store was leased because “Ollie O’Neal was sick and knew that she couldn’t take care of it and Bill couldn’t take care of it without her help.” Mrs. Wilson said also that she asked Mr. O’Neal for the use of the 1955 Ford and he replied, “Go ask Ollie, it is hers.”

Harry Lenington had lived in the Dove community since 1898. He recalled a conversation with Mrs. O’Neal shortly after the O’Neals returned from the west in which she inquired if the Dove store was for sale. “They asked me if I would speak to them when I went home that night and ask them how much they wanted for the store. So I did and they told me they wanted $7,500.00.” He did not know anything about their financial circumstances, but he later saw her operating the store. In respect to “all the time that Bill and Ollie O’Neal owned the store * * * she was there lots of days that he wasn’t.”

Lawrance Brown, a brother of Mrs. O’Neal, lived near the Dove store while it was operated by the O’Neals. During those six or seven years he saw Mrs. O’Neal every day.' They were close and talked about the “money situation.” “I * * * borrowed some money from them and they have given me a check for what I have borrowed. * * * I bought three farms since they came back here, and I borrowed the money from them to help buy them. * * * I would go to them and ask them for the money and I would generally ask him first and he would say go talk to her and whatever she has to say will be all right with me. * * * he would say just write him a check for it * * On one .occasion Mrs. O’Neal said, ‘“Bill, we had better corroborate with the bank in Cam-denton to find out what we have there.’ And he turned to Ollie and said, ‘Write him the check for thirty-five hundred.’ ” All such loan checks were signed W. M. and Ollie O’Neal or W. M. O’Neal by Ollie O’Neal. His repayments were by check drawn to the order of W. M. and Ollie O’Neal. On an occasion during her last year Mrs. O’Neal, in Mr. O’Neal’s presence, told Mr. Brown that she would like to see her brothers and sister “have my part of the estate.” He didn’t know of any money that Mr. O’Neal had prior to the marriage; Mrs. O’Neal “had a little money * * * she had some in the State Bank.” In respect to working, “ * * * she spent all of her time in the store, * * * he spent some time in there, but there was some time spent other places, such as fishing.”

Lize Bell had known Mrs. O’Neal for many years. She observed Mrs. O’Neal working in the Dove store. Bill O’Neal was around a lot of the time but was gone some of the time. The store was their only source’ of income. According to her, “(Bill) said he didn’t have anything when they were married and what they had was Ollie’s to start with, and he also said that he was willing for it to be divided like Ollie wanted.”

Clarence Cook also observed Mrs. O’Neal working in the store every day and Bill would be gone “sometimes when he went fishing.” In respect to their property, “I have made the remark to her, what in the world are you going to do with your money, and she said she had brothers and sisters to leave it to.”

Roy Brown, another of Mrs. O’Neal’s brothers, visited her “almost every month” after she got sick. “ * * * she said if anything happened to her that she would want her part of that property and that money divided between her folks and Bill’s daughter.”

Everett Brown testified that his sister “was always there working,” and as to Bill O’Neal, “Well, me and him went fishing quite a bit, quite a few times.”

Alvey Brown visited his sister, Ollie O’Neal, about every week after she was sick. He went to the store once to borrow $2500. “They talked a little bit and Bill said, ‘If we got it,’ and Ollie said, ‘Well, I don’t see any cause why we shouldn’t loan it to them * * *.’ ” They gave him the money by check and he gave them his note payable to “W. M. or Ollie O’Neal.” He paid the note to Bill O’Neal after Mrs. O’Neal’s death. He, too, testified that Mrs. O’Neal wanted her property to go to her brothers and sister, and he heard Bill say that he had no money when he married Mrs. O’Neal and “he didn’t think he would take anything with him when he left.”

Ned Draper, cashier of the State Bank at Lebanon, Missouri, identified several ledger cards and deposit slips in respect to Item 4. Almost all of them were in the name of William O’Neal. The earliest transaction of either, dated September, 1945, was in the name of Mrs. William O’Neal “to replace charge of $19.34. We lost a check and couldn’t produce it and we gave her $15.00.” The earliest ledger card was 'in the name of William O’Neal. He did not know the original name of the account or who opened it. On either February 3 or March 3, 1948, W. M. O’Neal deposited $6,988.61 in his name. Sometime between January 30, 1958, and October 2, 1958, the name “Ollie” was added in longhand to the name of W. M. O’Neal on the ledger sheets. Either Mr. or Mrs. O’Neal could draw checks on the account. Ollie O’Neal did not have a separate account in The State Bank.

Cathy Foster, assistant cashier at The First National Bank of Linn Creek at Cam-denton, Missouri, identified records of that bank concerning Items 1 and 2. The account, Joint Account 37039.5, was opened May 8, 1951, by a deposit of $1,000 to W. M. or Ollie O’Neal. Their signature card identified the account as that of “W. M. O’Neal or Mrs. W. M. O’Neal or Ollie O’Neal, either or the survivor.” Both Mr. and Mrs. O’Neal wrote checks on the account and made deposits to it. Numerous deposits were credited to the account after May 8, 1951. On June 18, 1962, W. M. O’Neal wrote a check on the account to purchase a $20,000 time deposit certificate in the names of W. M. O’Neal or Ollie O’Neal, payable to the order of “either of them” twelve months after date. On June 18, 1963, that certificate was surrendered by endorsement “Wm. or Ollie O’Neal.” The principal of that certificate, $800 interest thereon, and a $4,200 check drawn on their account by “W. M. O’Neal by Ollie O’Neal,” were used to purchase a $25,000 time deposit certificáte dated June 18, 1963, to “W. M. O’Neal or Ollie O’Neal,” payable to the order of “either of them” twelve months after date. This second certificate shows an endorsement, “W. M. O’Neal.” Item 2 is a $25,000 time deposit certificate issued June 18, 1963, the due date of the previous certificate, also in the names of W. M. O’Neal or Ollie O’Neal and also payable in 12 months to the order of “either of them.” The last certificate \y_as outstanding at the time of the death of both Mr. and Mrs. O’Neal. Mrs. Foster recalled that at the time that $20,000 was used to purchase the first time deposit certificate, both Mr. and Mrs. O’Neal were present and “Mr. O’Neal asked the question about the joint account, and if the money would have to be probated if anything happened to either one of them. * * * I explained to them that our interpretation of the joint account meant that either party could at any time draw out any or all of the money and of course, at the death of one of them, it belonged to the other one.” They made no change in their account after receipt of this information.

Mabel England, sister of Mr. O’Neal, visited the O’Neals “a lot of times” when they operated the Dove store. “ * * * he helped her and worked outside and fixed cars and he done a lot of work.” In the fall of 1943 and in 1944 her brother worked at North America Aviation in Kansas City. He married Ollie O’Neal May 19, 1944. Just prior to the marriage “he brung twelve hundred dollars and left it with my mother.” Later, he “took it back with him.”

Bertha Burrage had known Ollie all her life and knew that she had $900 at a time when she was ill shortly before her marriage to Bill O’Neal.

Beverly Bradford, Mr. O’Neal’s daughter, had lived in California since her father’s divorce. She went there first with her mother and later married and settled there. f'She visited Mr. and Mrs. O’Neal in Kansas City in 1944 and she kept in contact with her father through letters which she received “every couple of months. He always knew where I was and what I was doing. He knew all about me all of the time. * * * Ollie also wrote me a lot too.”

It was agreed that William O’Neal, W. M. O’Neal, William M. O’Neal, and Bill O’Neal are all one and the same as William McKinley O’Neal, and all described the surviving spouse of Ollie O’Neal. It appears also that the two motor vehicles, Items 6 and 7, were sold by the administrator of Mr. O’Neal’s estate without question as to title having been in the name of Mr. O’Neal.

Upon trial without a jury the circuit court found and adjudged that the property in question, Items 1 through 7, “was the property of William McKinley O’Neal, at the time of his death, and being personal property the legal title and right to possession passed to A. W. Deaner, Administrator of the estate of William McKinley O’Neal, deceased,” and dismissed the petition of Peggy Wilson, administratrix of the estate of Ollie O’Neal, deceased. Such 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.” Civil Rule 73.01(d) V.A.M.R.

Appellant’s theory is that Mr. O’Neal did not become the owner of the property upon the death of Mrs. O’Neal because “None of the items * * * conform to the requirements of the statute on joint deposits,” Section 362.470, V.A. M.S., and that the evidence did not show that the property was intended to be entirety property or to pass to the survivor.

The evidence clearly warrants finding that the bank accounts, Items 1 and 4, were held throughout the O’Neals’ marriage in the names of William McKinley O’Neal and Ollie O’Neal, and it is admitted that they were at all times husband and wife. Under such circumstances, it is not necessary to look to Section 362.470, supra, relating- to joint deposits to see if the deposits meet its requirements, nor to cases such as Jenkins v. Meyer, Mo., 380 S.W.2d 315, In re Patterson’s Estate, Mo., 348 S.W.2d 6, and Longacre v. Knowles, Mo., 333 S.W.2d 67, dealing with alleged joint tenancy between persons not husband and wife, because the accounts passed to Mr. O’Neal as entirety property. The rule is that “Where the common law as to an estate by the entirety exists, a bank deposit payable to a husband and wife is presumed to be an estate by the entirety, notwithstanding the state statutes relating to joint deposits.” McIntyre v. McIntyre, Mo., 377 S.W.2d 421, 425 [7]. The estate by entirety still exists and is not destroyed or lessened by the Missouri statutes. All the common law incidents remain, Smith v. Smith, Mo.App., 300 S.W.2d 275, 281[12]; and the estate by the entirety in a bank account exists “whether the husband or the wife, or both, furnish the money that goes into the account”, State Bank of Poplar Bluff v. Coleman, 241 Mo.App. 600, 240 S.W.2d 188, 189[1]. See also Pelsue v. Pelsue, Mo., 367 S.W.2d 487, 492 [6], where the funds in an account in the name of “Ed or Agnes Pelsue,” who were husband and wife, “were held by said parties as tenants by the entirety.” The presumption is present for another reason as to Item 1 because the signature card provides for ownership “with the right of survivorship,” and a deposit to husband or wife where the deposit or signature card shows right in the survivor raises a presumption of joint tenancy or estate by the entirety. Feltz v. Pavlik, Mo.App., 257 S.W.2d 214, 218[5]; In re Baker’s Estate, Mo.App., 359 S.W.2d 238, 244[12]. See also Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079, 1081[2].

The presumption is applicable also to the time deposit certificate, Item 2, and the promissory note, Item 3, in that “where a promissory note * * * is endorsed to the husband and wife, there is a presumption that it was intended to create an estate by the entirety. * * * It is true that this is a rebuttable presumption * * * but in order that the presumption be overthrown, the evidence must be clear, strong, unequivocal, and so definite and positive as to leave no room for doubt in the mind of the chancellor.” Glynn v. Glynn, Mo.App., 291 S.W.2d 190, 197[5]. Finally, it may be said that the bank accounts, the time deposit certificate and the promissory note, all held as they were in the names of husband and wife, were all subject to the presumption because “[fallowing the common law as we do in Missouri * * * all choses in action, payable to husband and wife or to husband or wife are presumed to be estates by the entirety.” Cullum v. Rice, 236 Mo.App. 1113, 162 S.W.2d 342, 344[4]; and “[i]t makes no difference if they are not so designated, if in fact, they are husband and wife.” State Bank of Poplar Bluff v. Coleman, supra, 240 S.W.2d 1. c. 190[2].

The evidence does not overcome the presumption of tenancy by the entirety as to Items 1 through 4. On the contrary, the presumption is strengthened by evidence tending to show, among other things: the original deposit in the State Bank account having been made by Mr. O’Neal with Mrs. O’Neal’s name being added at a later date; the original deposit in the First National Bank having been made in the names of both husband and wife; both husband and wife having made deposits and withdrawals from both accounts; purchase and surrender of time deposit certificates in the names of both husband and wife using funds on deposit to both husband and wife; the note having been made payable to both husband and wife representing a loan made from funds on deposit to both husband and wife; other loans to relatives of Mrs. O’Neal having been negotiated with both husband and wife and repaid by checks to W. M. and Ollie O’Neal; title to the store realty having been in both husband and wife and sold by the survivor’s administrator without contest; both husband and wife having been gainfully employed prior to their marriage and prior to their purchase of the Dove store; both husband and wife having worked at the store and filling station; the knowledge that the account of W. M. or Ollie O’Neal in the First National Bank would go to the survivor upon the other’s death and no change being thereafter made. Evidence tending to show that Bill O’Neal went fishing frequently and took naps at the store is not of a quality to overcome the presumption or- to rebut the evidence supporting the presumption; and if Ollie O’Neal had intended to favor any of her brothers and her sister she made no move to carry out such intention, even though ample opportunity appears to have been present. There is nothing to indicate that both husband and wife had anything less than complete trust in each other and freedom in the use and handling of their property, and both husband and wife knew, dealt -with, and corresponded with Ollie’s brothers and sister and Bill’s daughter.

Appellant does not brief any claim to Items 5 through 7. Suffice it to say then that any interest in Mrs. O’Neal in the savings bonds in the name of “Mr. William M. O’Neal, P.O.D. Mrs. Ollie M. O’Neal,” Item 5, would arise only upon her surviving Mr. O’Neal; and the motor vehicles, Items 6 and 7, appear to have been titled in Mr. O’Neal only, in that they were successfully sold by his administrator.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.


author: WELBORN, Commissioner.

text:
    Robert COYNE, Plaintiff-Respondent, v. Edward M. LAYTON et al., Defendants-Appellants. Marie J. SCHOEMEHL et al., Plaintiffs-Respondents, v. Rt. Rev. Lloyd A. SULLIVAN et al., Defendants-Appellants.
    No. 51866.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dec. 12, 1966.

      Dubail, Judge & Kilker, William C. Maier, St. Louis, for respondents Kingston Coyne and Rolland Coyne.
    Martin Schiff, Jr., Clayton, for respondent Robert Coyne.
    Jeans & Boudoures, James W. Jeans, St. Louis, for respondent Frances Hake.
    Huger, Cramer & Pollmann, Bernard J. Huger, Walter H. Pollmann, St. Louis, for appellants Edward M. Layton and others.
    Foster, Vogel & Stroh, John H. Stroh, St. Louis, for appellant Shriners Hospital for Crippled Children.
    Margaret M. Nolan, Clayton, for "appellant August Kern, Jr.
    Heneghan, Roberts & Cole, George E. Heneghan, St. Louis, for appellant St. Vincent de Paul Society.
   WELBORN, Commissioner.

This is a will contest action. The proponents appeal from a judgment, entered on a directed verdict, rejecting a purported will.

Martin J. Coyne died a resident of the City of St. Louis on October 12, 1962. Three instruments were filed in the Probate Court of the City of St. Louis, purporting to be Coyne’s last will. The earliest was dated April 29, 1959, the next February 19, 1960, and the latest July 18, 1962. On February 21, 1963, the St. Louis Probate Court entered an order, rejecting the 1962 will for the reason that the court’s records showed that Coyne had been adjudged to be a person of unsound mind on June 17, 1960. The will of February 19, 1960 was ordered admitted to probate.

Proponents of the 1962 will filed a petition in the St. Louis Circuit Court to have that instrument declared the last will of the decedent. An heir at law of the decedent filed a petition contesting the 1960 will. The two causes were consolidated. On the trial, the proponents of the 1962 will adduced no evidence of the execution of that instrument. No question is here presented regarding the judgment entered on the directed verdict against the proponents of the 1962 will.

Two attesting witnesses, C. J. O’Brien and William Litfiy, testified concerning th<* execution of the 1960 will. The third attesting witness, William J. Burns, was dead. The will was executed in the sheriff’s office on the ground floor of the Civil Courts Building. According to Litfiy, Coyne signed the will in his presence, and he and Burns signed as attesting witnesses in the testator’s presence and the presence of each other. O’Brien came in about fifteen minutes later and Litfiy was not at McHale’s desk, where the execution took place, when O’Brien came in. O’Brien testified that he did not see Mr. Coyne sign the will, but that when he came up to McHale’s desk, Mr. Coyne said: “This is my Will. Will you witness this?” O’Brien stated that he signed in Coyne’s presence. Both O’Brien and Litfiy expressed the opinion that the testator was of sound mind.

The question of insufficiency of proof of due execution of the will, upon which the trial court’s directed verdict was based, arose from Litfiy’s testimony. On direct examination, Litfiy testified that he saw Mr. Coyne sign the instrument. To the question: “Did Mr. Coyne - tell you that this was his Will ?” Litfiy replied: “He did.”

On cross-examination, Litfiy, a deputy sheriff at the time, stated that when he entered the sheriff’s office, Mr. Coyne, was at Chief Deputy McHale’s desk. (McHale’s wife, a cousin of the testator, was the beneficiary of a $1500 bequest under the will.) Litfiy stated that he “said hello to Mr. Coyne and asked him how he was; he shook hands; then I walked away from the desk and then I was called back over [by Mc-Hale].” Litfiy stated that Mr. Coyne said nothing when he went back to McHale’s desk.

“Q. You came over and Mr. McHale said to witness this instrument, isn’t that right?
“A. That’s right.
“Q. As a matter of fact, you didn’t know what the instrument was when you wrote your name down, did you ?
“A. Well, it wasn’t hard to guess.
“Q. Did you know; did anybody tell you?
“A. No.
“Q. Nobody told you, did they?
“A. No.”

On further cross-examination, Litfiy stated that the extent of Mr. Coyne’s conversation with him was to respond “Fine” to Litfiy’s inquiry concerning his health.

The trial court’s directed verdict was based upon the conclusion that “there was no testimony that the Testator had asked Mr. Litfiy to sign his Will or that he said that it was his Will * * The trial court apparently accepted defendants’ contention that Litfiy’s testimony on cross-examination repudiated his direct testimony. Here respondents state that, considering the last statement of the witnesses as the one which must be accepted, “there is no evidence whatsover that the testator, Martin J. Coyne, knew Litfiy was attesting the testator’s signature as the testator’s will, since Litfiy did not know that the instrument was the testator’s will. * * * Also, the record is completely barren of facts to establish that Martin Coyne, deceased, requested Litfiy’s signature.”

However, this position ignores the fact that the will offered in evidence included a complete attestation clause and that the witnesses identified the signatures thereto as their signatures and testified that the testator either signed in his presence, in the case of Litfiy, or acknowledged his signature, in the case of O’Brien.

In German Evangelical Bethel Church of Concordia v. Reith, 327 Mo. 1098, 39 S.W.2d 1057, 1061, 76 A.L.R. 604, the court en banc held that the rule should prevail in this state “that a complete attestation clause showing observance of all statutory requirements raises a presumption of the due execution of a will, if and after the signatures of the witnesses and testator are proven to be genuine.” The court further held that adverse testimony from the subscribing witnesses does not destroy the “presumptive evidence that the will was in fact duly executed, * * The court stated that such presumptive evidence has “inherent probative force, [and] presents a jury question no matter how convincing the evidence to the contrary may be. In this state neither the trial judge nor the appellate court can pass on the weight of the evidence in law cases.” 39 S.W.2d 1064 [8-11]. Burkland v. Starry, 361 Mo. 348, 234 S.W.2d 608, 40 A.L.R.2d 1217, extended the application of the rule to the due subscription of a testamentary instrument lacking an attestation clause. See also Potter v. Ritchardson, 360 Mo. 661, 230 S.W.2d 672, 678 [8, 9]; Annotations, 76 A.L.R. 617, 40 A.L.R.2d 1223.

Under the rule laid down in those cases, the greatest effect that could be accorded Litfiy’s testimony, considering only his testimony on cross-examination, would be to create a jury question on the matter of due execution. The direction of a verdict against the proponents was erroneous. German Evangelical Bethel Church of Concordia v. Reith, supra.

According to respondents, the trial court, in reaching its determination, relied upon Wright v. McDonald, 361 Mo. 1, 233 S.W.2d 19, and Baxter v. Bank of Belle, 340 Mo. 952, 104 S.W.2d 265. Neither case involved a presumption of due execution. Wright involved an attempt to establish a lost will. The alleged attesting witnesses were unable to state that they had attested a will of the alleged testatrix. Baxter involved the sufficiency of evidence to uphold a verdict against proper execution of a will. Neither applies to the situation here presented.

Appellants also attack the circuit court’s ruling, striking the amended answer by which they sought to establish the instrument of April 29, 1959 as the testator’s last will in the event that the attack on the February, 1960 instrument should succeed.

The 1959 and 1962 wills, along with proof of execution by the attesting witnesses of each, were filed in the St. Louis Probate Court on October 24, 1962. On November 9, 1962, the executors under the 1959 will filed a motion to reject the 1962 will and an application for letters testamentary under the 1959 will and for the probate of that document. On November 14, 1962, the 1960 will, along with proof by the attesting witnesses, was filed. On November 30, 1962, the executors, who were the same in the 1959 and 1960 wills, filed an amended application for probate of will and letters testamentary in which they prayed that the court admit to probate whichever of the 1959 and 1960 wills that it found to be the last will of the decedent. On February 21, 1963, the probate court entered an order rejecting the 1962 will, ordering the 1960 will admitted to probate and granting letters testamentary to the executors named therein. No order was made pertaining to the 1959 will. The first publication of notice of letters was made February 27, 1963.

On October 2, 1963, the petition seeking to establish the 1962 will was filed in the circuit court. On November 15, 1963, the petition contesting the 1960 will was filed. On February 14, 1964, the court ordered the causes consolidated.

On May 13, 1965, an “Application for the Admission to Probate or Rejection of a Will” was filed in the probate court. The movant was Bernard J. Huger, described in the motion as “a member of the Bar of Missouri.” The motion recited that the 1959 will, together with due proof of its execution, had been “presented” to the court within nine months of the first publication of notice granting letters testamentary, but that the document was neither admitted to nor rejected for probate. The prayer was for the admission or rejection of the 1959 will. On June 2, 1965, the probate court made an order rejecting the will.

On June 11, 1965, five of the legatees who were given identical bequests in the 1959 and 1960 wills, filed an amended answer in the consolidated cases. By their answer, they alleged the due execution of the 1959 will, that it had been duly presented to the probate court and that the probate court had rejected the 1959 will by order dated June 2, 1965. The prayer of the answer was for the admission of the 1960 will, with an a 1-ternative prayer that, in the event of its rejection, the 1959 will be declared to be the last will of the decedent.

On motions of the plaintiffs in the consolidated action and other defendants, the circuit court struck the amended answer, giving as its reason that “defendants failed to comply with the statutory period of time for filing a suit to establish will.”

In their motion for rehearing in the trial court and on this appeal, the ruling of the trial court is attacked as beyond the jurisdiction of the trial court. Appellants’ theory is that the trial court, in making its order, must have concluded that the probate court lacked jurisdiction to reject, by its order of June 2, 1965, the 1959 will. They contend that the circuit court had no authority in this will contest action to question the jurisdiction of the probate court. In support of their position, appellants rely upon Canty v. Lehmkuhl, Mo.App., 164 S.W.2d 132, and State ex rel. Shriners’ Hospitals, etc. v. Hensley, Mo.App., 385 S.W.2d 820.

However, the order of the trial court assigned as its reason for striking appellants’ amended answer that appellants “failed to comply with the statutory period of time for filing a suit to establish will.” This could refer only to the limitation's prescribed by § 473.083 for filing an action in the circuit court, since that is the only statutory provision for “filing a suit to establish will.” The circuit court does have jurisdiction to determine, under that section, the timeliness of an action before it. Black v. City National Bank and Trust Company, Mo.Sup., 321 S.W.2d 477. We cannot agree with appellants that the circuit court’s ruling was necessarily based upon its view of the probate court’s jurisdiction to enter its June 2, 1965 order. The trial court’s action might as well have been based upon the position here advanced by respondents that, as a matter of law, the 1959 will was rejected, for purposes of § 473.083, at the time of the probate of the 1960 will. It might have been based upon the theory, also here advanced, that, as a matter of law, the 1959 will was deemed to have been rejected upon the expiration, under § 473.083, of the time within which the probate court could set aside its order of probate of the 1960 will. Indeed, the trial court’s order might also have been based upon a misconception of the applicable law or upon a misunderstanding of the facts. However, “where a court has jurisdiction of the cause and the parties, it will not lose its jurisdiction by reason of an erroneous decision with respect to the facts, or the law, or both.” 21 C.J.S. Courts § 27, p. 38.

We conclude that appellants have not demonstrated error based upon the trial court’s lack of jurisdiction to strike their answers as untimely in the circuit court action. Having chosen to base their charge of error against the trial court upon that court’s lack of jurisdiction, appellants are limited to that basis of error on this appeal. Civil Rule 79.03, V.A.M.R. We, therefore, do not consider the merit of the trial court’s ruling.

The judgment of the trial court that the paper writing of February 19, 1960 is proved not to be the last will and testament of Martin J. Coyne, deceased, is reversed and the cause remanded. The order striking the amended answer of appellants herein is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Mary Lue Wade BIVINS and Reliance B. Wade, Administratrix of the Estate of Stanley K. Wade, Deceased, Respondents, v. ACE WRECKING & EXCAVATING COMPANY, Inc., Bobby Lou McCormick, Respondents, and State Automobile and Casualty Underwriters, Appellant.
    No. 51931.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied and Opinion Modified on Court’s Own Motion Dec. 12, 1966.
    E. E. Thompson, Thos. J. Conway, Jr., Edgar S. Carroll, Kansas City, William Harrison Norton, North Kansas City, Pop-ham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondents Mary Lue Wade Bivins and Reliance B. Wade, Adm’x of Estate of Stanley K. Wade, deceased.
    William H. Sanders, Dean F. Arnold, James Borthwick, Kansas City, Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel, for appellant, State Auto. & Cas. Underwriters.
   HOUSER, Commissioner.

Plaintiffs recovered a judgment against Ace Wrecking & Excavating Company and its truck driver for $18,750 damages for the death of their son who was killed in a collision involving a tractor-trailer rig operated by Ace. The judgment was not satisfied. This is an action in equity under §§ 379.195 and 379.200, RSMo 1959, V.A.M.S., against Ace, its driver and its insurance carrier to reach and apply to the satisfaction of the judgment the proceeds of the insurance policy. The court rendered judgment for plaintiffs for $18,750, plus interest, costs, and attorneys’ fees in the sum of $1,875. The insurer has appealed. The amount in controversy is the full amount of the judgment, hence this Court has jurisdiction.

The general question is whether the insurance policy covered the tractor-trailer rig Ace was operating at the time of the fatal collision. That rig was not owned by Ace. It was rented for that particular trip, and of course was not described in Ace’s policy. Two trucks, neither of which was involved in the collision, were described in the policy. One of them was a 1953 White single-chassis tandem truck with a dump-type bed 14 feet long, 7 feet wide, with sideboards 3 feet high. It weighed 18,000 pounds, and had a capacity of 12 tons. It was used regularly and frequently in Ace’s business, in hauling material taken out of wrecking jobs to Ace’s yard and making deliveries to customers, both out on the highways and in the city. When acquired in 1961 it was licensed for local use, which permitted operation in Kansas City and within a radius of 25 miles of the city. That same “local” classification was purchased for the truck in 1962, the year of the accident. This accident occurred in the course of a trip to deliver a load of lumber from Kansas City to a farm near Winston, Missouri, which is approximately 40 or 50 miles distant from the city. If the insured truck had been in operating condition it would have been used to haul this load of lumber on this trip but a day or two before the trip was made the insured truck broke down and became completely inoperable. Ace’s president then rented a truck from a business firm next door to Ace’s place of business. He wanted “just anything that would haul the load,” and did not specify whether he wanted a tractor-trailer rig or a dump truck. He did not care which. The rig that was rented consisted of a Ford tractor and a flat bed trailer 8 feet wide and 28 or 30 feet long. On it Ace placed a large load of lumber of varying lengths, widths and sizes, stacked 3 or 4 feet high and extending 3 or 4 feet back from the rear of the trailer.

The narrow, decisive question is whether this rented rig is covered under provision IV a (3) of Ace’s policy insuring temporary substitute automobiles not owned by insured “while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.”

Insurer claims that the use of the tractor-trailer rig for this trip was not in fact a substitute for the normal use of the insured dump truck; that plaintiffs failed to show that the normal use of the dump truck involved transportation of lumber in the quantities and at the distances involved in this case, i. e., loads 30 feet long carried 40 to 50 miles from Kansas City; that local licensing for a 25-mile radius shows that the dump truck was not normally used outside that area. Insurer also claims that the use was different because the rig used consisted of two units requiring connection and interworking of separate mechanisms on each unit, thus constituting a greater hazard or risk, a problem not found in the case of a single chassis such as the dump truck. Insurer points to evidence indicating that the dump truck could not have carried the load that was being carried by the tractor-trailer rig; that the latter would carry about twice as much lumber as the dump truck, and that Ace hired two tractor-trailer rigs to complete the delivery of the lumber to the farm near Winston.

The fact that the dump truck was licensed for a 25-mile radius does not necessarily demonstrate that it was not normally used occasionally outside that area when necessary to make deliveries to customers. The distance to the farm, 40 or 50 miles, is not so great as to require us to declare as a matter of law that the trip was not a normal use of the dump truck. If the insurer intended that its liability be restricted to an area of less than 50 miles it should have so provided in the policy. There is no such restriction in provision IV a (3). That the power and hauling units of the rig were separate is of no significance in considering the question whether the rig was a substitute “automobile.” Provision IV a (3) does not limit the substitute “automobile” to single-chassis vehicles. Whether the rented rig could carry more lumber than the dump truck, or carry it more efficiently or adequately, are strictly subordinate considerations. It is the use, not the capacity, of the vehicle that is important. The fact that Ace rented a second tractor-trailer unit to complete the delivery does not bear on the question whether the rig in question was a temporary substitute vehicle.

Plaintiffs’ evidence was sufficient to show that the tractor-trailer rig was a “temporary substitute automobile” temporarily used as a substitute for the insured “automobile” which was withdrawn from normal use because it was broken down. In order to establish their claim plaintiffs were not required to introduce detailed evidence showing that in the past Ace had normally carried loads of this size and makeup on trips of this or comparable number of miles. The insured dump truck was used when Ace made a delivery to customers and was used “to go out on the highway sometimes.” Ace’s driver, for the three months prior to this accident, had driven the dump truck “all over” Jackson and Clay Counties numerous times. If the dump truck had not broken down it would have been used “to deliver this lumber up into the country.” The dump truck could haul a load of 12 tons, 24,000 pounds, which was more than the weight of the lumber loaded onto the tractor-trailer rig. When loading the dump truck to capacity Ace’s employees would stack the lumber up to the cab protector and then lay it across the front, stacking it two or three feet high above the cab protector and “boom it down” by wrapping chains around it. Lumber 20 feet long could be loaded inside the bed. Lumber can extend to the rear of the last axle a distance of 15 feet and could also be stacked forward a distance of 5 feet in front of the front bumper. A 28-foot load, 12 feet high and 7 feet wide, could be put on the dump truck.

The “normal use” of the dump truck was that of delivery of lumber to customers. It could not be used for that purpose on this trip because it broke down a day or two before the trip was to be made. Another outfit was temporarily rented to accomplish the purpose which the dump truck could and would have accomplished if it had not become inoperable. The use of the rented rig was that of delivering lumber to a customer. This was a temporary substitute use within the meaning of paragraph IV a (3) of the policy. The tractor-trailer was covered.

No error appearing the judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

HENLEY and HYDE, JJ., and STORCKMAN, Alt. J., concur.

HOLMAN, P. J., not sitting.