McCULLEN, Judge.
This cause originated in the Probate Court of the City of St. Louis where on September 13, 1946, Constantinos Polizoe (since deceased) filed a claim against his deceased wife's estate for the sum of $5,353.57, plus interest based upon the alleged payment by him of certain notes to the Home Owners Loan Corporation to pay off a loan hereinafter referred to as H. O. L. C. loan. After a hearing the Probate Court on October 26, 1948, denied the claim, whereupon the cause was appealed to the Circuit Court of the City of St. Louis. There was a hearing before the Circuit Court on March 25, 1949, and thereafter on April 25, 1949, the Circuit Court entered a finding and judgment denying the claim, after which an appeal was duly taken to this court by Polizoe's executor as substituted claimant.
It appears from the evidence that on June 24, 1926, Demetros Sclavos (also referred to as James Sclavos) and Stamatia Sclavos, then his wife, purchased a two family flat known as 4316-4316a Forest Park Boulevard, in the City of St. Louis, which was at that time subject to a deed of trust for $6,500. The property was held by Sclavos and his wife as an estate by the entirety. Sclavos and his wife occupied the upper flat as their home. On November 15, 1929, Sclavos died, leaving surviving him his wife, said Stamatia, and three sons named Angelo, (also referred to as Angelos and Evangelos) Spiros (also known as Sam) and Thomas. On November 10, 1930, the said Stamatia, widow of Demetros Sclavos, married Constantinos Polizoe (also known as Gus Polizoe). It is agreed by the parties that the deed of trust for $6,500 previously on the property had been reduced to $5,000 but when it was reduced or by whose payments does not appear.
When the holder of the above mentioned deed of trust was preparing to foreclose on it said Stamatia and her then husband, Constantinos (Gus) Polizoe, made a loan at a bank for $5,000 to pay off the balance of the old deed of trust amounting to $5,000, and on April 29, 1933, they executed a new deed of trust on the property for said sum which was to run for a period of eighteen months, with three interest notes for $150 each, due 6, 12, and 18 months after date. With the proceeds of said loan the old deed of trust was paid and it was released of record July 10, 1933. Thereafter, the deed of trust made at the bank, dated April 29, 1933, was about to be foreclosed when Polizoe and Stamatia, his wife, obtained a loan of $5,000 from the Home Owners Loan Corporation for which amount they executed a deed of trust dated December 20, 1934, which was to be paid back at the rate of $42.33 per month. However, there was evidence that two lump sum payments were made on said H. O. L. C. loan in the month of August 1944, one for $1,000 and the other for $1,185. It is contended that Polizoe made these payments but it is not clear who actually paid them.
The evidence shows that the deed of trust dated April 29, 1933, was released of record January 12, 1935. The last mentioned loan, the one obtained from the H. O. L. C. on December 20, 1934, is the subject of the controversy herein, it being contended by claimant that Polizoe paid all of said loan amounting to $5,353.57.
The evidence shows that Stamatia Polizoe died October 6, 1944, and Constantinos (Gus) Polizoe was appointed administrator of her estate and that thereafter he filed the claim against her estate for $5,353.57 contending that he had paid that amount to pay off the H. O. L. C. loan. Upon the filing of the claim in the Probate Court by Polizoe the court appointed Robert F. Schlafly, respondent herein, as administrator ad litem of the Estate of Stamatia Polizoe. Thereafter Constantinos (Gus) Polizoe died and on October 31, 1947, Robert L. Spelbrink, appellant herein, was appointed executor under the will of Polizoe and he was substituted as claimant and is prosecuting this claim as such executor.
At the trial in the Circuit Court claimant in support of his claim introduced in evidence exhibits numbered 1 to 13, inclusive. These various exhibits consisted of a warranty deed dated 6/24/26 from Sam Kessler to Demetros Sclavos and Stamatia Sclavos covering property at 4316 Forest Park Boulevard, St. Louis; a deed of trust for $6,500 on said property dated 4/29/24; a death certificate showing the death of James Sclavos on 11/15/29 at St. Louis; a marriage license dated 11/10/30 showing the marriage of Constantinos G. Polizoe and Stamatia Sclavos; a deed of trust dated 4/29/33 executed by Stamatia Sclavos, who had become by marriage Stamatia Polizoe, and Constantinos Polizoe to Clarence Mundwiller for $5,000; a release dated 1/12/35 of the principal note of $5,000 and three interest notes of $150 each; a deed of trust dated 12/20/34 from Stamatia Polizoe and Constantinos Polizoe to Home Owners Loan Corporation for $5,353.57; a release dated 2/8/45 of Home Owners Loan Corporation deed of trust; 65 individual receipts for $42.31 each, some of which were for amounts a few cents different. They are all referred to in the H. O. L. C. deed of trust; 32 U.S. Postal Money Order receipts for varying amounts; Exhibit No. 13 was a letter dated 7/6/48 from H. O. L. C. to Robert L. Spelbrink, attorney, answering a letter from Spelbrink of May 27th, requesting information. The H. O. L. C. letter stated that "On August 9, 1944 a lump sum payment of $1,000 was made, and on August 29, 1944 a payment of $1185.00 was credited to the account." There was nothing in said letter to show who made such payments.
After introducing the above named exhibits claimant called as a witness Nick Katsaras, who testified that one time when one of the sons of Mrs. Polizoe was sick she said to the witness that if she didn't have her husband to pay the notes every month she "would be up against it and lose the house." Katsaras further testified that Mrs. Polizoe told him that she was "going to make everything to Gus, because Gus paying everything."
Later in the trial Nick Katsaras, being recalled as a witness in rebuttal, testified that in a conversation he had with Mrs. Polizoe some time in August or September 1944, speaking of lump sum payments on the H. O. L. C. loan, she said: "I am sending a thousand dollars. I am going to send some more about eleven hundred dollars, to pay, and we are through paying the house." The witness was asked if Mrs. Polizoe said who paid these lump sums and answered: "Mr. Polizoe."
Defendant introduced in evidence a petition filed in the Probate Court in the Estate of Constantinos Polizoe on behalf of Evangelos Sclavos asking said court to order delivered to him bonds in his name found in the safe deposit box of Polizoe. Defendant also introduced in evidence a petition filed in the Probate Court in the Estate of Constantinos Polizoe by Thomas Sclavos asking said court to order delivered to him bonds and insurance policies in his name found in the safe deposit box of Polizoe. Each of the said petitions filed in the Probate Court alleged that the bonds mentioned therein were the property of the petitioners Evangelos Sclavos and Thomas Sclavos respectively, and had been left by them with their mother for safe keeping and upon the death of their mother had been taken over by Constantinos Polizoe, their stepfather, and were then in the possession of Polizoe's executor.
Defendant also read in evidence a deposition of Thomas Sclavos, son of Stamatia (Sclavos) Polizoe in which said Thomas testified that his mother had perhaps $65 a month income from her property, the flat in question, made up of $35 from the downstairs and $30 from the upstairs; that he, the witness, gave his mother $5 per week and that he bought the food in the home; that Gus Polizoe gave his wife $1 per day for board and lodging during the time they were married. The witness further testified that Gus Polizoe never did give him any money to pay on the H. O. L. C. loan; that he, the witness, made all the payments on said loan during three or four years with money that he received from his mother; that in February or March 1944, he gave his mother $600 which he had saved and that she had $900 of her own money which she put with the money the witness gave her and sent the total of $1,500 to the Home Owners Loan Corporation; that some of the payments he made from time to time for his mother were made in cash which he had insured and that many of the payments were paid by U.S. Postal Money Orders.
Mr. Glenn Haley, Assistant Cashier of the Plaza Bank, testified on behalf of defendant that Stamatia Polizoe rented a safe deposit box at that bank and that upon her death and the appointment of her husband as administrator of her estate her box was opened and in it were found U.S. Government Bonds in favor of two of her three sons. The evidence shows that there were in said box 11 bonds, some of which were inscribed "Evangelo D. Sclavos POD Mrs. Stamatia Polizoe," some were inscribed "Evangelos D. Sclavos POD Thomas D. Sclavos"; one was inscribed "Evangelos D. Sclavos POD Athanasois D. Sclavos." Two of said bonds were for $100 each and the rest were all for $25 each. There were also in the box 25 U.S. Government Bonds of various denominations from $25 up to $100, some of which were payable to "Thomas Sclavos or Mrs. Stamatia Polizoe" and others payable to "Thomas Sclavos POD Mrs. Stamatia Polizoe." There was one bond payable to "Thomas D. Sclavos POD Evangelos D. Sclavos" and another payable to "Thomas Sclavos or Angelos Sclavos." Mr. Haley further testified that said deposit box also contained an insurance policy issued by the John Hancock Life Insurance Company on the life of Stamatia's son Thomas Sclavos and three policies on said Thomas' life issued by the Prudential Life Insurance Company.
The testimony shows that said box also contained, according to the inventory made at the time, "cancelled notes" and "paid loan papers."
The testimony further shows that Constantinos (Gus) Polizoe also rented a safe deposit box at the Plaza Bank and at the time of his death his box was opened and an inventory taken; that the same U.S. Government Bonds and the same insurance policies that had been in Stamatia's safe deposit box were found in the box of Polizoe.
Joseph F. Wiesner, Superintendent of the Chouteau Station U.S. Post Office, testified that from 1942 to 1946 he was Superintendent of Richmond Heights Post Office at 7112 Oakland Avenue across from St. Mary's Hospital; that he was personally acquainted with Mr. Polizoe and his stepson Thomas Sclavos; that he was acquainted with the handwriting of Thomas Sclavos; that Mr. Constantinos Polizoe could not write; that of the 26 applications for postal money orders the witness wrote 12 of them at the request of Mr. Constantinos Polizoe, signing them "S. C. Polizoe" meaning Stamatia and Constantinos Polizoe, and that 11 of them are in the handwriting of Thomas Sclavos. The witness was unable to identify the handwriting on the other three applications.
Thomas E. Powers testified as a witness for defendant that he was Superintendent of Money Orders of St. Louis Post Office and in charge of applications filed by various persons for money orders; that defendant's counsel had handed him a list of money order receipts (which it is not disputed was the list of receipts furnished to defendant's attorney by claimant's attorney) and that defendant's attorney had requested him to produce in court the applications for such money orders; that he could produce only 26 such applications for money orders because the applications are preserved for only three years.
Claimant-appellant contends that Mr. Polizoe paid off the loans on the property of Mrs. Polizoe out of his own individual funds, and that he was, therefore, entitled to charge the same against his wife's estate. To support this contention claimant relies in part on the 65 H. O. L. C. receipts which were introduced as exhibits. Defendant unsuccessfully objected to the introduction of said receipts on the ground that there was nothing on them to show who made such payments, and on the further ground that the total of said receipts showed an aggregate amount of only $2,500, whereas the amount of Polizoe's claim was $5,353.57.
Claimant also relies in part on the 32 U.S. Postal Money Order Receipts for monthly payments, 29 of which were for $41.35 each, 2 for $42.32 each and one for $67.46, aggregating $1,351.25. There was nothing on any of said postal money order receipts to show who paid them nor was there any direct, positive testimony to show that Polizoe made all the payments represented by said receipts. Claimant contends, however, that the evidence shows that Mrs. Polizoe was not in a position to refinance the mortgages in question and that it was only through the efforts and financial stability of her husband that the first bank loan was made to refinance and save her property and then the loan of the H. O. L. C. which was subsequently paid off; that each of the two latter loans were an obligation of Stamatia's husband along with her to repay the same, and that since she did not have sufficient funds of her own to discharge such obligations the money would have to come through her husband.
A careful consideration of all the evidence leads us to the conclusion that claimant failed to establish that he paid off the H. O. L. C. loan as he contended he did. Much of the evidence on which claimant relies to show that he made payments on said loan, such as the H. O. L. C. receipts and the U.S. Postal Money Order Receipts, do not support his contention, because there is nothing on those documents to show who made such payments. It is true claimant strongly argues and contends that Polizoe made such payments but contentions and arguments do not supply the place of evidence. The only clear evidence that Polizoe paid any part of the H. O. L. C. mortgage is that he bought twelve U.S. Postal Money Orders of $42.33 each, totaling $507.96, and the testimony of Nick Katsaras that Mrs. Polizoe once told him that she was "sending a thousand dollars" and "I am going to send some more, about eleven hundred dollars, to pay, and we are through paying the house" and that Gus Polizoe paid those amounts. Against said testimony on behalf of claimant is the positive, unequivocal testimony of Thomas Sclavos, Stamatia's son by her former marriage, that he made all the monthly payments on the loan during three or four years with money given to him by his mother; that sometimes such payments were made by cash through the mail and insured, and at other times by U.S. Postal Money Orders, and that he and his mother together sent $1,500 at one time as payment on the loan.
The burden was on claimant to prove not only that Polizoe actually paid the amount of $5,353.57 to pay off and discharge the H. O. L. C. loan on his wife's property, but he was required to go further and prove by clear and positive evidence that such payment was not intended to be a gift by Polizoe to his wife. We are of the opinion that claimant failed to sustain either part of this burden. On the contrary, we think that the greater weight of the evidence as to who actually made most of the payments on the H. O. L. C. loan shows that they were made by Stamatia Polizoe directly and through her son Thomas.
The evidence shows that Mrs. Polizoe was a thrifty, hard working woman who looked after her personal and property matters with care. She was the one who furnished the home for Polizoe and her sons by her former marriage. Thomas Sclavos testified that his mother during her marriage to Mr. Polizoe gave Polizoe $800 with which to buy a lunch stand which they operated together; that his mother worked day and night in said stand but received no salary from her husband for her work. Mr. Wiesner, the U.S. Postal Supervisor, also testified that Mrs. Polizoe was always working in the restaurant when her son Thomas was not there.
Even if it be conceded that Polizoe did make some payments on said loan, such payments as he did make, having been made by a husband on his wife's property, must under the law, be presumed to have been gifts to the wife by the husband in the absence of "clear and positive evidence" to the contrary.
In Woerheide et al. v. Kelley et al., Mo. Sup., 243 S.W. 158, our Supreme Court held that payments made by a husband for property conveyed to his wife, both the original payments and payments thereafter to discharge a trust deed against the wife's property, were presumed to have been intended by the husband as an advancement or gift to the wife and that no trust resulted in favor of the husband. In that case the court said: "But aside from this, even though Kelley paid for the property out of his own funds, the fact that he had his wife named as grantee raises the presumption that he intended it as a gift to the wife, and this presumption must be overcome by clear and positive evidence, leaving no doubt in the mind of the chancellor." (Emphasis ours.) Woerheide et al. v. Kelley et al., Mo.Sup., 243 S.W. 158, 163.
The rule declared and applied in the Woerheide case, supra, was also applied in Gillespie v. Gillespie, Mo.Sup., 289 S.W. 579. The reasons underlying this strong rule of presumption in favor of a wife as against a husband are stated at length and many authorities are cited upholding the rule in Pursley v. Pursley, Mo.App., 215 S.W.2d 302. See also Viers v. Viers, 175 Mo. 444, 75 S.W. 395; Bender v. Bender, 281 Mo. 473, 220 S.W. 929; Wavrin v. Wavrin, Mo.Sup., 220 S.W. 931.
The rule as to the presumption mentioned in the above cited Missouri cases is the general rule applied throughout the country. In Zanzonico v. Zanzonico, 124 N.J.Eq. 477, 2 A.2d 597, it was held that in the absence of proof indicating a contrary intention, expenditures made by a husband on property owned by his wife alone or owned by them together as tenants by the entirety are ordinarily presumed to be gifts for which the husband has no right to reimbursement.
To the same effect are the cases of Aycock v. Bottoms, 201 Ark. 104, 144 S.W.2d 43; Hoef v. Hoef, 323 Ill. 170, 153 N.E. 658; Fiscus v. Young, 243 Ala. 39, 8 So.2d 514.
Claimant in support of his contentions herein relies mainly on Vazis v. Zimmer, Mo.Sup., 269 S.W. 909. Said case was an action commenced in the Probate Court of the City of St. Louis by Frank Vazis who was the son and heir of Agnes Zimmer. Vazis charged Anton Zimmer with concealing and withholding moneys, evidences of indebtedness and other personal property belonging to the Estate of Agnes Zimmer, deceased. The Probate Court found Zimmer guilty of wrongfully withholding certain principal notes as well as other property belonging to the Estate of Agnes Zimmer, deceased. The defendant unsuccessfully appealed to the Circuit Court of St. Louis, after which he appealed to the Supreme Court. The evidence showed that Anton Zimmer while a resident of Illinois received the proceeds of the sale of land held by himself and his wife as tenants in common amounting to $11,000, and that he received in Illinois personal property in the amount of $2,761.45 which also belonged to himself and wife as tenants in common. Defendant in that case claimed credit for the sum of $950 and $2,650 which he contended he had paid out of his individual funds to release two mortgages that were a lien on said property. Our Supreme Court in remanding the cause for a new trial said: "In retrying the case the court or jury should ascertain the amount of money which came into the hands of Anton Zimmer, in February, 1904, while in the state of Illinois, which belonged to himself and wife as tenants in common. If he satisfied, out of his own funds, any deeds of trust or mortgages on the lands which he and his wife sold to Rull, he is entitled to charge against his wife one-half of the amount so paid." (Emphasis ours.) Vazis v. Zimmer, Mo.Sup., 209 S.W. 909, 912.
It is clear that the Vazis case, supra, is not applicable to the facts in the case at bar. In the Vazis case the husband and wife owned the property in question as tenants in common, whereas in the case at bar the wife Stamatia alone owned the property involved herein.
Although Polizoe contended that he paid off a mortgage on his wife's property, there is no "clear and positive evidence" to show that he had any understanding or agreement with his wife that she would reimburse him for such payments. Hence, claimant's evidence was insufficient to overcome the presumption arising under the law that whatever payments the husband made were intended as gifts to the wife.
Our investigation of the whole record leads us to the conclusion that the trial court reached the right result. The judgment of that court is, therefore, affirmed.
ANDERSON, P. J., and HUGHES, J., concur.