Alexander v. Wyatt's Estate

• Decision Date: 23 May 1953
• Docket Number: No. 7141,7141
• Parties: ALEXANDER v. WYATT'S ESTATE et al.
• Court: Missouri Court of Appeals

Page 126

259 S.W.2d 126

ALEXANDER v. WYATT'S ESTATE et al.

No. 7141.

Springfield Court of Appeals, Missouri.

May 23, 1953.

E. C. Hamlin, of Springfield, for appellant.

Kirby W. Patterson, of Springfield, for respondent.

BLAIR, Judge.

Oliver Wyatt, herein referred to as deceased, lived in Springfield, Missouri. His wife had predeceased him about a year. Sometime early in the year, and not long after the death of his wife, deceased suffered a broken hip and thereafter became bedfast most of the time. Deceased died January 2, 1949. Soon after deceased suffered a broken hip, Bernie Alexander, herein referred to as plaintiff, entered the employment of deceased as a practical nurse, at $30 per week, took care of deceased, did the housework and performed such other duties as became necessary. From time to time, relatives of deceased came to see him. At most of the times, plaintiff was the only person in the house of the deceased.

Becoming dissatisfied with the $30 per week, previously agreed upon and paid, plaintiff claimed and proved that on November 27, 1948, deceased gave him a check on the Farmers and Merchants Bank of Springfield for $2,500, by its terms and on the face thereof, payable to plaintiff on the death or recovery of deceased. On that date deceased did not have that much money in his checking account; but doubtless had much more than $2,500 in his checking account and certain safety boxes in his name. Both the bank and the probate court of Greene County refused to pay the $2,500 check, and plaintiff appealed to the Circuit Court of Greene County, which reversed the probate court. At that time plaintiff claimed his check was a legal demand against the estate of deceased. His claim remained in that shape for over a year. He eventually concluded that his claim was an equitable demand against the estate of deceased, and not a legal demand, as he previously had contended, and filed this suit on that theory. In the meantime, the money in deceased's checking account, and his other property, were turned over to J. W. Chilton, Jr., administrator of deceased's estate. The judgment of the Circuit Court of Greene County in the case was reversed by this Court, as appears in 244 S.W.2d 121, 122. In that case we said:

'From what has been said, we do not wish to be understood as disagreeing with the learned trial court in holding that this petition is an action at law and not one in equity. While it is entitled 'Action in Equity' and asks for specific performance by requiring the administrator to pay the amount due, it shows on its face that it is only a demand against the estate for a sum certain, enforcible, if at all, by filing a demand in the probate court or in an action at law and that the sum became due at the death of the obligor. Sections 464.030 and 464.070, Mo.R.S. 1949.'

A careful reading of our opinion in 244 S.W.2d 121, with the statutes above quoted, shows that we did not then rule that plaintiff had no action on his check in equity. We simply held that the statute of limitations had cut off any action he previously had on said check as a law claim against the estate of deceased. We did not say we disagreed with the trial court in that case in holding that plaintiff had an action at law and not one in equity.

After the judgment of the Circuit Court of Greene County was reversed and the cause remanded to that court, a change of venue was granted to the Circuit Court of Jasper County and the case was tried by Judge Bailey of that court at Carthage, Missouri. Judge Bailey held that the previous judgment became res adjudicata, that plaintiff's claim was barred by the statute of limitations and that his demand against the estate of deceased was not an equitable demand, but a law demand. Judge Bailey did not decide the case against plaintiff, because of the mental condition of deceased at the time such check was signed by him. While there was some evidence upon which the trier of the facts might have found that deceased was mentally incompetent at that time, we will not regard such evidence in deciding whether or not plaintiff's claim was equitable or legal in its nature. The question of the mental condition of deceased is not now in the case for our decision.

In the former opinion we held that the claim was a legal claim and was barred because plaintiff did not allege in his petition or prove that there had been a publication of notice of the appointment of an administrator and that a legal claim could not be proven against the estate of deceased until such appointment was publicized.

Evidently plaintiff decided that his claim against the estate was an equitable claim and not a legal demand, and, as above stated, plaintiff filed a petition and claimed that his check was an equitable...