Allmon v. Allmon
| Decision Date | 28 October 1957 |
| Docket Number | No. 7632,7632 |
| Citation | 306 S.W.2d 651 |
| Parties | T. F. ALLMON, Appellant, v. Rufus N. ALLMON, Administrator of Estate of Joe Allmon, Deceased, Respondent. |
| Court | Missouri Court of Appeals |
Esco V. Kell, West Plains, for appellant.
J. Ben Searcy, Eminence, Will H. D. Green, H. D. Green, Jr., West Plains, for respondent.
This is a proceeding for discovery of assets under sections 462.400 to 462.440 RSMo 1949, V.A.M.S.* December 30, 1955, T. F. Allmon, heir of the estate of Joe Allmon filed a statutory affidavit against Rufus N. Allmon, administrator of the estate of Joe Allmon, deceased, in the Probate Court of Oregon County, Missouri, charging that the latter had failed to inventory or purposely concealed or otherwise wrongfully withheld from said estate property belonging to Joe Allmon, to-wit:
1. $4,000, being the proceeds from the sale of real property of Joe Allmon, deceased, to Doris Weaver.
2. $8,000 in cash.
3. $1,000 in U. S. Government bonds or War Stamp.
4. Amount, rate and interest accrued on $25,000 loan to Rufus N. Allmon.
Interrogatories were filed and answered. These interrogatories related specifically to certain claimed assets belonging to the estate of Joe Allmon, deceased, to-wit: $4,000, the proceeds of a check given to Joe Allmon in 1947 by Doris Weaver, for the purchase price of real estate, and to accrued interest on four promissory notes inventoried in the estate, aggregating $25,000, payable to Joe Allmon, signed by defendant or by defendant and others.
In his answers to the interrogatories defendant denied that he had come into possession of $4,000 during the life of Joe Allmon, which he had failed to inventory in the estate. He admitted that he had had possession of a $4,000 check made by Doris Weaver payable to Joe Allmon, had endorsed his name thereon, deposited it in bank and received the proceeds thereof. In explanation as to the transaction between defendant and Joe Allmon, relating to the $4,000, the answer states: 'I did endorse my name on the check, deposited it in Bank and paid out proceeds to Joe Allmon, deceased; I returned the $4,000.00 to Joe Allmon, deceased, on June 12, 1947 by way of a $5,000.00 check which was drawn on the Bank of Mountain View of Mountain View, Missouri, made payable to Joe Allmon, the difference or additional $1,000.00 being for a note I owed him.'- The defendant's answer to the interrogatories relating to four promissory notes was that the note dated December 12, 1946, for $7,000 bore interest from maturity at the rate of one and one-half per cent per annum. A copy of said note was attached to the answer, which contained a notation or memorandum of interest payments on the back thereof and the dates of such payments showing the interest on such note had been paid is provided by the note.
The note dated December 16, 1948, for $5,000 bore interest at the rate of one and one-half per cent per annum; a copy of this note was attached and made a part of the answer which contained a notation or memorandum of interest payments on the back thereof showing dates of such interest payments and that such interest had been paid as provided by the terms of the note.
The note for $8,000 dated August 10, 1951, bore interest after maturity at the rate of two per cent per annum. A copy of the note was attached and made a part thereof which contained notation or a memorandum of payments of interest on the back of such note and the dates to such payments showing that the interest had been paid to date as provided by the terms of the note.
The note dated March 26, 1949, for $5,000 bore interest from date at the rate of one and one-half per cent per annum. A copy of the note was attached to the answer and made a part thereof which contained notations on the back or a memorandum of interest payments showing the dates thereof and that the interest had been paid as provided by the terms of the note.
The reply was a general denial.
The cause was tried in the Probate Court and judgment rendered for defendant. Plaintiff appealed to the Circuit Court of Oregon County where the cause was transferred, on change of venue, to Phelps County, and there tried with the aid of a jury. At the close of plaintiff's case the court directed a verdict for defendant, from which judgment plaintiff appealed to this court.
We deem it unnecessary to state the facts offered in evidence by plaintiff in proof of the issues involved for the reason that, under plaintiff's assignments of error and in his argument, he complains only of errors of the trial court relative to the pleadings.
In our opinion we will refer to appellant as plaintiff and respondent as defendant, the position they occupied in the Circuit Court.
The first question presented to this court for determination is whether or not defendant's answers to the interrogatories, as to the $4,000 check, constituted an affirmative plea of payment, which the defendant had the burden to prove and since defendant offered no evidence, the trial court erred in sustaining a motion for directed verdict.
In statutory proceedings to discover alleged assets of a decedent's estate the issues are framed by the interrogatories and the answers thereto. In re Lipic's Estate, 362 Mo. 623, 243 S.W.2d 100, 104(1); Sections 462.400 to 462.440 RSMo 1949, V.A.M.S.; Section 131, Laws of Missouri 1955, p. 431; In re Petersen's Estate, Mo.Sup., 295 S.W.2d 144, 145; In re Estes' Estate, Mo.Sup., 166 S.W.2d 1061, 1062(1, 2); Maynard v. McClellan, 236 Mo.App. 352, 156 S.W.2d 770; Dusenbery's Estate v. Stamm, Mo.App., 255 S.W.2d 57; Newell v. Edom, Mo.App., 242 S.W. 701; Wilson's Estate v. Wilson, Mo.App., 164 S.W.2d 73; In re Oberman's Estate, Mo.App., 281 S.W.2d 549. See cases cited in 13 Mo.Dig., k 85(5), p. 228.
The proceedings to discover assets are not confined to issues tendered in initial affidavit, but may be expanded by detailed, written interrogatories and answers thereto. White v. Fitzgerald, Mo.App., 263 S.W.2d 454.
The issue as to the $4,000 raises the question of whether or not the defendant returned such money to Joe Allmon in his lifetime, to-wit, June 12, 1947, by a check given by defendant, payable to Joe Allmon in the sum of $5,000 drawn on the Bank of Mountain View.
Defendant's answer to interrogatories concerning the $4,000 in issue denied that he had come into possession of $4,000 during the life of Joe Allmon, which he had not inventoried in the estate, but, admitted that he had had possession of the check for $4,000, made by Doris Weaver, payable to Joe Allmon; that he had endorsed his name on such check, deposited it in the bank and paid out proceeds to Joe Allmon. He stated that he returned the $4,000 to Joe Allmon June 12, 1947, by way of a $5,000 check.
Plaintiff's reply was a general denial. Therefore, the question or issue raised by the pleadings was whether or not defendant did repay or return the $4,000 as pleaded in the answer.
In Limbaugh's Missouri Practice with Forms, Vol. I, p. 809, Sec. 645, the law is stated: '* * * Such interrogatories and answers are not to be considered as evidence except insofar as they contain admissions against the interests of the parties.' Starks v. Lincoln, 316 Mo. 483, 291 S.W. 132; Carmody v. Carmody, 266 Mo. 556, 181 S.W....
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