Atherton v. Atherton

• Decision Date: 08 May 1972
• Docket Number: No. 25651,25651
• Citation: 480 S.W.2d 513
• Parties: Mary Lou ATHERTON and Alfred Atherton, Plaintiffs-Appellants, v. Harold ATHERTON, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 513

480 S.W.2d 513

Mary Lou ATHERTON and Alfred Atherton, Plaintiffs-Appellants, v. Harold ATHERTON, Defendant-Respondent.

No. 25651.

Missouri Court of Appeals, Kansas City District.

May 8, 1972.

James J. Wheeler, Keytesville, for plaintiffs-appellants.

John H. Franken, Robert A. Bryant, Carrollton, for defendant-respondent.

PER CURIAM.

This case originated in the Probate Court of Carroll County, Missouri, wherein the appellants, brother and sister, filed an affidavit to discover assets under Sections 473.340, 473.350, V.A.M.S., in the estate of their deceased father, Lester Atherton. The respondent is also a brother of the plaintiffs and thus all parties are heirs of Lester Atherton.

In the appellants' affidavit to discover assets, they charge in the language of the statute that their brother Harold had concealed, embezzled or otherwise unlawfully withheld personal property of the defendant which should properly be a part of the estate, namely, money, described as the sum of $5000.00 received by Harold from the deceased a short time before his death, and also approximately $280.00 received from the deceased prior to his death.

The respondent was duly served with citation, and in response to the charges in the affidavit, filed his general denial.

At the initial hearing before the probate court, the appellants waived their right to oral examination of the respondent and were granted permission to file written interrogatories directed to respondent, which interrogatories were filed and answered.

In his answers to these interrogatories, the respondent admitted having received $500.00 from the decedent on December 27, 1967. As to this transaction and the $280.00 also received from the decedent, the respondent stated in his answers to interrogatories:

'4. Answer to Interrogatory No. 4:

Pursuant to an agreement made with Lester Atherton during his lifetime, the $5000.00 was paid to my wife and me for the purchase of a larger home and for furniture to install in said house, with the agreement that we would provide a room in said home for the use and occupancy of the said Lester Atherton, my father, for such time during the remainder of his lifetime, as he desired to maintain our residence as his home. Said sum was paid to my wife and me by a check drawn at the special instance, direction and request of the said Lester Atherton on his account in the Carroll County Trust Company, Carrollton, Missouri by L. H. Atherton acting as Attorney in Fact for the said Lester Atherton on December 27, 1967.

The foregoing transaction was initiated by Lester Atherton and completed at the instance and with the approval of plaintiff Mary Lou Atherton and other members of the family.

As to the approximately $280.00 allegedly received from the deceased, Lester Atherton, prior to his death, I am not familiar with such amount except that more than 10 years prior to his death, I had borrowed small sums of money from my father, Lester Atherton. On several occasions, I had inquired of my father the amount of money I had borrowed from him, as I wanted to repay him; but on each occasion, he stated that if he ever wanted me to repay him, he would tell me what I owed him and that he wanted it. He did not inform me at anytime as to the total amount that I had borrowed from him, and he always refused to accept repayment thereof when I had the money available and offered to pay him.'

The issues thus raised were tried before a jury in the probate court of Carroll County and that jury returned a verdict in favor of Harold Atherton, which was entered of record and the costs assessed against Mary Lou Atherton and Alfred Atherton.

While no transcript of the testimony in this hearing is in the record before us, it appears that Harold Atherton testified since the petitioners there (appellants here) filed a written general objection to his testimony upon the basis that it violated the 'Dead Man Statute' and because 'the other party to the transaction is deceased'. This objection was overruled.

Mary Lou and Alfred Atherton appealed to the circuit court of Carroll County and after a change of venue and disqualification of judge was granted at their request, the cause was transferred to Ray County and came on for hearing before a special judge, without a jury. During the trial, Harold Atherton was permitted to testify in his own behalf over the renewed objection of plaintiffs, that to permit him to do so violated the provisions of Section 491.010, R.S.Mo., V.A.M.S., the so-called 'Dead Man's Statute'.

At the conclusion of all the evidence, the trial court took the matter under advisement and on July 13, 1970, the court entered judgment in which it was found that the testimony of Harold Atherton should not have been admitted under the provisions of Section 491.010 R.S.Mo., V.A.M.S., and his testimony was stricken from the record. The court below thereupon found all issues in favor of the defendant, Harold Atherton, and against the plaintiffs, Alfred Atherton and Mary Lou Atherton. The appeal to this court followed in due course.

The appellants raise only one point in their brief, which is general in terms and thus is not in compliance with the rules. It appears, however, that their positions is that the defendant failed to establish either a contractual relationship between him and his father, Lester Atherton, or a gift from his father to him. On the other hand, the respondent asserts that he came into possession of the $5000.00 under a valid agreement with his father and that the other sum stated in the discovery affidavit to be $280.00 was either a debt which has been fully paid or a gift. In fact, the record before us reveals that there was no substantial factual dispute between the parties, except as to one matter which will be hereinafter discussed.

The scope of our review of this court-tried case is defined in Section 510.310(4), R.S.Mo., V.A.M.S., and Rule 73.01(d), Rules of Civil Procedure, V.A.M.R. We review both the law and the evidence as in suits of an equitable nature; the judgment is not to be set aside unless clearly erroneous and due regard is to be given to the opportunity of the trial court to judge the credibility of the witnesses. Schmitt v. Pierce, Mo. en banc, 344 S.W.2d 120, 122; Peerless Supply Co. v. Industrial Plumbing and Heating Co., Mo., 460 S.W.2d 651, 657.

None of the parties below requested findings of fact or conclusions of law before final submission, nor did the trial court indicate the grounds for his decision. Under such circumstances, we must assume that all fact issues were found in accordance with the result reached. Rule 73.01(b), Rules of Civil Procedure. Also, as was said in McIntosh v. White, App., 447 S.W.2d 75, l.c. 78:

'* * * We will take the case as it is presented, but it is a court-tried case decided without findings of fact and without any indication of the theory upon which the trial court acted, and therefore we must affirm the judgment if it is correct on any theory supported by the evidence. Edgar v. Fitzpatrick, Mo., 377 S.W.2d 314, 318(12); Lossing v. Shull, 351 Mo. 342, 351, 173 S.W.2d 1, 5(1); McCrory v. Munroe, Mo.App., 336 S.W.2d 118, 121(1).'

In reviewing the evidence, we shall refer to the appellants as plaintiffs or as Mary Lou and Alfred, and to the respondent as defendant or Harold.

Lester Atherton, a widower, lived alone on a small farm outside the town of Carrollton, Missouri in an 'unmodern' house. He was the father of seven children at the time of the events here involved. They were

Mrs. Maymie Atherton Zellers, a daughter, who lived in Kansas City, Missouri.

Mary Lou Atherton, a daughter, who lived in Kansas City, Missouri and is a plaintiff in this action.

Alfred Atherton, a son, who lived in Wakenda, Missouri and is a plaintiff in this action.

Harold Atherton, a son, who lived in Carrollton, Missouri and is the defendant in this action.

Elsie Hodson, a daughter, who lived in Carrollton, Missouri.

Gerald Atherton, a son, who lived in Carrollton, Missouri.

Louie (Bill) Atherton, a son, who lived on a rural place about 20 miles from his father and who died about a week before the trial below.

Lester Atherton was 78 years old, suffered from palsy, asthma, respiratory problems and hardening of the arteries. For a number of years he had expressed an interest in moving into Carrollton from the country. Although there was substantial testimony that he was in fair physical condition for a man his age and had his mental faculties, the family and his doctor were all of the opinion that he should not live alone on the farm. However, none of the children had the ability to house or care for him in their homes or were unwilling to do so.

The defendant Harold and his wife Helen lived with a daughter in a two-bedroom trailer which they owned on ground which they...