Barrett v. Flynn, 51145

• Decision Date: 24 February 1987
• Docket Number: No. 51145,51145
• Citation: 728 S.W.2d 288
• Parties: Lillian BARRETT, et al., Appellants, v. Carmen FLYNN, Defendant.
• Court: Missouri Court of Appeals

Page 288

728 S.W.2d 288

Lillian BARRETT, et al., Appellants, v. Carmen FLYNN, Defendant.

No. 51145.

Missouri Court of Appeals,

Eastern District,

Division Three.

Feb. 24, 1987.

Motion for Rehearing and/or Transfer Denied March 25, 1987.

Application to Transfer Denied May 19, 1987.

Allan G. Kimbrell, St. Louis, for appellants.

James J. Knappenberger, Clayton, for defendant.

KAROHL, Judge.

This is a § 473.340 RSMo 1978 discovery of assets proceeding brought in the Probate Estate of Peter Demme, Jr., (Demme, Jr.) to secure for the estate bank accounts and certificates of deposit which the personal representatives, Lillian Barrett and Catherine Digrispino, alleged were, or should have been, assets of the estate. Demme, Jr. died intestate at age 65 in January, 1979. Lillian Barrett and Catherine Digrispino are sisters of Demme, Jr. They allege Carmen Flynn, also a sister, has control and custody of the assets. Defendant is a surviving joint tenant on a savings account and certificates of deposits at Savings and Loan Associations. The total sum involved in the claim was $156,285.69 when Demme, Jr. died. The joint accounts of Demme, Jr. and Carmen Flynn began in April, 1973. Personal representatives appeal verdict and judgment which rejected their claims to all of the joint accounts.

Demme, Jr. was survived by siblings including the personal representatives, defendant Carmen Flynn, Vincent "Jim" Demme, Rose Frazetta, Angela Bella and Dorothy Vacante. One brother, Joseph Demme, died in 1975. Demme, Sr. died in 1954. Thereafter, Lillian Demme, the mother of Demme, Jr. and his siblings, resided with defendant Carmen Flynn and Demme, Jr. Carmen married in 1966 and Demme, Jr. was forced by her, over his tearful objection, to live elsewhere. When Lillian Demme died defendant Carmen Flynn acquired substantially all of Lillian Demme's assets by reason of Lillian's will and joint tenancy. Vincent "Jim" Demme contested the will. The contest failed.

A proceeding to discover assets is a statutory proceeding. The nature and requirements for a petition are set forth in § 473.340 RSMo 1978. "The petition shall describe the property, if known, shall allege the nature of the interest of the petitioner and that title or possession of the property, or both, are being adversely withheld or claimed." (our emphasis) The proceeding is governed by the Missouri Rules of Civil Procedure. Any party may have a jury trial on request. The purpose of the proceeding is to determine the persons who have an interest in the property described, together with the nature and extent of any such interest.

Nearly all of the errors on appeal may be traced to serious defects in the petition which was in the following form:

PETITION

Come now plaintiffs and for their cause of action state as follows:

1. Peter Demme, Jr., died intestate on January 20, 1979. Said decedent was survived by seven brothers and sisters.

2. Plaintiffs are the duly appointed joint executrixes of the estate of the said decedent.

3. Upon information and belief, the following assets now in control and custody of the defendant, are or should have been assets of the estate of said decedent:

a. Bank accounts, or the proceeds therefrom, which the decedent had an interest in during his lifetime.

b. Proceeds from a union death benefit.

c. Automobiles which the decedent owned an interest in during his lifetime.

d. Equitable interest in real estate.

e. Securities and/or bonds which the decedent owned an interest in during his lifetime.

f. Other unknown assets and property.

4. Upon information and belief, defendant is adversely holding and claiming a right to all of the above listed assets.

WHEREFORE, plaintiffs pray that this Court order and determine that all of said assets belong to the estate of said decedent and that defendant be required to deliver said assets to the estate and/or that a money judgment be entered against the defendant in the amount of the amount of the value of said assets with interest thereon; plaintiffs also pray for such additional reliefs as the Court may deem just in the premises. ¹

The obvious defects in the petition are that the personal representatives did not allege the nature of the interest they claim or the adverse title or possession of defendant Carmen Flynn or how she acquired title or possession. The petition does not inform Carmen Flynn or the court that the bank accounts mentioned in paragraph 3(a) are joint accounts and that the joint tenancy was the product of undue influence. The personal representatives attempted to try the issue of undue influence of defendant Carmen Flynn over Demme, Jr. This issue was not necessarily the basis of the claim under the petition. The issue was not tried by consent because at every stage of the proceedings timely objections based on relevancy were made on behalf of defendant. Defendant also objected to the verdict directing instruction submitting that issue. There was no debate that Demme, Jr. and defendant Carmen Flynn became joint tenants on savings and loan accounts approximately six years before his death. If the pleading had alleged Carmen Flynn held title as a surviving joint tenant and this title was the product of fraud or undue influence then § 369.174 RSMo 1978 would have been implicated. This statute provides, "[t]he opening or maintenance of the account in such form, in the absence of fraud or undue influence, shall be conclusive evidence in any action or proceeding to which either the association or any survivor [or the personal representative of a deceased owner] is a party of the intention of all the parties to the account to vest title to the account and the additions and earnings thereto in the survivor." In view of the mandate of § 369.174 and the pleading requirements of § 473.340 the personal representatives were obligated to plead undue influence if that was their theory. If pleaded, a successful plaintiff must prove fraud or undue influence by clear, cogent and convincing evidence. Daniels v. Champion, 592 S.W.2d 869 (Mo.App.1979).

We recognize the rule of law that strict rules of pleadings are ordinarily not required in a probate proceeding. Estate of McCormack v. McCormack, 676 S.W.2d 928, 930 (Mo.App.1984). The caveat of this rule is that the pleadings must give reasonable notice of the nature and extent of the claim. The present petition is inadequate under this standard. It is impossible from the petition to determine whether the personal representatives contend that the assets withheld by defendant were in the name of Demme, Jr. or had been held in joint names which resulted from defendant's acts of fraud or undue influence. Nor is it possible from the petition to determine whether issues of title or possession, or both, were to be tried.

In addition to the pleading problem there is the question of plaintiffs' burden of proof on the issue of undue influence which was neither pleaded nor tried by consent. Plaintiffs' brief assumes that the evidence met the required burden of proof of undue influence and does not deal with the issue. The claims of error which relate to rulings excluding evidence on matters other than acts of undue influence by defendant and on rulings relating to closing argument are of no consequence if plaintiffs failed to make a submissible case on the "assumed" issue of undue influence.

Undisputed evidence including the testimony of defendant Carmen Flynn, supports a conclusion that she was managing Demme, Jr.'s property and making business and financial decisions for him after the joint accounts were established. Demme, Jr. seldom, if ever, managed his assets without the knowledge and consent of defendant Flynn after the joint accounts were established. However, there is no evidence that she had acted in a fiduciary capacity for Demme, Jr. before the accounts were established. There is no evidence whatsoever on the details of how and why the accounts were placed in joint names of Demme, Jr. and Carmen Flynn. Undue influence must consist of over-persuasion or coercion which substitutes the will of one person for the free will of the other. Steller v. Steller, 401 S.W.2d 473, 477 (Mo.1966). Mere suspicion of undue influence is not sufficient. Even where the existence of a confidential relationship is found there must be evidence of facts and circumstances tending to show undue influence before a presumption of undue influence arises. Id. at 478.

In the context of these rules of law we look to the facts. Demme, Jr. had only two years of formal education. Defendant Carmen Flynn was a high school graduate. He retired from his employment as an over-the-road truck driver in October, 1978, and died in January, 1979. Most or all of Demme, Jr.'s siblings were aware of the existence of the joint accounts for a number of years. From 1966 until January of 1979, Demme, Jr. lived separate and apart from defendant Flynn. This was at her request and over his objections. He associated regularly with all of his relatives. Defendant Carmen Flynn was present when Demme, Jr. changed the accounts. The circumstances of her presence are not developed in the record. Defendant Flynn is bound by her own evidence that she had a more dominant personality than Demme, Jr. Defendant also offered evidence that Demme, Jr. was a stubborn person, strong for himself and not weak. Defendant acknowledged that she tended to the personal needs of Demme, Jr., including washing his clothes and helping him out with other domestic chores. Carmen or her husband would go with Demme, Jr. when he purchased clothing and on occasion counseled him not to purchase things which he did not need. Significantly, none of the evidence or any inferences available from the evidence supports a finding that at the time the joint accounts were established they were the product of coercion or undue influence on the part of defendant Carmen Flynn.

In review, the personal representatives did not plead that ...