Boeving's Estate, In re

• Citation: 388 S.W.2d 40
• Decision Date: 18 February 1965
• Docket Number: No. 8309,8309
• Parties: In the Matter of the ESTATE of Ethyle BOEVING, an incompetent. William R. Boeving, Guardian, Appellant.
• Court: Court of Appeal of Missouri (US)

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388 S.W.2d 40 In the Matter of the ESTATE of Ethyle BOEVING, an incompetent.
William R. Boeving, Guardian, Appellant. No. 8309. Springfield Court of Appeals, Missouri. Feb. 18, 1965.

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Gilbert D. Stephenson, Kennett, for guardian-appellant.

George R. Wilhoit, Jr., Poplar Bluff, amicus curiae.

PER CURIAM.

This is an appeal by William R. Boeving (hereinafter referred to as the guardian) from the judgment of the Circuit Court of Butler County entered on October 14, 1963, which removed Boeving as guardian of the person and estate of his mother, Ethyle Boeving, an incompetent (hereinafter referred to as the ward).

We first inquire into our appellate jurisdiction, as is our duty even though it be not challenged by the parties. Morrow v. Caloric Appliance Corp., Mo.App., 362 S.W.2d 282, 283(2); Hammonds v. Hammonds, Mo.App., 289 S.W.2d 903, 904(1). The inventory and appraisement of the ward's estate included realty valued at $47,275 and personalty valued at $68,549.51; and, in the guardian's second annual settlement filed during the latter part of May 1963 (but not approved by the probate court), shortly before institution of the instant proceeding to remove the guardian, he charged himself with personalty valued at $67,318.40. However, in a proceeding such as this, 'the amount in dispute' for appellate jurisdictional purposes [Art. V, Sec. 3, Const. of 1945, 2 V.A.M.S.; Sec. 477.040 ¹ is not the value of the ward's estate but the value of the office of guardian, to wit, the fees or compensation to which the removed and appealing guardian would be entitled for subsequent services as such. ² The compensation of a guardian is such 'as the court shall deem just and reasonable' [Sec. 475.265], and nothing in the instant record indicates the compensation which the instant guardian would receive. The appellate jurisdiction of our Supreme Court is limited [Dunnegan v. Gallop, Mo., 369 S.W.2d 206, 208(1); State on Inf. of Anderson ex rel. McNutt v. Northup, Mo., 367 S.W.2d 512, 515(10)] and, to be invoked, must be shown affirmatively by the transcript on appeal. Snowbarger v. M. F. A. Central Cooperative, Mo., 317 S.W.2d 390, 393(3); State ex rel. State Highway Com'n v. Schade, Mo., 265 S.W.2d 383, 384(2). On the record here presented, we are not ousted from our general appellate jurisdiction. In re Adelman's Estate, Mo., 370 S.W.2d 296, 297(1); In re Jackson's Will, Mo.App., 291 S.W.2d 214, 218(2-4).

Upon his petition [Sec. 475.060] averring, inter alia, that the ward's husband and former guardian had died and that the ward then was confined in a hospital at Poplar Bluff, and upon approval of his guardian's bond in the penal sum of $80,000 [Sec. 475.100], letters of guardianship were issued to William R. Boeving, the guardian herein, by the Probate Court of Butler County on May 10, 1961.

On July 30, 1962, the guardian filed in the probate court his first annual settlement covering the period to May 31, 1962, in which he reported (a) items of income aggregating $41,278.44 (including allowances of $18,900 from the estate of the ward's deceased husband, proceeds of $11,606.83

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from insurance policies on his life, farm rents of $4,918.51, stock dividends of $4,363.80, social security payments of $1,464.30, and a hospital refund of $25) and (b) items of expenditure aggregating $26,741.90 (including $5,000 to the two Poplar Bluff attorneys, one of whom was the probate judge's son, then representing the guardian, forty-six other items in excess of $100 each, and innumerable smaller items). The first annual settlement was approved on the day it was filed, i.e., on July 30, 1962. On August 2, 1962, the penal sum of the guardian's bond was reduced from $80,000 to $60,000.

On or about October 8, 1962, the probate court entered an order appointing Joseph L. Smith of Kennett, Missouri (elsewhere in the transcript identified as a C.P.A.), as 'cosigner' with the guardian of checks drawn on the ward's account.

On or about May 22, 1963, the guardian filed in the probate court his second annual settlement covering the period from May 31, 1962, to May 6, 1963, in which he reported (a) items of income aggregating $24,087.28 (including an allowance of $3,900 from the estate of the ward's deceased husband, payments of $10,104.73 from the 'Ethyle Boeving trust,' checks for $1,153.41 from life insurance companies, farm rents of $5,979.05, stock dividends of $1,404.32, social security payments of $1,148.40, interest of $280 on a time deposit, and an income tax refund of $117.37) and (b) items of expenditure aggregating $10,720.30 (including nineteen items in excess of $100 each, as listed marginally, ³ and innumerable smaller items).

In the interim between the filing of the first annual settlement and the filing of the second annual settlement, the guardian dismissed his Poplar Bluff attorneys (because, so he says, of the $5,000 fee charged for services during the first year) and employed his present counsel, a Kennett attorney, who sought and was allowed a fee of $600 for services during the second year. The guardian earnestly avers that the probate judge's 'dissatisfaction' with the second annual settlement stemmed from the guardian's dismissal of the judge' son as his attorney. Certainly we do not, on the meager and unsatisfactory record before us, honor and embrace so serious a charge against a respected member of the judiciary; but, the fact remains that, perhaps coincidentally, the guardian's difficulties seem to have begun with his change of counsel.

On May 27, 1963, the probate clerk wrote the guardian's attorney that 'we are unable to accept your [second annual] settlement as filed herein,' but the only specific complaint was that 'you have not started your settlement with the exact balance as shown

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on the previous settlement.' After pointing out the two particulars in which the assets listed as on hand at the beginning of the second year differed from those shown in the first annual settlement as on hand at the end of the first year, the probate clerk's letter closed with the request, 'kindly give this your prompt attention, correcting said settlement.' The guardian's attorney replied under date of May 29, 1963; Joseph L. Smith, the Kennett C.P.A. cosigning the guardian's checks, talked with the probate clerk; and on June 5, 1963, 'an amended first page to the [second] annual settlement' was mailed by the guardian's attorney to the probate clerk, with the request that the amended page be substituted for the first page as originally filed. This apparently satisfied the only complaint in the probate clerk's letter of May 27, since that complaint was not mentioned in the 'Order To Show Cause Why Guardian Should Not Be Removed' (hereinafter referred to as the order to show cause), which was issued shortly thereafter, to wit, on June 10, 1963, in the following language and form:

'Now on this 10th day of June, 1963, the Court takes up for consideration a purported annual settlement filed by the guardian, William R. Boeving, and the Court finds that said purported annual settlement is filled with numerous and divers claims of credits which constitute unauthorized and unjustified expenditures upon the part of the guardian of large amounts of the funds belonging to the estate of this incompetent. Said purported settlement contains numerous items of the funds of the estate exceeding $100.00 each, and which alleged purchases made by the guardian, for the benefit of the incompetent, are not itemized so as to inform the Court of the true facts concerning said alleged expenditures.

'It is therefore, considered, ordered and adjudged by the Court that the said guardian, William R. Boeving, be and he is hereby cited to appear in this Court on the 26th day of June, 1963, and make a showing to show cause, if any he has, why he should not be removed from office as guardian of the person and estate of Ethyle Boeving, incompetent.'

On account of injuries sustained on May 24, 1963, the probate judge was hospitalized for four weeks thereafter, so the order to show cause was issued by him during that period of hospitalization. At the hearing in circuit court, the probate judge agreed upon cross-examination that in his court some settlements by guardians were filed by their attorneys without personal appearance by the guardians; that, when 'anything on the settlement' needed explanation, he required the guardian to come into court personally; but that, before issuing the order to show cause in the instant proceeding, he had not asked either the guardian or his then attorney to come into court personally and explain the second annual settlement. The probate judge also testified that he had 'a rule' in his court that a guardian must obtain prior approval of any expenditure in excess of $100--'that is a rule that we follow in our court and it is a matter of expenditure of more than a hundred dollars, that the guardian first get appropriation from the court.' The evidence did not show whether 'the $100 rule' had been reduced to writing, or when or how it had been promulgated. The circuit judge foreclosed interrogation as to whether 'the $100 rule' had been enforced during the first year of the guardianship under consideration, but it was established that no...