Cooper v. Jensen

• Decision Date: 01 December 1969
• Docket Number: No. 25311,25311
• Citation: 448 S.W.2d 308
• Parties: Claude C. COOPER, Executor of the Estate of John Robert McCall, Respondent, v. Jacob and Louise JENSEN, Appellants.
• Court: Missouri Court of Appeals

Page 308

448 S.W.2d 308

Claude C. COOPER, Executor of the Estate of John Robert

McCall, Respondent, v. Jacob and Louise JENSEN, Appellants.

No. 25311.

Kansas City Court of Appeals, Missouri.

Dec. 1, 1969.

J. William Blackford, Blackford & Wilhelmsen, Kansas City, for appellants.

Cornelius Roach, III, Donald L. Mason, Kansas City, for respondent.

SHANGLER, Judge.

Appellants Jacob and Louise Jensen filed a claim for $20,000 in the Probate Court of Clay County against the Estate of John R. McCall, deceased. The claim, which was based upon an alleged contract between the Jensens and McCall, was allowed after a hearing. This order was appealed to the Circuit Court by the Executor, Claude C. Cooper, on behalf of the Estate. A jury disallowed the claim and judgment was entered for the Estate. Thereupon, the Jensens took their appeal to the Supreme Court. On motion of the executor, the appeal was transferred to this court because it was not shown that the amount in dispute exceeds $15,000. Apparently, there had been no evidence adduced at the trial tending to prove that the net value of the assets of the Estate available to the executor for the payment of any judgment in favor of appellants is in excess of $15,000.

Jacob and Louise Jensen, man and wife, and John R. McCall, a single man then about 84 years of age, subscribed to a written 'Contract', dated May 28, 1963. Its salient terms were:

'WHEREAS, it is the intention of the first party to make his home with the second parties upon the conditions hereinafter set out, it is by the parties now agreed as follows:

'In consideration of the sum of One Dollar ($1.00), to the second parties paid by the first party, the receipt of which is hereby acknowledged, the second parties agree that during the life time of the first party, or for that term hereinafter set out, they will furnish a home for the first party in their home in Clay County, Missouri, treating this first party as a member of the family, the meaning of which is that they will furnish his food, laundry, bedclothes, afford him the access to such parts of the house as he may desire except their bedroom, giving him free run of the property, except he is not to have any say in the management of the same, and during which time he shall pay the sum of $5.00 per month during the term of this contract.

'This contract is to last during the life of the first party and in the event the second parties have furnished the above items and services, the first party does agree that upon his death he will have by will provided and here represents he will have available for payment, the sum of Twenty Thousand Dollars ($20,000.00) to said second parties, jointly, as husband and wife, and he represents that he has this same day executed a will leaving said parties the sum of Twenty Thousand Dollars ($20,000.00), conditioned upon their faithful performance of this agreement.

'In the event during the life time of this contract, the first party's physician shall advise him that for his best care and treatment he should be confined to a hospital or other facility, then that event shall not be a violation of the obligations of the second parties to this contract.

'Either party may cancel this contract at any time they desire, however, in the event the first party cancels this contract, then first party shall be obligated to pay for the time he has been in the home of second parties, at the rate of Eighty Dollars ($80.00) per month.' (Emphasis added.)

On that same day, May 28, 1963, Mr. McCall began living in the Jensen home where he remained, intermittently, until October 5, 1963. On August 26, 1963, some three months after the execution of the writing, he was admitted to the North Kansas City Memorial Hospital for surgery on his urinary tract. On September 16, 1963, he was discharged and returned to the Jensen home. Some three weeks later, on October 5, 1963, he was readmitted to the hospital for surgical repair of an inguinal hernia. It seems to have become apparent to him that henceforth he would require continuous nursing care. Upon discharge from the hospital once again, therefore, and upon the advice of his attending physicians, Dr. John M. Williams, he decided to enter the Odd Fellows' Home where such care was available. He remained there continuously until his death in March of 1965.

After he had taken up residence with the Jensens, Mr. McCall executed his Last Will and Testament, dated July 31, 1963. Paragraph II provided, in part:

'I have entered into a contract with Jacob and Louise Jensen, the terms and the conditions of which are made a part of this will by reference, and on the condition that the terms of that contract are in force and effect as of the date of my death, I devise and bequeath to Jacob Jensen and Louise Jensen, jointly, as husband and wife, either or the survivor, the sum of Twenty Thousand Dollars ($20,000.00).'

On December 12, 1963, while interned at the Odd Fellows' Home, Mr. McCall executed a subsequent will which neither made any bequest to the Jensens, nor mentioned them. By January of 1964, his mental condition, previously manifested generally by lapses of memory, deteriorated to the extent that he was adjudicated an incompetent by the Clay County Probate Court. In March of 1965, after an internment of seventeen months in the Odd Fellows' Home, Mr. McCall died there. His will of December 12, 1963 was admitted to probate and Mr. Cooper was appointed its executor. The Jensens filed their claim against the McCall estate for $20,000, and it has eventually become the subject of this appeal.

Appellants raise a spate of alleged trial errors. To begin with, they doubt our jurisdiction. They argue (a) As no exceptions were filed by the Estate to any action taken by the probate court, there was nothing for the circuit court, as an appellate court, to determine, and that judgment which we now review is a nullity; also, (b) As neither pleadings nor formal defenses were made in the probate court, there was nothing for the circuit court to determine, and inferentially that court had no power to submit to the jury issues, among them the affirmative defense of cancellation, which was not formally pleaded, and, (c) 'The executor preserved nothing by the affidavit for appeal for the circuit court to acquire jurisdiction.' We consider these points together.

Some of the questions thus raised are quickly dispelled when it is understood that the formal strictures of the Rules of Civil Procedure do not apply to cases originating in the Probate Court or on appeal therefrom to the Circuit Court. Lenhardt's Estate v. Lenhardt, Mo.App., 322 S.W.2d 170, 173. Malone v. Adams, Mo.App., 362 S.W.2d 95, 97, 98. The application of those rules is explicitly confined to proceedings in the Supreme Court, Courts of Appeals, Circuit Courts, and Courts of Common Pleas. Civil Rule 41.02, V.A.M.R. For instance, no answer is required as a responsive pleading to a claim against an estate filed in Probate Court. The executor may, nonetheless, 'interpose any defenses whatsoever that may exist against any demand' and undertake to prove them. Hall v. Greenswell, 231 Mo.App. 1093, 85 S.W.2d 150, 155. It was not essential, therefore, that the Estate plead the affirmative defense of cancellation in either the Probate Court or Circuit Court (as might otherwise have been required by Civil Rule 55.10, V.A.M.R.) in order to submit that issue to the jury in the trial of the appeal in the Circuit Court. Morris v. Retz, Mo.App., 413 S.W.2d 544, 546. The case of Bice v. Birk, Mo.App., 435 S.W.2d 734, cited by appellant, involves an appeal to the Circuit Court from the Magistrate Court, and has no necessary relevance to the problems here posed.

The jurisdiction of the circuit court on an appeal from the probate court is derivative. It is 'no greater and no less than that which the probate court might itself have lawfully exercised'. In re Franz' Estate, Mo., 372 S.W.2d 885, 903. And, although Sec. 472.160(2) specifically provides that no motion to modify or vacate an order of the probate judge is necessary to appeal from that order, Sec. 472.250, providing for a hearing, trial and determination de novo in the circuit court, is held to be 'premised upon a prior hearing trial and determination in the probate court and contemplates the relitigation of a matter theretofore litigated and fought out in the probate court * * *.' In re Mills, 349 Mo. 611, 162 S.W.2d 807, 811; State ex rel. Kinealy v. Hostetter, 340 Mo. 965, 104 S.W.2d 303, 307. Thus, appellants' contention that because formal exceptions to the rulings of the probate judge were not made, the circuit court acquired no jurisdiction over an appeal of the issues actually presented and contested, is palpably untenable. The cases cited by appellants in support of that specific contention, In re Mills, supra, and In re Nelson, 237 Mo.App. 28, 166 S.W.2d 333 involved exceptions to final settlements, and are not in point. Those cases reflect the traditional practice, then extant, of requiring objections to improper items in settlements to be made and preserved by written exceptions presented to the probate court. These exceptions served not only to frame the issues in the probate court and, hence, upon appeal to the circuit court, but also had the effect of setting aside the order approving the settlement. Pillman v. Hampe, 335 Mo. 910, 75 S.W.2d 582, 584; See, also, In re Thomassson's Estate, 355 Mo. 274, 196 S.W.2d 155, 157, 170 A.L.R. 1170. Usage, however, has not extended the requirement of written exceptions to claims filed against an estate.

In determining whether it will exercise its jurisdiction on appeal, the circuit court must first conclude that an issue was presented to the probate court respecting that particular matter. That determination may be made from the information contained in the record. In re Nelson's Estate, supra, 166 S.W.2d p. 338. As to a demand against the...