DeWald v. Morris, 24288

• Citation: 397 S.W.2d 738
• Decision Date: 06 December 1965
• Docket Number: No. 24288,24288
• Parties: LaVerna DeWALD, Appellant, v. W. S. MORRIS, Successor Guardian of the Estate of John J. DeWald, Incompetent, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 738

397 S.W.2d 738

LaVerna DeWALD, Appellant, v. W. S. MORRIS, Successor Guardian of the Estate of John J.

DeWald, Incompetent, Respondent.

No. 24288.

Kansas City Court of Appeals, Missouri.

Dec. 6, 1965.

Allan R. Browne, Ennis, Browne & Martin, Kansas City, for appellant.

Edmund B. Smith, Meyer, Smith & Penner, Kansas City, for respondent.

HOWARD, Judge.

This is a proceeding on a claim for services rendered to the dependent mother and stepfather of an incompetent for $5,000.00 computed at the rate of $50.00 per week, against the estate of the incompetent. The claim was disallowed by the probate court and on appeal the circuit court sustained a motion for directed verdict at the close of plaintiff's evidence. We shall refer to the claimant La Verna DeWald as plaintiff and to W. S. Morris, guardian of the Estate of John J. DeWald, as defendant.

The incompetent John Joseph DeWald has been under guardianship at least since 1921. More than fifty years ago Mrs. DeWald, mother of the incompetent, remarried. Her name since such remarriage was Jennie Bledsoe. Her husband was Richard Bledsoe. Mr. Bledsoe, after his marriage to Jennie Bledsoe, helped raise the incompetent as his son. For many years Jennie Bledsoe had been the guardian of the incompetent and had also been considered a dependent of her incompetent son, John DeWald. For at least the last several years the probate court had made an allowance of $180.00 per month from the Estate of John J. DeWald for the support and maintenance of Jennie Bledsoe. In 1961 Mr. and Mrs. Bledsoe were both 87 years old, feeble and in failing health. Their care was a problem and when members of the family asked the advice of the attorney for the estate of John J. DeWald (who seemed to be well known to the entire family), it was suggested that they should be put in a nursing home. This would cost $175.00 per month each. When Mrs. Bledsoe was advised of the plan to put her in a home, she fell to her knees crying and begged and pleaded not to be sent to a home. Mr. Bledsoe flatly refused saying: 'This is my home. I will die here.' After discussion among the family and with Mr. and Mrs. Bledsoe, LaVerna DeWald stated that she would take care of them; that she and her husband would move in with Mr. and Mrs. Bledsoe. Mrs. Bledsoe promised to give her home to LaVerna and her husband in payment for such care.

LaVerna DeWald had been married to Frank DeWald, Jr. for about two months at this time. Frank DeWald, Jr. was the grandson of Jennie Bledsoe and the nephew of John J. DeWald, the incompetent. Frank had lived with his grandmother and taken care of her and Mr. Bledsoe for many years up until the time of his marriage, at age 35, when he moved out of the Bledsoe house and set up housekeeping with his wife.

LaVerna DeWald and Frank did move in with Mr. and Mrs. Bledsoe on September 29, 1961, and LaVerna took care of both Mr. and Mrs. Bledsoe on a 24 hour, 7 day a week basis, until Mr. Bledsoe died February 27, 1962, and continued to take care of Mrs. Bledsoe until she went to the hospital early in December of 1962. Mrs. Bledsoe died December 12, 1962.

It appears that LaVerna did all the washing, ironing, cooking and housekeeping, as well as nursing both patients and cleaning up after them when they no longer had control of their bodily functions. The evidence shows that all this work was done in an excellent manner, and that she kept the house and both patients in a spotlessly clean condition. When they moved in with the Bledsoes, LaVerna and Frank redecorated the house, with the consent of the attorney for the incompetent's estate, who purchased a new stove for the house, at least inferentially out of the funds of the estate. Frank DeWald testified: '* * * Mr. Smith was nice enough to let us go ahead and redecorate it, bought a new stove.'

As previously stated, Mrs. Bledsoe had promised to will her home to LaVerna and Frank DeWald in payment for the care given to Mr. and Mrs. Bledsoe. However, Frank DeWald testified that when Mr. Bledsoe died, '* * * the house was signed over to the Veterans Administration or estate, I guess it was, for my grandfather's funeral expenses'. After the house was gone, Mrs. Bledsoe repeatedly promised LaVerna that she would be paid, and well paid, for her work by the estate of her son John J. DeWald, the incompetent. It was testified that Mrs. Bledsoe stated that she never had any trouble getting anything she wanted from the estate, including cars and everything else, and that she was dependent upon her incompetent son and was supported by his estate.

During all the time up to her death, Mrs. Bledsoe was mentally alert, although physically ill and feeble. She was the guardian of her incompetent son, John J. DeWald, and it appears that, in addition to the regular allowance for support made to Mrs. Bledsoe from his estate, the estate also paid for medicine for Mrs. Bledsoe when billed by the drug store which filled her prescriptions. Likewise, after the house was signed over to the estate on the death of Mr. Bledsoe the estate paid the rent on an apartment occupied by Mrs. Bledsoe until she entered the hospital on her terminal illness.

At the close of plaintiff's evidence, a motion for directed verdict was filed by the defendant on the basis of insufficiency of the evidence. This motion was sustained by the trial court and verdict and judgment for the defendant followed. On this appeal plaintiff contends that the trial court erred in directing a verdict for defendant because the evidence adduced by plaintiff was sufficient to make a case for the jury and also that the trial court erred when it excluded evidence concerning the value or financial status of the estate of John J. DeWald.

The brief filed in this court by defendant makes only one point and that is that this matter is governed by the provisions of the Uniform Veterans' Guardianship Law and particularly Section 475.445 RSMo 1959 and V.A.M.S. (all statutory citations are to RSMo 1959 and V.A.M.S. unless otherwise noted). Although several witnesses testified that John J. DeWald was now, and for many years had been, a patient in various Veterans Administration hospitals or facilities, there was no other evidence before the court which would bring this proceeding within the provisions of the Uniform Veterans' Guardianship Law. Section 475.445 supra provides that a guardian shall not 'apply any portion of the income or the estate' of a veteran whose estate is subject to the Uniform Veterans' Guardianship Law for the support or maintenance of any person other than the ward, or his spouse and minor children, except upon prior order of the Probate Court after a hearing. Notice of such petition and hearing are required to be given to the Veterans Administration. The important words in the above provision are 'income' and 'estate'. Section 475.480 RSMo 1959 is likewise a part of the Uniform Veterans' Guardianship Law. It provides that the uniform law shall apply 'to all income and estate' of a veteran whether the guardian was appointed under the Uniform Veterans' Guardianship Law or under any other provisions of law. The words 'income' and 'estate' are not used in these statutes in their general sense, but in a special and restrictive sense, as set out in Section 475.380 RSMo 1959, which gives special definitions to such terms. Said section provides: 'As used in sections 475.380 to 475.480: * * * (3) 'Income' means moneys received from the Veterans Administration and revenue or profit from any property wholly or partially acquired therewith; (4) 'Estate' means income on hand and assets acquired partially or wholly with income; * * *.' Thus, it is only when we are dealing with moneys received from the Veterans Administration or property, or income from property, acquired with such benefits received from the Veterans Administration that the Uniform Veterans' Guardianship Law, and particularly Section 475.445 relied on by defendant, applies. In this case there is absolutely no evidence showing that these provisions are applicable to these proceedings. Even if we were to assume or infer (which we do not) from the mere fact that the incompetent John J. DeWald is and long has been a patient in a Veterans' Administration hospital, that the estate has income, or assets derived from income, from the Veterans' Administration, there is no showing that the estate does not have either income or assets, or both, derived from sources other than the Veterans' Administration. It is also significant that the Veterans' Administration, although it has a right so to do, is not appearing and contesting the allowance of this claim. See McKay v. Snider, 354 Mo. 674, 190 S.W.2d 886.

The only authority cited by defendant in support of his contention that the Uniform Veterans' Guardianship Law is applicable to the present proceeding is the case of In re Hoerman's Estate, Mo., 247 S.W.2d 762. This case is not in point. It involved a mother who was guardian of her incompetent veteran son. For thirty years she had received checks from the Veterans' Administration made payable to her as guardian, which constituted disability payments under Government War Risk insurance. She cashed these checks as received and used the money herself instead of putting the money into the estate of her incompetent son. During part of this time, an allowance was made out of the estate for her support and when it was discovered that she was using part of such allowance to help support her other adult children, such allowance was reduced. When the conversion of the checks was discovered, the mother was removed as guardian. At the time of her final settlement she secured an order from the probate court making an additional monthly allowance to her, for her support and maintenance for the past thirty years, to cover the checks which she had cashed and used. On exceptions to her final settlement, the court held that the order retroactively...