Dysart v. State Dept. of Public Health and Welfare

• Citation: 361 S.W.2d 347
• Decision Date: 03 October 1962
• Docket Number: No. 8144,8144
• Parties: Francis M. DYSART, Claimant-Respondent, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 347

361 S.W.2d 347

Francis M. DYSART, Claimant-Respondent, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Defendant-Appellant.

No. 8144.

Springfield Court of Appeals, Missouri.

Oct. 3, 1962.

Motion for Rehearing or for Transfer to Supreme Court Denied

Oct. 29, 1962.

Thomas F. Eagleton, Atty. Gen., Moody Mansur, Asst. Atty. Gen., Jefferson City, for appellant.

Meredith B. Turner, Stewart, Reid & Turner, Springfield, for respondent.

McDOWELL, Judge.

This appeal is from a judgment of the Circuit Court of Greene County, Missouri, reversing the decision and order of the State Department of Public Health and Welfare removing claimant from the old age assistance rolls August 14, 1961. The Director made the following statement of the case:

'Claimant was removed from the Old Age Assistance rolls on August 14, 1961, on the basis that he had made a transfer of property without receiving fair and valuable consideration. From this decision he duly perfected this appeal, and a hearing was held before a Referee on October 4, 1961. Claimant appeared in person, and he was represented by his Attorney, Mr. Jerry B. Buxton.

'Based upon the entire record and evidence in this case, the Director of the Department of Public Health and Welfare makes the following:

Findings of Fact.

'Claimant owns the property in which he lives, located at 921 Chicago Avenue, Springfield, Greene County, Missouri. Claimant has owned the above-located property for several years and in January 1961, owed approximately $800.00 on it. During January 1961, claimant increased the loan on his property by borrowing an additional $1,000.00. The payments on the old loan had been $15.00 per month. On the increased loan they are $35.00 per month. This additional sum of money was secured by Mr. Dysart at the request of his former daughter-in-law so that she could purchase a home for her and her children. Both claimant and Martha Dysart, the former daughter-in-law, signed the note for the new loan. Martha Dysart has paid the additional $20.00 payment at all times, and since claimant's case was closed has paid the entire payment on the loan. Claimant turned over to Martha Dysart the entire $1,000.00 without receiving any consideration. It is found that claimant in January 1961, transferred the sum of $1,000.00 to his former daughter-in-law, Martha Dysart, without receiving fair and valuable consideration of approximately equal value at the time and is, therefore, ineligible for Old Age Assistance benefits at this time.

'DECISION: Section 208.010, Vernon's Annotated Missouri Statutes, provides, in part, that public assistance benefits shall not be paid to any claimant who has made, or whose spouse with whom he is living has made, an assignment, conveyance or transfer of real or personal property or any interest therein of any value within five (5) years preceding the date of the investigation without receiving a fair and valuable consideration. It further provides that fair and valuable consideration means money or real or personal property received at the time of the transfer equal to the market value of the property transferred, and shall not include support, services, or other advancements made by a relative to a claimant. Any claimant who has made, or whose spouse with whom he is living has made, such assignment, conveyance or transfer shall be ineligible to receive benefits for the number of months within five years from date of transfer as the market value of the property as determined by the Division of Welfare is dividisible by the average monthly grant paid in the state at the time of the investigation to an individual under the program for which benefits are claimed.

'After a careful review of the evidence submitted, it is found that claimant transferred the sum of $1,000.00 in January, 1961, without receiving fair and valuable consideration of approximately equal value at the time, and, therefore, he is ineligible to receive Old Age Assistance benefits at this time.'

From this decision and order Francis M. Dysart, claimant, appealed.

On February 16, 1962, the appeal from the old age assistance claim was heard by the trial court, the transcript examined, cause argued, reversed and remanded. The trial court found that the decision and order of the Director of the State Department of Public Health and Welfare of November 15, 1961, declaring claimant ineligible to receive old age assistance was arbitrary and unreasonable; that there was no substantial evidence on the record to sustain the director's determination and that such determination was not based on fact or law, for the reason that the transaction which gave rise to the denial of old age assistance was not a transfer of real or personal property, without receiving fair and valuable consideration for said property, within the meaning of Sec. 208.010 RSMo 1959, as amended, and that 'this cause is hereby remanded to the State Department of Public Health and Welfare for redetermination of this issue in conformity with the judgment of this court.'

On May 11, 1962, the cause was appealed to this court.

The record testimony shows that Martha Dysart, daughter-in-law of Francis M. Dysart, was the widow of claimant's son. Claimant testified;

'Q. Is there a loan against your property there on Chicago Avenue? A. Yes, sir. I don't know just what it amounted to. About $800.00 at that time, didn't it?

'Q. You say, at that time. I believe you told me in January of this year that you increased the loan? A. Yes.

'Q. Would you tell us, please, for what purpose you increased the loan? A. Well, my daughter-in-law needed the money, and come to me and asked me would I let the place stand good for it, and I went to Wyeatt, and he said 'Yes, I'll be glad to loan it.' (Mr. Wyeatt is with the United Savings and Loan Association.)

'Q. Was there a note and mortgage signed, a new mortgage signed, when this loan was made? A. Yes, sir.

'Q. Did you sign the mortgage? A. Yes, sir, I signed the mortgage.

'Q. And did you also sign the note? A. Yes.

'Q. Did someone other than yourself sign the note? A. My daughter-in-law did.

'Q. Is your son, who was formerly married to Martha Dysart, deceased at this time? A. Yes, he has been for eight years.

'Q. Do you know of your own knowledge whether Martha Dysart has children of this marriage? A. She has got two of my son's. * * * She has got three others.'

The evidence is undisputed that it was the agreement between Martha Dysart and her father-in-law, claimant, that she needed $1,000.00 to purchase a home; that she did not have sufficient security to borrow the money and went to claimant and asked him to sign a note with her and increase the loan on his home to $2,000.00 so as to pay off the existing mortgage indebtedness of $895.00 to the loan company and allow Martha Dysart $1,000.00. Both parties signed the note and the loan was secured by a new mortgage for $2,000.00. We think the evidence is undisputed that Martha Dysart was to pay $20.00 monthly on the $1,000.00 she received and claimant was to pay $15.00 monthly, the same as he was paying on his old indebtedness. In other words, the parties jointly borrowed $2,000.00 on their joint note and claimant secured the loan on his home.

The evidence further shows that claimant and his daughter-in-law each paid their instalments until claimant was removed from the old age assistance rolls and could no longer pay and that since that time Martha Dysart has paid the entire $35.00, being the instalment on the $1,000.00 which was her part of the loan and $15,00 that was Dysart's part.

We do not agree with the contention and finding of the State Department of Public Health and Welfare that claimant ever turned over $1,000.00 of his money to Martha Dysart. The money she received was the part of the loan which was agreed upon before it was made. She pays the instalments on that money and is indebted on the note signed by her for the same. There is no substantial evidence to support the contention of the State Department of Public Health and Welfare that claimant was to receive all the money from the loan but the evidence is undisputed that he was to receive sufficient money to pay off the existing indebtedness against his home at that time. Undoubtedly, there can be no dispute that claimant was merely loaning his security to his deceased son's wife to enable her to buy a home.

Appellant makes two assignments of error. First, that the Circuit Court erred in remanding the proceedings to the Director of the Department of Public Health and Welfare for redetermination on the basis that the decision of the Director was arbitrary and unreasonable.

Secondly, that the court erred in holding that respondent did not make an assignment or transfer of property or an interest therein when he executed a mortgage or deed of trust against his property without him receiving the money that was borrowed.

In our decision it first becomes necessary to determine whether or not claimant's execution of a deed of trust against his property to secure a loan made to him and his daughter-in-law for $2,000.00 wherein she received $1,000.00 and the balance of the loan was used to pay off claimant's indebtedness renders claimant ineligible for old age assistance under Section 208.010 RSMo 1959 V.A.M.S. as amended.

Section 208.010 reads: 'Benefits shall not be payable to any claimant who:

'(1) (a) Has made, or whose spouse with whom he is living has made, an assignment, conveyance or transfer of real or personal property or any interest therein of any value within five years preceding the date of the investigation without receiving fair and valuable consideration for said property. The date of recording or filing of any instrument affecting property that is assigned, conveyed or transferred by written instrument shall be considered as the date such assignment, conveyance or transfer occurred. 'Fair and valuable consideration' as used herein...