Earney v. Clay

• Decision Date: 07 November 1974
• Docket Number: No. 9644,9644
• Citation: 516 S.W.2d 59
• Parties: Walter EARNEY et al., Plaintiffs-Appellants, v. David L. CLAY et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 59

516 S.W.2d 59

Walter EARNEY et al., Plaintiffs-Appellants, v. David L. CLAY et al., Defendants-Respondents.

No. 9644.

Missouri Court of Appeals, Springfield District.

Nov. 7, 1974.

John L. Woodward, Steelville, Morton K. Lange, Cuba, for plaintiffs-appellants.

Charles T. Smallwood, Northern, Williams & Smallwood, Rolla, G. C. Beckham, Steelville, for defendants-respondents.

TITUS, Judge.

Contrary to the claims of her collateral kinsmen, it was judicially determined that the writing executed by Ethel Clay in July 1960 and admitted to probate October 6, 1966, was her last will and testament. Earney v. Clay, 462 S.W.2d 672 (Mo.1971). After directing payments of debts, funeral expenses and placement of a marker on her designated grave in the Liberty Cemetery near Steelville, Missouri, the will bequeathed and devised 'all of the rest and residue of my property . . . (after same has been reduced to cash as hereinafter provided), in trust, to the . . . County Court of Crawford County, Missouri, to be held in trust . . . in accordance with the provisions of (now 214.150 et seq. RSMo 1969, V.A.M.S.) for the purpose of the perpetual care and maintenance of my grave site, and the grave site of my husband (who predeceased Mrs. Clay), and the grave sites of the Clay family located in the Liberty Cemetery.' The will stipulated that the person appointed by the county court to administer the fund (§ 214.170), was 'to place flowers on said grave on each Decoration Day, and keep said grave sites in orderly and attractive condition, in so far as the earnings of said trust will permit.' Co-executors named in the will were 'my husband's nephew, David Lee Clay and Darrell Branson,' with the provision that if 'either of them should die . . . the survivor is to act as sole Executor.' (Darrell Branson died and David Lee Clay acted as sole executor in all things concerned here). The co-executors were directed by the will 'to convert all of my property to cash, and . . . are to have power to sell both real and personal property without order of court and are to sell said property to such person, and at such price, as they see proper (and) they are to use their best judgment as to whether (the land) is to be sold in one tract or divided into parcels. They are to pay all of my debts, funeral expenses and administrative expenses and upon final settlement . . . the remaining cash is to be paid over in trust to the County Court . . . as provided in . . . this will.'

Subsequent to final decision in the will contest (Earney v. Clay, supra, 462 S.W.2d 672), 19 collateral heirs of testatrix filed the present action February 9, 1971. The cause was tried on plaintiffs' first amended petition which was filed September 14, 1972. Ultimately included as defendants were the executor, the parents of the executor who had purchased Tracts 1, 2 and 3 (85 acres) from the executor, and Larry Branson (son of the deceased co-executor) et uxor who purchased Tract 4 (25 acres) from the executor. A notice of lis pendens had been filed and the purchasers of the four tracts were aware of the pendency of this litigation when they bought the real estate from the executor in February and March 1972.

Pared of its diffusion, the amended petition of plaintiffs sought: (1) to establish a resulting trust to that part of the testamentary trust which plaintiffs asseverated was in excess of the sum necessary to satisfy the terms of the testamentary trust and have the excess paid to plaintiffs as intestate property (§ 474.030 RSMo 1969, V.A.M.S.) under § 474.010(2)(c) RSMo 1969, V.A.M.S.; (2) to set aside the sales of real estate made by the executor on the averred grounds that he, 'acting illegally, fraudulently, in collusion with the purchasers, and in excess of the authority granted him under the will, and for the purpose of appropriating an advantage to himself and to the purchasers, in fraud of, and to defeat the rights of the plaintiffs,' sold the real estate for 'less than one half its true value'; and (3) to establish plaintiffs' rights to reconversion by election. Plaintiffs tendered the sum of $2,000, claiming it was sufficient to insure the proper execution of the testamentary trust. The trial court's findings of facts and conclusions of law (Rule 73.01(b), V.A.M.R.) compelled a judgment adverse to the plaintiffs on all scores and they appealed.

Plaintiffs' points relied on, as penned in their brief are: 'I. The Court erred in failing . . . to set aside the sale(s) of . . . real estate by the Executor . . . because: A) The evidence clearly established that the Executor was directly and indirectly interested in the sale, that he failed to exercise the same degree of care and judgment one would use in disposing of his own property, and that he failed to obtain or even attempt to obtain an adequate consideration for the property. II. The Court erred in failing and refusing to recognize appellants' right to reconversion by election, because: A) The evidence clearly established appellants' right of reconversion. III. The Court erred in ruling that the assets of the . . . Estate, and of the testamentary trust, were not in excess of the amount necessary to carry out the terms of the trust, and in failing and refusing to declare a resulting trust for the excess, because: A) The undisputed evidence was that the grave sites could be maintained for not more than $100.00 per year, and a principal of $2,000.00 would be more than adequate to carry out the terms of the trust, and to provide for the future as well. IV. The Court erred in finding that the four tracts . . . were of the fair and reasonable market value of $14,800.00 in 1966 and determining that the value of this land in 1972 was only $13,800.00 plus 30%, or $17,940.00 because: A) The credible evidence in regard to the value of the real property in 1972 was that evidence submitted by appellants' witnesses, and the credible evidence in regard to appreciation in value of real property between 1966 and 1972 was that evidence submitted by appellants' witnesses. (No citation of authority follows point IV). V. The Court erred in finding that there were 30 grave sites in the cemetery and more to be added, which were contemplated by the terms of the will, because: A) The language of the will does not include the distant relatives about which respondents testified.' (No citation of authority follows point V.)

As we have frequently and unfortunately been required to do, we observe initially that the points relied on save and state nothing for appellate review. Rule 84.04(d) condemns abstractions and conclusions, states that the points should be accompanied 'with citations of authorities thereunder,' and mandatorily requires that each point shall state not only what the alleged error was but why it was error. Keith v. Tucker, 483 S.W.2d 430, 434(2) (Mo.App.1972). The rule applies to appellate review of court-tried cases. Lane v. Katt, 421 S.W.2d 544, 546(6) (Mo.App.1967). Point I does not set forth 'why' executor's interest in the sales should condemn them, 'why' he did not exercise due care or 'why' the executor's sales efforts amounted to utter failure in obtaining adequate consideration for the property. Point II is a blatant conclusion or abstraction which does not attempt to define wherein and why plaintiffs had any right to reconversion, and Point III does not undertake to demonstrate why either the claimed $2,000 principal sum or earnings therefrom would satisfy the requirements imposed by the testamentary trust. The absence of any citations of authority to Points IV and V, would justify in us considering them as being abandoned. Adams v. White, 488 S.W.2d 289, 294(12) (Mo.App.1972); J. R. Meade & Company v. Barrett & Company, 453 S.W.2d 632, 636(4) (Mo.App.1970). Furthermore, the abstraction appearing in Point IV that plaintiffs' evidence was the only credible evidence in the case, is no better or different from saying that the court's findings were against the credible evidence. For many years such assignments have been held too general to preserve anything for review. School Services of Missouri, Inc. v. Caton, 419 S.W.2d 954, 956(2) (Mo.App.1967). A point complaining that plaintiffs' evidence was the only credible evidence adduced, i.e., that the trial court's finding was contrary to the credible evidence, is a tacit admission there was some evidence to support the court's finding (Nutz v. Shepherd, 490 S.W.2d 366, 369(5) (Mo.App.1973)), and affronts the rule permitting the trial court, when sitting as the fact trier, to believe all, none or part of any witnesses' testimony. Edmonds v. Stratton, 457 S.W.2d 228, 234(12) (Mo.App.1970). Although the points relied on have not been properly saved, we will review them on their merits.

Because of the interrelation, Points I and IV will be considered together. The will imposed upon executor the absolute and mandatory obligation of selling all property of the executrix, leaving him only discretion of selling it at such price to such person as he should see proper and whether to sell it in whole or in parts. 33 C.J.S. Executors and Administrators § 274 b., pp. 1292--1293. When the will confers upon the executor the power to sell property, he has the option of acting under the testamentary direction without recourse to the court for license or order, or under the law governing administration. § 473.457, subd. 3 RSMo 1969, V.A.M.S.; Historical Note, 26 V.A.M.S., p. 155; 33 C.J.S. Executors and Administrators § 277, at p. 1299. Plaintiffs do not question executor's authority to sell the land without court order or supervision.

The real estate in question, consisting of four tracts, was inventoried, appraised by various witnesses and sold by the executor at and for the following sums:

                                     PLAINTIFFS' WITNESSES     DEFENDANTS' WITNESSES
                                    ---------------------------------------------------
                          INVENTORY      HALL

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