Estate of Brown v. Fulp

• Decision Date: 28 August 1986
• Docket Number: No. 13966,13966
• Citation: Estate of Brown v. Fulp, 718 S.W.2d 588 (Mo. App. 1986)
• Parties: In re ESTATE OF Bessie L. BROWN, Incapacitated-Disabled, Harold Merritt, Guardian-Conservator, Basil Ferguson, Lloyd Cowan, Bessie Elaine Smith, Bill Ferguson, Leroy Ferguson, Jeanne Erickson Meese and Nancy Williams, Appellants, v. Wanda FULP and Harold Fulp, Respondents.
• Court: Missouri Court of Appeals

Page 588

718 S.W.2d 588

In re ESTATE OF Bessie L. BROWN, Incapacitated-Disabled Harold Merritt, Guardian-Conservator, Basil Ferguson, Lloyd Cowan, Bessie Elaine Smith, Bill Ferguson, Leroy Ferguson Jeanne Erickson Meese and Nancy Williams, Appellants, v. Wanda FULP and Harold Fulp, Respondents.

No. 13966.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 28, 1986.

Motion for Rehearing or Transfer Denied

Sept. 18, 1986.

Application to Transfer Denied

Nov. 18, 1986.

Robert L. Stemmons, Stemmons & Stemmons, Mt. Vernon, for appellants.

Larry W. Meyer, Aurora, J. Edward Sweeney, Monett, for respondents.

HOGAN, Presiding Judge.

Bessie L. Brown, to whom we shall refer as Bess, was adjudged incapacitated and disabled within the intent of § 475.050, RSMo Supp.1984. Harold Merritt was appointed Guardian of Bess' person and Conservator of her estate. As such, Merritt brought this action to discover assets under the provisions of § 475.160, RSMo Supp.1984, naming Wanda and Harold Fulp as respondents. Upon motion, the trial court added petitioners Ferguson, Cowan, Smith, Meese and Williams as parties because they, together with Harold Merritt, are legatees under Bess' will dated July 16, 1981. ¹ The primary object of this action was to determine the title and right to possession of personalty in the form of certificates of deposit issued by the United Missouri Bank of Monett to "Bess Brown or Wanda Fulp or survivor." The face value of these certificates was $65,300.00. After hearing evidence and receiving more than 64 exhibits the trial court ordered: 1) that the certificates (which Wanda cashed out and had reissued in her own name) be retitled in the names "Wanda Fulp or Harold L. Merritt as Conservator of the Estate of Bessie L. Brown"; 2) that ownership of the retitled certificates should be in joint form in compliance with the statutes pertaining to joint bank accounts "so that upon the prior death of Wanda Fulp the entire proceeds of [the] said certificates shall be paid to the protectee's estate; or upon the prior death of Bessie L. Brown, the entire proceeds shall be payable to Wanda Fulp"; 3) that the protectee's estate be reimbursed from the retitled certificates in an amount equal to one-half the expenditure made from the protectee's estate for the protectee's care, support and maintenance from November 15, 1983, (the date of the conservator's appointment) to the date of judgment; 4) that the protectee's estate be reimbursed from the retitled certificates in the amount of $4,720.35, representing penalties incurred by Wanda for early withdrawal of the original certificates; 5) that the retitled certificate or certificates be subject to withdrawal pursuant to § 475.322, RSMo Supp.1984, for one-half the future expenditures incurred for the care, support and maintenance of Bessie L. Brown. All other issues tendered or tried by consent were found against the petitioners.

The cause was tried to the court. No findings of fact were requested and none were volunteered. We review this case in accordance with the provisions of Rule 73.01, as construed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Rule 73.01.1(b) requires us to consider all the controverted facts as found in accordance with the result.

I

The briefs raise one preliminary issue without resolving it and it must be addressed by the court preliminarily. Both parties suggest that former § 491.010, RSMo Supp.1984 (now repealed), was applicable to this case, but the point is not developed. Both Wanda and Harold Fulp testified on behalf of respondent Wanda, over petitioners' objection that both were incompetent witnesses under the provisions of the Dead Man Statute, § 491.010. Petitioners' objection was not only that § 491.010 applied, but that the so-called "administration proviso" applied. Respondents' testimony was received as a tender by question and answer as permitted by Rule 73.01(a)(1). ² It is necessary for us to consider the applicability of § 491.010 because in a court-tried case, an appellate court considers such of the evidence in the record as it deems admissible and excludes from consideration that evidence it deems inadmissible, Butcher v. McClintock, 373 S.W.2d 917, 922 (Mo.1963); Kinsella v. Gibson, 307 S.W.2d 491, 492 (Mo.1957), provided, of course, the evidence is in the record to consider. In this case, the trial court foresightedly permitted all the evidence it considered admissible for any purpose to be made of record.

The 1983 revision of the Dead Man Statute merely substituted several words for others; the word "insane" was amended to read "mentally incapacitated," and the words "executor or administrator" were amended to read "personal representative." Section 472.010(26), RSMo Supp.1983, defines personal representative to mean executor or administrator. The amendment of § 491.010 made no substantive change in the law.

When it was in existence, § 491.010 was considered to be a qualifying enactment in that it first removed the common-law disqualification of witnesses by reason of interest, and the statute was also considered a disqualifying statute explicitly recognizing and imposing disqualification under two provisos, usually described as the "transactions proviso" and the "administration proviso." The "transactions" proviso did not impose a general disqualification and did not make the surviving party an incompetent witness for all purposes. The witness was disqualified only to the extent that his testimony might be subject to question by the other party if living and in respect to the transactions between the witness and the party then dead or incompetent. Fellows v. Farmer, 379 S.W.2d 842, 849-50 (Mo.App.1964). The "administration" proviso applied to actions in which a personal representative (executor or administrator) was a party. It was limited to actions ex contractu, but when it applied, all testimony by the survivor was excluded except as to acts which occurred subsequent to the probate of the will or appointment of the personal representative. Flanagan v. DeLapp, 533 S.W.2d 592, 597 (Mo banc 1976); Fellows v. Farmer, 379 S.W.2d at 849.

As to Wanda Fulp's evidence, § 475.020, RSMo Supp.1984, in very general terms makes the provisions of the probate code applicable to guardianships and conservatorships. While this section might be construed to make the "administration proviso" applicable to an action to which a guardian or conservator is a party, such construction is not justified in view of the fact that the 1983 amendments to § 491.010 did not specifically include "guardian" or "conservator." A meticulous construction of former § 491.010 is in any case unnecessary for even if the total bar of the "administration proviso" is not applicable to Wanda Fulp's testimony, most of her evidence is inadmissible under the first, or "transactions proviso," as being subject to question or contradiction by Bess Brown if Bess were competent to testify. See again Fellows v. Farmer, 379 S.W.2d at 849-50.

Neither of the disqualifying provisos of former § 491.010 was efficient to bar the testimony of Harold Fulp. The fact that he was made a party respondent is of no consequence. The language of the first proviso disqualifies only the surviving party to the contract or cause of action in issue and on trial. Under the second proviso "the other party" has been read to mean "party to such contract or cause of action" as in the first proviso. Davis v. Robb, 10 S.W.2d 680, 682 (Mo.App.1928); Atkinson v. Hardy, 128 Mo.App. 349, 353, 107 S.W. 466, 467 (1908). Under the Dead Man statute, a witness was incompetent only when he was the surviving party to the contract or cause of action in issue and on trial. Being a party of record did not of itself disqualify him. McClure v. Clements, 161 Mo.App. 23, 25-27, 143 S.W. 82, 83 (1912). Harold Fulp was not a party to the transactions between his wife and Bess Brown concerning the disputed certificates of deposit and he was not disqualified by former § 491.010.

It is also abundantly clear that Harold Fulp was not disqualified by interest in the outcome of the action because his wife was a party, or because he stood to gain indirectly if his wife prevailed. Embry v. Martz' Estate, 377 S.W.2d 367, 371-72 (Mo.1964); Bick v. Mueller, 346 Mo. 746, 754, 142 S.W.2d 1021, 1024 (1940); Ragsdale v. Achuff, 324 Mo. 1159, 1173, 27 S.W.2d 6, 12 (1930); Vosburg v. Smith, 272 S.W.2d 297, 304 (Mo.App.1954). Harold Fulp's testimony was admissible and shall be considered on this appeal.

II

In essence, this case is a "joint bank account case." Bessie L. Brown, the incompetent, was born February 8, 1889. She married one Durvich Brown and they lived for many years on a farm near Pierce City, in Lawrence County. Bess and her husband had two children, but they died in infancy. About 1960, Durvich and Bess moved to Monett. They purchased a residence known and numbered as 2 Hillcrest Drive. Durvich died shortly after he and Bess moved to Monett. When Bess and her husband acquired their house in Monett, they became acquainted with Harold and Wanda Fulp, who lived "[t]hree doors up [the street]."

Bess took care of her own financial affairs until 1978 or 1979, at which time she would have been 89 or 90 years of age, and at age 90 she solicited Merritt's assistance. At that time Bess did her banking at Pierce City. Bess had invested her cash in "a bunch of 'H' bonds and stuff." Merritt talked to the banker (in Pierce City) and discovered that the same investment in certificates of deposit would yield about 14 to 15 percent interest. Upon Merritt's advice, Bess' money was reinvested in certificates of deposit. As a matter of convenience, the certificates were made payable to Bess and Harold Merritt, and Merritt was given access to Bess' bank box. This arrangement permitted Merritt to renew the certificates when they came due, and otherwise to attend to Bess' banking affairs. Merritt resided in ...