Estate of Davis, 70116

• Decision Date: 29 July 1997
• Docket Number: No. 70116,70116
• Citation: 954 S.W.2d 374
• Court: Missouri Court of Appeals
• Parties: In the ESTATE OF Violet E. DAVIS, an incapacitated and/or disabled person. Andrew J. KOHM, et al., Plaintiff-Appellant, v. Blane D. KOHM, et al., Respondent-Respondent.

Page 374

954 S.W.2d 374

In the ESTATE OF Violet E. DAVIS, an incapacitated and/or disabled person Andrew J. KOHM, et al., Plaintiff-Appellant, v. Blane D. KOHM, et al., Respondent-Respondent.

No. 70116.

Missouri Court of Appeals,

Eastern District,

Southern Division.

July 29, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 22, 1997.

Application to Transfer Denied

Nov. 25, 1997.

Robert K. Angstead, Newman, Comley & Ruth, P.C., Jefferson City, for plaintiff-appellant.

David G. Beeson & Scott A. Kipke, Buerkle, Beeson, Ludwig, Wilson & Jackson, L.C., Jackson, for respondent John T. Bert.

Thomas L. Hoeh, Perryville, for respondent Blane D. Kohm.

KAROHL, Judge.

The subject of the dispute in this case is jointly owned assets of plaintiffs' aunt, Violet E. Davis (Davis), and defendant Blane D. Kohm (Kohm). In a court tried case the judgment favored defendant Kohm. The litigation began in November 1993 when two nieces and two nephews, interested in the guardianship estate of Davis "as intestate heirs" filed a petition to remove Kohm as guardian, and John T. Bert (Bert) as public-administrator-conservator for Davis. Four other counts were alleged to obtain the return of assets jointly owned by Davis and Kohm. Davis died March 18, 1996 during this appeal. Neither Davis nor her probate estate were made parties in the trial court. Plaintiffs-appellants filed a Motion to Substitute for Davis which we denied. The parties remain, two nieces and two nephews, as plaintiffs, and the guardian and the conservator of Davis, a disabled person, in their representative capacities, as defendants. They were not sued individually.

In a court tried case, we affirm the decree or judgment of the trial court upon factual matters unless their is no substantial evidence to support it or it is against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The evidence which supports the judgment is as follows.

In October of 1988, Davis, then age 83, was hospitalized with congestive heart failure. Davis' physician, Dr. Limpiphiphatn, released her upon the condition that someone would ensure she would take her medication. Her grand-nephew, Kohm, volunteered to do so because he liked Davis and "nobody seemed to want to do it." Davis was released from the hospital on October 18, 1988. Kohm suggested to Davis that she might consider getting a power of attorney "[b]ecause of her health, if she got sick again, somebody would have to handle her affairs for her." She asked him "Who?" and Kohm responded, "Well, that's your choice." Davis had Francis Toohey, a licensed attorney, draft a power of attorney. He explained the purpose and the effects of the power of attorney to both Davis and Kohm. On October 28, 1988, Davis granted Kohm her power of attorney.

Over the next month, Davis retitled most of her assets in her name with Kohm, as joint tenants with right of survivorship. On November 23, 1992, the probate court appointed Kohm, as guardian, and Bert, as conservator for Davis. By November of 1992, the value of all the assets that were jointly owned by Davis and Kohm was approximately $200,000. Kohm never used his power of attorney to transfer "one penny's worth" of Davis' assets to a joint tenancy. Davis personally endorsed each of her assets that were transferred to joint accounts.

When Kohm began to assist Davis, he noticed that some of the beneficiaries named in Davis' will were dead. He suggested to her she might consider a new will. Davis' brothers and sisters; who were beneficiaries under the old will, were dead. Around November 15, 1988 Davis destroyed her old will and executed a new one. No copy of the old will was produced at trial. ¹ Kohm testified that under the old will the nieces and nephews and two grand-nephews were to receive $500 each.

The new will was also not produced at trial. A copy of it has been furnished to this court as an attachment to Appellants' Motion to Substitute Parties. Paragraph 4 directs:

I give and bequeath a sum not to exceed $600.00 from the proceeds of the sale of personal property, savings bonds and savings equally to the following: one share to my nephew, Donald M. Cissell; one share to my niece, Donna Jean Rinklin; one share to my nephew, Russell W. Cissell; one share to my niece, Sandra Cissell; one share to my niece, Georgia Lee Rawlings; one share to my grand-nephew, Sidney R Rawlings; one share to my grand-nephew, Michael S. Rawlings; one share to my niece, Nina Ruth Parres; one share to my nephew, Andrew J. Kohm, Jr.; one share to Zita M. Marshall; one share to be shared equally by Mr. and Mrs. Julian Breland; one share Geneva Terrell....

The bequests for plaintiffs were larger in the new will than in the former will. Paragraph 4 also contained an anti-lapse clause.

Under the new will Davis bequeathed to Kohm her residence, an antique desk, coffee table, lamp table, a "Baldor Electric Grinder", and the residue of her property. She omitted two nephews from the new will, Paul, Sr. ² and Mike Cissell. She explained and detailed rational reasons for omitting them. Her explanations tend to support a finding she was mentally alert.

Four years later, Kohm was concerned for Davis' safety if she continued to live alone. On October 19, 1992, Kohm filed a petition seeking the appointment of a guardian and conservator for Davis. Davis went into the nursing home before the competency hearing. Attorney Toohey represented Kohm at the competency hearing. Prior to October 16, 1992 Davis lived alone, cooked her own meals, did her own laundry and prepared shopping lists.

In his petition, Kohm estimated the value of Davis' real property to be $30,000 and her personal property to be $1,200. At the competency hearing on November 23, 1992 Kohm testified it was his understanding that all the assets he held jointly with Davis actually belonged to Davis. He explained his failure to list the value of the jointly held assets was because he misunderstood his attorney's instructions. It was Kohm's intention that after Davis died, he would pay her bills and funeral expenses from the joint accounts. What remained of the jointly held assets would go to the persons named in the new will. He also testified he would not oppose a freeze order on all of the jointly titled assets until they could be retitled into Davis' sole name. The probate court found, "[t]here are substantial personal assets which were not even listed as joint property on the 'Application for Letters of Conservatorship / Guardianship' which are in fact the property of the ward / protectee although titled jointly with Blane Kohm." It ordered "that any assets on which the ward / protectee is listed as a joint owner ... are hereby ordered frozen until further order of the Court ..." It also ordered Kohm be appointed Davis' guardian and Bert, Public Administrator, be appointed conservator of Davis' estate.

Two or three days after the guardianship hearing, Toohey told Kohm, "with [Davis] putting [his] name on the accounts, that that gave [him] an ownership right." Kohm told Toohey "if I'd have known that, I wouldn't have agreed in court to retitle everything."

Toohey represented Bert while he was serving as conservator of Davis' estate. Bert was unaware that Toohey had previously represented Kohm, Kohm's mother and Davis. He also did not know how Davis' assets came to be jointly held with Kohm. Bert selected Toohey to represent him because "whatever attorney is handling the estate of the people I take over, I try to stay with that attorney because he's familiar with the case."

Bert described his duties as conservator as taking care of the financial needs of an individual and any necessary legal problems that come up regarding guardianship. Throughout his service as conservator, Bert completed all work necessary to resolve the discovery of assets of Davis' estate. On February 9, 1993 Bert filed the "INVENTORY AND APPRAISEMENT" of Davis' estate. He contacted Kohm and requested the jointly held assets that Kohm had in his possession. Bert took possession of all of Davis' assets, including those jointly held with Kohm. To the best of Bert's knowledge, Kohm cooperated fully in making known to him all of the jointly held assets. Bert testified that he had continued to pay, on a monthly basis, Davis' nursing home and medical bills. He also sold Davis' house, pursuant to a court order and all of the personal belongings within the house.

Plaintiffs assert four points on appeal. They have not appealed the judgment denying their request to remove Kohm and Bert in their official duties. In their first point, they argue the trial court erred in refusing to impose a constructive trust over all assets jointly titled in Davis' and Kohm's names. They argue the overwhelming weight of uncontradicted evidence revealed Kohm committed a constructive fraud upon Davis by: (1) unduly influencing Davis; (2) breaching a confidential and fiduciary relationship; and, (3) being unjustly enriched. In a related argument, plaintiffs argue the trial court erred in granting judgment to Kohm and Bert on the basis they failed to meet their burden of proving Davis' incompetence prior to November 23, 1992.

The issue of plaintiffs' standing "as heirs" was not contested in the trial court. No motion was filed here to contest standing and the parties did not brief or argue the issue of standing. Under Section 472.160.1(14) RSMo 1994, a provision of the probate code, interested persons aggrieved by judgments are entitled to appeal final orders or judgments of the probate court. The probate code defines "interested persons" as:

heirs, devisees, spouses, creditors or any others having a property right or claim against the estate of a decedent being administered and includes children of a protectee who may have a property right or claim against or an interest in the estate of a protectee. Section 472.010(15) RSMo 1994. (Our emphasis)

The...