Estate of Dawes, In re

• Decision Date: 06 December 1994
• Docket Number: No. 19015,19015
• Citation: 891 S.W.2d 510
• Parties: In re ESTATE OF Lewis Franklin DAWES, deceased. Ronnie Lewis DAWES, William G. Dawes, and Goldie Diehl, Plaintiffs-Respondents, v. Dennis Ray DAWES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 510

891 S.W.2d 510

In re ESTATE OF Lewis Franklin DAWES, deceased.

Ronnie Lewis DAWES, William G. Dawes, and Goldie Diehl, Plaintiffs-Respondents, v. Dennis Ray DAWES, Defendant-Appellant.

No. 19015.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 6, 1994.

Motion for Rehearing or Transfer

Denied Dec. 28, 1994.

Application to Transfer Denied

Feb. 21, 1995.

Christina L. (Mell) Kime, L. Dwayne Hackworth, Piedmont, for defendant-appellant.

G.H. Terando, Wilhoit, Edmundson, Terando & Hopkins, Poplar Bluff, for plaintiffs-respondents.

SHRUM, Judge.

Defendant appeals from the trial court's order that he deliver to the public administrator certain assets previously owned by Defendant's now deceased father. We affirm.

FACTS

Lewis Franklin Dawes (Decedent) died August 31, 1992. Plaintiffs and Defendant are his four surviving children. In his will, Decedent named Defendant as personal representative. On November 10, 1992, Defendant filed an inventory that listed no assets other than furniture, household goods, and wearing apparel with a total value of $5,000.

On December 3, 1992, Plaintiffs filed their "Petition for Discovery of Assets," the caption of which identifies as defendant "Dennis Ray Dawes, Personal Representative of the Estate of Lewis Franklin Dawes, Deceased." In the petition Plaintiffs alleged, among other things, that Defendant had omitted estate assets from the inventory and that,

"6. [Defendant] entered into various agreements with the Decedent, prior to the Decedent's death, under which he was given and assumed, and agreed to assume, certain fiduciary responsibilities in order to cause the assets of the Decedent to be equally divided among [Plaintiffs] and [Defendant], per capita. [Defendant] now holds and claims such property, real and personal, as his own withholding it from [Plaintiffs] and the administration of the Decedent's Estate."

After receiving evidence on July 1, 1993, and briefs from the parties, the trial court ordered Defendant's removal as personal representative of the estate; appointed the public administrator of Ripley County as successor personal representative; ordered the public administrator to determine if there were other assets to be included in the estate, to "proceed as necessary to collect and administer such assets," and to file an amended inventory; and ordered Defendant to deliver to the public administrator certain specified property as well as any other assets of the estate in his possession. With its judgment, the court issued an opinion in which it stated the grounds for its decision and included findings of fact. See Rule 73.01(a)(3). Employing our own outlining scheme, we summarize the court's statement of grounds and findings:

(1) Disputed Assets. The court found that, prior to his death, Decedent arranged to transfer "the preponderant bulk" of his assets to Defendant, specifically:

(a) Real Estate. On January 31, 1992, Decedent executed a deed by which he conveyed two tracts of real estate to Defendant. The court found that the deed conformed to Chapter 461, RSMo Supp.1989, Missouri's Nonprobate Transfers Law, and that the transfer had not been revoked or changed prior to Decedent's death. Thus, the court concluded, title to the realty passed to Defendant upon the death of Decedent and was not an asset of the estate.

(b) Bank Account. At an unspecified date, Decedent established a bank account in his name and Defendant's name, the balance of which was more than $29,000 as of the date of Decedent's death. ¹ The court concluded that, pursuant to § 362.470, RSMo 1986, the account was a joint tenancy that became the "sole property" of Defendant upon the death of Decedent and was not an asset of the estate.

(c) Promissory Note. On October 29, 1991, Dusty Lee Holland and Vivian Aden Holland executed a promissory note, in the amount of $13,750 and secured by a deed of trust on real estate, in which they agreed to pay $400 a month to Decedent and, on his death, to Defendant. The court concluded that the note became the "separate property" of Defendant upon the death of Decedent and was not an asset of the estate.

(d) Motor Vehicle. A certificate of ownership to a 1986 Chevrolet automobile, issued February 13, 1992, names as owner "Dawes Lewis TOD Dawes Dennis." The court concluded, in effect, that title to the automobile was transferred to Defendant upon the death of Decedent. See § 301.681, RSMo Supp.1987. ²

(e) Other Assets. The court found that various household and shop items, which were assets of the estate, were sold at auction on December 3, 1992. The court concluded that the proceeds of the sale were assets of the estate. The court found that, prior to his death, Decedent transferred to Defendant other items of personal property, including firearms and an air compressor, that apparently were not sold at auction.

(2) The court found that Decedent intended that Defendant take title to and possession of the disputed assets "for the equal benefit of his sister and his brothers, as well as himself...."

(3) The court found that Decedent made and signed a list of 13 items at pages 19, 21, and 23 of a ledger book and that a fair reading of those 13 items "clearly indicates [they] were testamentary in nature."

(4) The court found that Defendant "knew of and accepted a fiduciary responsibility from his father when the items, or deeds or titles to [the disputed assets] were delivered to him, and that the delivery of those items, creation of the bank account, inclusion of [Defendant's] name on the deed, deed of trust, promissory note and vehicle title caused a trust to be imposed on the [disputed assets] for the benefit of [Plaintiffs and Defendant]."

(5) The court stated that it did not find that the execution of the real estate deed and the Holland note and deed of trust and the creation of the bank account were the result of fraud, duress, or undue influence on the part of Defendant; however, the court found that Decedent and Defendant "agreed to the creation of a trust for the equal benefit of all the children of decedent, and the instruments were created in furtherance of the intended trust."

(6) Because of "the actions of the decedent in creation of the trust" the court ordered "the costs of this action be assessed to the estate of the decedent...." ³

We now review evidence that supports the trial court's findings as summarized above and evidence relevant to Defendant's points on appeal. Plaintiffs' first witness was Defendant who said the $5,000 value he placed on the inventory was an estimate. Defendant testified the property described on the inventory was what he sold at the auction; however, the record is silent about the amount and disposition of the sale proceeds.

Defendant testified about various items of personal property Decedent had given him before he died, none of which was included in the inventory or sold at the auction. Defendant was uncertain whether his father had given him these items "to keep or just for safekeeping."

Decedent had a burial insurance policy, the proceeds of which were paid to the funeral home. The policy was insufficient to cover the cost of the funeral, and the balance due had not been paid. Defendant admitted he had not investigated whether his father had other insurance policies, nor had he checked Decedent's tax returns to learn about any investments he might have. In short, he admitted, he "didn't take any steps" to gather all of Decedent's property.

Asked about the circumstances under which he was named grantee of the two tracts of land, joint tenant of the bank account, payee on the Holland note, and beneficiary under the Holland deed of trust, Defendant testified, "I had no idea why he [Decedent] set them up the way he set them." When Plaintiffs' counsel asked Defendant, "In fact, he told you on a number of occasions why he was doing it, didn't he, Mr. Dawes?," Defendant replied, "He said he didn't want things to go through probate."

Asked if Decedent "told you what you were supposed to do with the property he was putting in your name," Defendant answered, "No, he didn't." Plaintiffs' attorney then asked, "In fact, on one occasion didn't he call you and Ronnie [Plaintiff Ronnie Dawes] to his home to tell you what he had done with this deed, and didn't he tell you what you were supposed to do at his death with the property [that] was placed in your name?" Defendant answered, "I don't recall," although, he added, "I remember being there at his house."

Plaintiffs' counsel then showed Defendant Plaintiffs' Exhibit 5, a ledger book, and asked:

Q. Is that your dad's ledger book?

A. There was a ledger book up there.

Q. And you were shown it, weren't you?

A. You showed me a book at deposition. Yes, you did.

Q. He showed you a book when you and Ronnie went up to talk with him. He called you up there, didn't he?

A. Yes, he did.

Q. Yes, he did. He also showed you a will and he showed you this deed that's been previously marked, didn't he?

A. Yeah, but I didn't read it.

Q. Well, you told me earlier--

A. I glanced at it.

Q. --that you had thumbed through that. Do you recall telling me that?

A. Yes, I did. I told you that.

Q. And that was the ledger book that was kept by the magazine rack, wasn't it?

A. Yes, it was.

Q. In his house?

A. Uh-huh.

Plaintiffs' counsel directed Defendant's attention to page 19 of the ledger. Defendant said he did not see Decedent write any of the entries on page 19. Asked if he knew his father's handwriting, he responded, "I think so. Yes." Asked if the page 19 entries to which Plaintiffs' counsel referred were in Decedent's handwriting, Defendant said, "As far as I know." Defendant then read into the record several entries from page 19. We quote from the ledger:

"(1) 10-29-91 Bal Due from sale of the Caswell House of 13750 with Int. of 10% first payment due $400.00 Jan 8, 1992 Then $400.00 ea month till paid in full.

Dennis Dawes is on Deed...