Estate of Froman, Matter of

• Decision Date: 04 February 1991
• Docket Number: No. 16841,16841
• Parties: In the Matter of the ESTATE OF William M. FROMAN, Deceased.
• Court: Missouri Court of Appeals

Page 176

803 S.W.2d 176

In the Matter of the ESTATE OF William M. FROMAN, Deceased.

No. 16841.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 4, 1991.

Janelle Calvert House, Gainesville, for appellant.

Lane H. Strother, The Strother Firm, Mountain Home, Ark., for respondent.

SHRUM, Judge.

This case involves a transfer of money in fraud of the marital rights of the surviving spouse. Section 474.150, RSMo 1986. Robert and Lola Johnston appeal from a judgment entered against them in favor of Vinita Froman, the surviving spouse of William M. Froman and personal representative of his estate. We affirm the judgment.

PROCEDURE BELOW

This litigation began as a claim against the estate of the decedent filed by Kathryn Feist, who sought possession of a Yamaha four-wheel drive vehicle, which she alleged the decedent had given her, and $5,000.00 "for care of decedent and services rendered to decedent from October 1986 to August 1987...." In her capacity as personal representative, Mrs. Froman responded to Ms. Feist's claim and subsequently brought an action to discover assets, naming Ms. Feist and the Johnstons as defendants. Later, Mrs. Froman, as surviving spouse of the decedent and as personal representative of his estate, filed an amended petition, directed solely against the Johnstons, alleging they owed her $29,000.00, an amount she claimed the decedent transferred to Robert Johnston.

The claims of Ms. Feist against the estate and Mrs. Froman against Ms. Feist and the Johnstons were tried together. The trial court denied Ms. Feist's claim, and she is not a party to this appeal. The trial court awarded Mrs. Froman judgment of $29,000.00 plus interest against the Johnstons and imposed an equitable lien against certain real estate which the Johnstons had purchased with a portion of the money received from the decedent. The court appointed a commissioner to sell the real estate if the judgment was not satisfied within 30 days.

FACTS

The Fromans were married July 2, 1967. In 1972, they signed reciprocal wills and a postnuptial agreement which provided they would not "give away any of their property during their marriage...." The Fromans did not live together after March 29, 1986. The decedent's 1972 will was in effect when he died November 12, 1987. Before he died, the decedent told Mrs. Froman he was going to draw approximately $26,600.00 out of an account with Edward D. Jones & Co. and was "going to spend it."

Following her husband's death, Mrs. Froman began to investigate his affairs. She found that a $26,615.79 check, issued by During her investigation, Mrs. Froman asked Robert Johnston about the $29,000.00. She testified he replied, "[T]hat was between him and God...." She said he told her, "If you knew what became of the money; it would only hurt you and you ... don't need to be hurt any more." Mrs. Froman found 12 unexplained monthly deposits of $266.00 and one for $133.00 into the decedent's bank account beginning October 1986. She later learned the deposits were checks from the Johnstons.

                Edward D. Jones & Co. on September 30, 1986, payable to the decedent, had been endorsed in blank by him and subsequently endorsed "Bob Johnston."   A $2,384.21 check, dated October 4, 1986, drawn on the decedent's bank account, signed by the decedent, and payable to "Bob Johnston," had been cashed.  Mrs. Froman testified she had seen a promissory note, signed by the Johnstons, in the amount of $2,384.21, but "[i]t disappeared before I got down there when he passed away."
                

Robert Johnston testified he received two checks from the decedent totalling $29,000.00. He used $20,000.00 of the money to pay for 9.75 acres which had an unfinished house on it and most of the remainder of the money to finish and remodel the house. ¹ Johnston said the decedent refused to take a mortgage from him on the property, even though he offered one. Johnston was the minister at a church attended by the decedent. At trial, when asked why the decedent gave him the money, Johnston replied:

Because he wanted to, I feel.... He wanted to help me out. He wanted me to go into full-time ministry, and he thought I had a message. And he said I need to be preaching it.

Asked what he gave the decedent in return for the $29,000.00, Johnston said, "All the love I knew how." Johnston also testified he was to pay the decedent "so much a month, every month, as long as he lived." Johnston made monthly payments until decedent's death. A few of the early checks were marked "payment and interest."

Following examination by the attorneys, the court questioned Robert Johnston about his arrangement with the decedent. Johnston said his agreement was that he was to pay the decedent $266.00 monthly so long as the decedent lived. When the decedent died, Johnston testified, his payment obligation would be finished except that he was to "say some good words over" the decedent. Johnston said it was his understanding the decedent meant to do him a favor and the transfer of money was not a business transaction.

The decedent's health was the subject of much trial testimony. When Robert Johnston received the money, he knew the decedent was married and had a serious illness. However, Johnston said when he received the money he had no idea the decedent would die within a little more than a year. Evidence at trial was that the decedent was diagnosed as having kidney failure in 1984 and went on dialysis in the fall of 1985. Mrs. Froman said that during the last year of his life her husband was confused and she questioned whether he knew what he was doing. Ms. Feist, the original claimant, testified, "When he was in the hospital ... he asked me if I would accept his inheritance at his death if he would sign it over to me. And I said, 'We're not going to talk about that now,' because he was too ill." Ms. Feist said the decedent's health was bad during the entire time she worked for him. "[H]e finally got so bad that I did the cooking for him and even carried meals to him." She did laundry for him and frequently transported him for medical care.

STANDARD OF REVIEW

We will sustain the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law.

Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In determining the sufficiency of the evidence in a court-tried case, an appellate court accepts as true the evidence and reasonable inferences from the evidence that are favorable to the trial court's decree and judgment and disregards all contrary evidence. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). Where, as here, no findings of fact have been requested and none made, all controverted facts are considered found in accordance with the result reached. Misdary v. Misdary, 737 S.W.2d 476, 479 (Mo.App.1987).

ISSUES ON APPEAL

The parties' arguments revolve around whether Mrs. Froman may, pursuant to § 474.150, RSMo 1986, recover the money transferred by the decedent to the Johnstons. The Johnstons raise the following points on appeal:

I. The trial court erred in its ruling for wife since the transfer to [the Johnstons] was a valid and enforceable agreement and not a gratuity.

II. The trial court erred in its ruling for wife since wife failed to sustain her burden of proof on the elements of fraudulent intent.

Reproduction of the Johnstons' points on appeal in this opinion should not be taken as an endorsement of their compliance with Rule 84.04(d) or Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978). Because of the considerable overlap in the points on appeal, we consider them together.

ANALYSIS AND DECISION

Section 474.150 provides in pertinent part:

Any gift made by a person ... in fraud of the marital rights of his surviving spouse to share in his estate, shall, at the election of the surviving spouse, be treated as a testamentary disposition and may be recovered from the donee and persons taking from him without adequate consideration and applied to the payment of the spouse's share....

Section 474.150, RSMo 1986, is a codification of the common law action of fraud of marital rights. Estate of Bernskoetter, 693 S.W.2d 249, 252 (Mo.App.1985). To determine if fraud of marital rights occurred, the court examines the intent of the transferring spouse. Id. at 252; Matter of Estate of LaGarce, 532 S.W.2d 511, 515 (Mo.App.1975). The burden of proving the decedent's fraudulent intent in transferring personal property is on the surviving spouse. Id. In determining the decedent's intent, the court may consider and weigh all the facts and circumstances in the case. Id.

Missouri courts have recognized various factors as indicative of an intent to defraud a spouse, including (a) a lack of consideration for the transfer, (b) retention of control by transferor-spouse over the asset in question, (c) a transfer of disproportionately high value when compared to transferor's total estate, (d) a lack of open and frank disclosure by the transferor-spouse to the surviving spouse about the transfer, and (e) contemplation by the transferor-spouse of his imminent death. Nelson v. Nelson, 512 S.W.2d 455, 459-63 (Mo.App.1974). Unlike a common law action in fraud, in which each element must be proven, see, e.g., Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo. banc 1988), it is not essential in an action under § 474.150 that every indicator discussed in Nelson be proven to sustain a finding of fraudulent intent. As the court in Estate of LaGarce points out, the indicators in Nelson serve as "guidelines" to a court faced with determining the intent of a deceased person. 532 S.W.2d at 515.

First we examine whether there was consideration for the transfer. The Johnstons argue that their $266.00 monthly payments to the decedent during his lifetime and the agreement to conduct funeral services for him constitute consideration and the $29,000.00 was...