Estate of McCahon, In re, 14767

• Court: Missouri Court of Appeals
• Writing for the Court: GREENE; CROW, C.J., and HOLSTEIN
• Citation: Estate of McCahon, In re, 729 S.W.2d 67 (Mo. App. 1987)
• Decision Date: 06 May 1987
• Docket Number: No. 14767,14767
• Parties: In re the ESTATE OF Woodburn Henry McCAHON, Deceased. An Thi McCAHON, Appellant, v. Esther HANNA, Personal Representative of the Estate of Woodburn Henry McCahon, Scott Tinsley, Guardian Ad Litem for Chew Ling McCahon, Sam Woodburn McCahon, Rose Marie Miller, and Wilma Sue Conover, Respondents.

Page 67

729 S.W.2d 67

In re the ESTATE OF Woodburn Henry McCAHON, Deceased An Thi McCAHON, Appellant, v. Esther HANNA, Personal Representative of the Estate of Woodburn Henry McCahon, Scott Tinsley, Guardian Ad Litem for Chew Ling McCahon, Sam Woodburn McCahon, Rose Marie Miller and Wilma Sue Conover, Respondents.

No. 14767.

Missouri Court of Appeals,

Southern District,

Division One.

May 6, 1987.

Kevin Hays Dunaway, Neale, Newman, Bradshaw & Freeman, Springfield, for appellant.

Richard E. Dorr, Dorr & Baird, P.C., Springfield, for respondent Wilma Sue Conover.

GREENE, Presiding Judge.

Appellant, An Thi McCahon, appeals from that portion of the trial court's decree adjudicating Wilma Sue Conover to be the natural daughter of Woodburn Henry McCahon, deceased. An Thi contends, among other things, that such conclusion is not supported by substantial evidence, and is, therefore, violative of the mandate of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We agree, and reverse and remand.

Woodburn McCahon died on November 30, 1984. He had been married three times, but was single at the time of death. His marriage to Eulah Marie McCahon produced two acknowledged children, Rose Marie McCahon, now Miller, and Sam Woodburn McCahon. Chew Ling McCahon, a minor child, was born of Woodburn's marriage to a Taiwanese female whose name is not disclosed in the record and whose whereabouts are unknown. Mary Ann McCahon and Betty Jean McCahon, both minors at time of trial, were born of his marriage to An Thi.

The marriage of Woodburn and An Thi was dissolved on October 19, 1984. The decree provided, among other things, that the farm home of the parties and certain personal property were marital property and were incapable of being divided in kind. It ordered that such property be sold at public auction and the proceeds, after the expenses of sale and certain debts of the parties were deducted, were to be divided equally between Woodburn and An Thi. The date of the sale was set for November 30, 1984.

On the day of the scheduled sale, before the sale commenced, the house was totally destroyed by fire. Woodburn perished in the blaze. The home and its contents were insured against loss by fire for the sums of $20,000 on the house and $10,000 on the contents. Woodburn was the payee under the terms of the policy. In addition, Woodburn had $30,000 worth of life insurance, with the proceeds payable to his surviving children.

An estate was opened in the probate court of Webster County, with Esther Hanna being appointed as personal representative. Various claims were filed against the estate, some of which claimed a portion of the insurance proceeds. An Thi contended she was entitled to one-half of the fire insurance money because of the terms of the dissolution decree, and that her children were entitled to their proportionate share of the life insurance money. Other claimants argued that the fire insurance proceeds should go to the estate of Woodburn, rather than An Thi. Farm Bureau Town and Country Insurance Company of Missouri brought an action against An Thi and other claimants seeking to determine the ownership of the fire insurance funds. Wilma Sue Conover also petitioned to be declared a natural child of Woodburn and, as such, to be entitled to a child's share of Woodburn's estate.

In an attempt to settle and compromise their differences, the individuals involved, on September 12, 1985, entered into a settlement agreement. Parties to the agreement were Esther Hanna, as personal representative of Woodburn's estate, An Thi McCahon, individually and as parent and natural guardian of her two minor children, Mary Ann McCahon and Betty Jean McCahon, Chew Ling McCahon, who could not be located, by her court appointed guardian, Scott Tinsley, and individuals Sam Woodburn McCahon, Rose Marie Miller, and Wilma Conover. The agreement would have divided the proceeds of the fire insurance policy on the following basis: $20,000 to the estate, and $10,000 to An Thi. The agreement also originally provided that the estate pay to each of the adult children of Woodburn who were named in the agreement as Sam Woodburn McCahon, Rose Marie Miller, and Wilma Conover, the sum of $5,000, and that each of the six children of Woodburn (adult and minors) receive equal shares of the proceeds of the life insurance policies. Since Chew Ling could not be located, her share was to be held in trust, with the proviso that if she was not found by December 31, 1986, her share would be distributed to the other children under a formula set out in the agreement. An Thi objected to the use of the term "adult children," as that term was applied to Wilma Conover, and refused to sign the agreement unless the words "adult children" be changed to the word "beneficiaries" wherever that term appeared in the agreement.

This was done, and the agreement was signed by Esther Hanna, Scott Tinsley, Sam McCahon, Wilma Conover, Rose Miller, and An Thi McCahon, individually and in her capacity as guardian of her two minor children. As amended, the agreement provided for the dismissal of the various claims the parties had against the estate. The agreement was then presented to the judge having jurisdiction over the various proceedings, which had been consolidated into one action.

A hearing was held on September 12, 1985. The record of the hearing, as it was deemed, is meager. There was no testimony presented and no documents offered on the record for...