Gilliam v. Hopkins

Decision Date08 October 1971
Docket NumberNos. 9029,s. 9029
Citation472 S.W.2d 436
PartiesBuford GILLIAM and Thelma Gilliam, Plaintiffs-Respondents, v. Leona HOPKINS, Individually and as Guardian of the Estate of Essie Yount, Incompetent, et al., Defendants-Appellants. to 9031.
CourtMissouri Court of Appeals

G. C. Beckham, Steelville, for defendant-appellant Leona Hopkins.

Raymond R. Roberts, Roberts & Roberts, Farmington, for defendant-appellant Ogie Selinger.

J. Richard Roberts, Jack C. Stewart, Dearing, Richeson, roberts & Wegmann, Hillsboro, for defendant-appellant Travelers Indemnity Co.

Marvin L. Dinger, Ironton, for plaintiffs-respondents.

HOGAN, Judge.

This is an action to recover funds converted by defendants Leona Hopkins and Ogie Selinger in their respective representative capacities to the use and benefit of the Estate of Essie Yount, Incompetent, and the Estate of Essie Yount, Deceased. Trial to the court has resulted in a judgment adverse to the defendants and their surety. The defendants have appealed separately.

The appeals and their consequent problems involve actions taken and judgments rendered in three courts over a period of nearly five years, and come to us against a factual background which we must state in some detail. On May 15, 1965, defendant Leona Hopkins was appointed guardian of the person and estate of Mrs. Essie Yount, her mother, upon adjudication by the Probate Court of Iron County that Mrs. Yount was incompetent and incapable of managing her estate. An inventory and appraisement was filed on August 20, 1965, and one of the assets listed was an 85-acre tract of land located in Washington County. The land was appraised at $2,000 and constituted the estate's principal asset. On August 20, 1965, Mrs. Hopkins petitioned the probate court for an order to sell the inventoried realty to provide funds for the ward's support. The court directed that the property be sold at private sale for cash, and on August 30, 1965, the guardian reported the sale of the property to plaintiffs for the sum of $4,875. On September 11, 1965, the probate court confirmed the sale and ordered the execution of a deed, and on that same day the guardian filed a bond with defendant Travelers Indemnity Company as surety in the sum of $5,000. It is stipulated that also on this same day, September 11, 1965, Mrs. Hopkins delivered a guardian's deed to the plaintiffs, conveying the property described in the inventory and appraisement.

Plaintiffs presented their deed for recordation in Washington County on September 20, 1965, only to be informed that on July 10 a warranty deed conveying the same property to one Donald Bennie Moses had already been filed and recorded. The warranty deed had been executed on April 24, 1965, by Mrs. Yount. Plaintiffs took the matter up with Mrs. Hopkins and her attorney, and, according to plaintiff Buford Gilliam, Mrs, Hopkins' attorney 'said he would bust the deed.' Plaintiffs said they would rather have their money back, and it was their evidence that Mrs. Hopkins told them they would either get a 'good deed or (their) money back.' The plaintiffs did not consider Mr. Hopkins' assurances sufficient, and on October 21, 1965, they filed suit against Mrs. Hopkins in the circuit court, alleging in substance that she was guardian of Mrs. Yount's estate, that the property in question had been listed as an asset of the estate, that Mrs. Hopkins had 'represented to plaintiffs that her charge (sic) was siezed (sic) of an indefeasible estate in fee in said property * * * and that the same was free and clear of any encumbrance.' Plaintiffs further recited the delivery of the guardian's deed, payment of the sum of $4,875 to defendant as guardian and payment of $250 to Trainer Realty 'as commission,' the existence of the Moses deed, and then alleged that payment had been made 'relying upon Defendant's representation that she had a good title to said property, where in truth and fact she did not. * * *' Plaintiffs further alleged demand for the sum of $5,125, and defendant's refusal to return the amount paid. Service was obtained on Mrs. Hopkins on October 21, and on the same day a copy of the petition and writ of summons was filed in the probate court.

The records of the probate court 1 indicate that Mrs. Yount had, in fact, died in St. Louis on October 21. Thereafter, on October 26, Mrs. Hopkins filed a petition for additional allowance for herself and her attorneys, stating that she had arranged for the burial of her ward. Mrs. Hopkins also filed a notice of the death of her ward, stating that she herewith filed her final settlement and requested the appointment of 'an Administrator * * * to whom she can give notice thereof.'

The 'final' settlement filed by the guardian showed debits in the amount of $5,226 and credits (disbursements) in the amount of $103.49, including a $35 bond premium. This settlement was filed on October 26, 1965. Two days later Mrs. Hopkins petitioned the probate court for letters of administration. That court refused the application, noting that Mrs. Hopkins was 'involved in litigation in the Circuit Court of Iron County evolving from sale of real estate during her Guardianship.' On November 23, 1965, the court appointed defendant Ogie Selinger as administrator of the estate, and fixed the amount of his bond at $5,000. On November 30, 1965, Mrs. Hopkins filed a 'final report' as guardian, stating that after the payment of fees authorized by an order dated October 26, 1965, there remained a balance of $4,822.51 in the estate, which sum she had 'this day paid to Ogie Selinger.' The vouchers filed with this report show that Mrs. Hopkins paid $200 to herself for support and maintenance of her ward and $100 to her attorneys. Mr. Sellinger's receipt for the sum of $4,822.51 was also filed. On December 2, 1965, the probate court entered an order reciting that Mrs. Hopkins had filed the final receipts 'of herself and her attorney,' and also the receipt from Mr. Selinger, '* * * and the said Guardian and her seurty (sic) are hereby discharged and released.' As indicated, the parties have stipulated that the whole of the probate file is before us; it is wholly barren of any indication that Mr. Selinger was given notice of the guardian's 'final report' of November 30, 1965, or that he waived such notice, or that he appeared when the court received the final report and entered its order of December 2, 1965, purporting to discharge Mrs. Hopkins and her surety. Nevertheless, on December 2, defendant Selinger filed an administrator's bond in the probate court, with defendant Travelers Indemnity as surety, and thereupon entered into the performance of his duties as administrator. Defendant Selinger immediately filed several pleadings in the circuit court. A discussion of these pleadings is unnecessary, but it is worthy of note that he filed a petition to intervene in this case as a defendant, and that copies of the pleadings he propared and filed in the circuit court were also filed in the probate court.

In addition to the action we are now reviewing, plaintiffs in this action filed a suit in the Circuit Court of Washington County, where the land is located, seeking to set aside the deed to Mr. Moses and to have the title quieted in them as purchasers at the guardian's sale. It is not clear from the record when this suit was filed, but defendant Selinger filed a motion to stay this cause pending determination of they action to quiet title, and joined as an intervening plaintiff in the action to quiet title in his capacity as administrator of the Estate of Essie Yount, Deceased. Defendant Selinger continued to administer the estate, paying out claims in the amount of $1,091.76 during the period from November 23, 1965, to January 2, 1967. In February 1968, the quiet title suit was decided adversely to the plaintiffs and defendant Selinger; it is stipulated here that in the quiet titie action the Moses deed was declared valid, and the copy of the judgment filed with the probate court recites a finding '* * * that neither of the plaintiffs nor any of them have any right title, estate or interest in or to the said premises or any part thereof.' After judgment was rendered in the quiet title action, plaintiffs, by leave of court, amended their petition in this action. This petition is laid in four counts. We are concerned here with only the first three counts of this petition in which Mrs. Hopkins as guardian, Mr. Selinger as administrator, and Travelers Indemnity Co. as surety, were joined as defendants. In Count One, the petition alleges Mrs. Hopkins' appointment as guardian and her service in that capacity from May 15, 1965, to December 2 of that year; the listing of the property involved as an asset of the estate; that Mrs. Hopkins represented that her ward was 'siezed (sic) of an indefeasible estate in fee' in the said property, and that she was authorized to transfer the property free of any encumbrance; that on September 11, 1965, Mrs. Hopkins delivered to the plaintiffs a guardian's deed in exchange for payment of the sum of $4,875 and $250 in cash to 'Trainer Realty' as real estate commission; and that on September 20, 1965, plaintiffs, upon filing their deed for record, discovered that the Moses deed had been recorded on July 10, 1965. This count further alleges that plaintiffs made payment relying upon Mrs. Hopkins' representation that title to the property was good, and that they made demand for return of the money. The plaintiffs pray judgment in the sum of $5,125, together with interest at the rate of six per cent from and after September 11, 1965.

In Count Two of this petition, plaintiffs restate the substance of Count One and further allege defendant Selinger's appointment as administrator of Mrs. Yount's estate on November 23, 1965. Plaintiffs further aver that Mr. Selinger took over the assets of the...

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