Grissum v. Reesman

• Decision Date: 11 February 1974
• Docket Number: No. 2,No. 57468,57468,2
• Citation: 505 S.W.2d 81
• Parties: Nora E. GRISSUM, Respondent, v. Dale REESMAN, Administrator ad Litem of the Estate of Elwood Grissum, Deceased, Defendant, and State of Missouri, Appellant
• Court: Missouri Supreme Court

Page 81

505 S.W.2d 81

Nora E. GRISSUM, Respondent, v. Dale REESMAN, Administrator ad Litem of the Estate of Elwood Grissum, Deceased, Defendant and State of Missouri, Appellant.

No. 57468.

Supreme Court of Missouri, Division No. 2.

Feb. 11, 1974.

Albert F. Hillix, Kent E. Whittaker, Kansas City, for Nora E. Grissum, respondent; Hillix, Brewer & Myers, Kansas City, of council.

John C. Danforth, Atty. Gen., Peter H. Ruger, Asst. Atty. Gen., Jefferson City, for appellant State of Missouri.

HENRY I. EAGER, Special Commissioner.

This is an action in equity in which plaintiff seeks to have the Court declare sundry property, real and personal, as inventoried in her brother's estate, to be partnership property, with one-half owned by plaintiff. In a second and alternate count she sought to have a trust declared in one-half of the property for her benefit. Since the trial court entered judgment for plaintiff on the first count, it dismissed the second without prejudice, and we are not concerned with it here. The State of Missouri was made a party defendant, because the determination makes a substantial difference in the amount of inheritance taxes due, as well as federal estate taxes, and perhaps others. Decedent devised and bequeathed all his property by will to the plaintiff, so actually the only practical result here is a determination of the amount of taxes which she should pay. The difference in amounts seems to be conceded as approximately $57,000. Nora Grissum, as Executrix, was named as the original defendant, but an Administrator ad Litem was appointed and he appeared both in pleadings and at trial in defense of the action, in lieu of the Executrix. The State of Missouri appeared in pleadings and at trial, and it alone has appealed. We note here that the Statute of Frauds was pleaded by both defendants as a defense. It is unnecessary to digest the pleadings. They were sufficient to raise all the issues discussed. This Court has jurisdiction since the State is a party and the notice of appeal was filed prior to January 1, 1972.

Elwood Grissum died on March 5, 1970. The inventory of his estate, filed in the Probate Court of Cooper County, listed personal property of the value of $65,503.80, and real estate of the value of $220,902; a notation was made that one-half of that property was claimed by Nora E. Grissum. A joint checking account of $17,990.31 and sundry certificates of deposit issued to Nora E. Grissum and Elwood Grissum, 'either or the survivor,' were also listed; such joint property aggregated approximately $80,000. The real estate consisted of farmland which plaintiff and her brother had occupied and farmed and the personal property was largly farm equipment, livestock and feed. The farm acreage was 1,104.51 acres, apparently in several tracts but located close together. The title to the real estate was in the name of Elwood Grissum.

The theory of plaintiff's case was and is that a partnership was created orally between her brother and herself, back in the 1930's to operate the farmland then owned or to be acquired, to accumulate property, and to share the benefits 50--50. Plaintiff was prevented from testifying by the effect of the Dead Man's Statute which, of course, imposed a severe handicap upon her. These two continued to farm the land together until Elwood's death in 1970. There was ample evidence that Nora did the cooking, housework and all related chores, kept the books for the operation, did most of the banking, wrote all checks and paid all the bills, fed the livestock, sorted cattle and hogs and, at times, did actual, hard farm labor. This continued through all the years. She was regularly consulted about the purchase and sale of livestock and land; she frequently (or usually) accompanied her brother on trips for the purchase or sale of livestock, and such deals were made by agreement. The farm truck bore the legend: 'Elwood & Nora Grissum Farms--Boonville Mo.' Elwood had this placed on the truck. A sign was placed by Elwood over the harness shed bearing the legend,--'Elwood & Nora Grissum Boonville Mo.' This was visible to anyone approaching the house from the highway. (This sign evidence was objected to. It will be discussed later.) Elwood Grissum told sundry people, over the years, both in the presence of Nora and out of her presence, that they were partners on a 50--50 basis. A nephew of Elwood, John Grissum, Jr., who worked with him a great deal over a period of many years, asked Elwood why they could not 'go partners'; the reply was the Elwood could not do so because he already had a partner, his sister. This nephew was told at sundry times that the arrangement was a partnership; on more than one occasion he heard Nora ask Elwood when he was going to fix up the business so that she would be protected, and his answer was that they would go in and fix it up if they ever got time. In other conversations, Elwood stated on many occasions to other farmers, his doctor, and perhaps others that (in substance) he and his sister were partners in their farm enterprise '50--50', or 'all the way through,' or that they 'owned the whole thing together,' or were partners in everything. Some of these statements were made on various occasions to the same individuals. One was made so as to include the real estate. Nora, at times, made similar statements in her brother's presence. On one occasion Elwood told his nephew that he thought Nora should 'come up' with her partnership half of the work (apparently meaning farm labor), and the nephew replied that she was doing more than her half. Elwood and Nora discussed and decided together on livestock deals and the general operation of the farm. The statements relating to the partnership extended back at least as far as the 1940's and they continued to within a very few weeks of Elwood's death. Nora and Elwood told their banker that everything they had was a 'joint venture.' All entries into the safety deposit box, except one in 1949, were made by Nora. On one occasion Elwood stated that he would have to consult Nora before buying some cattle because she was his partner; he later bought them.

A joint bank account was opened in the names of Elwood and Nora Grissum in June, 1967, with a deposit of $13,128.68, proceeds of the farm operations. Prior to that time the account had been kept in the name of Elwood Grissum. The joint account was continued until Elwood's death with all farm money deposited in it. When money was borrowed Elwood signed the notes alone. The farm insurance was applied for and issued in both names, i.e., Elwood and Nora Grissum, from at least as early as 1957 and presumably before. It was stipulated that Elwood filed individual federal income tax returns (and presumably Missouri also) from 'about' 1966 through 1969, and copies were produced as exhibits. We are not advised what was done before that. For the year 1970, four returns were filed: an individual return for Elwood to the time of his death, a partnership return, a fiduciary return, and an individual return for Nora. The point of all this is that Elwood did, for some years prior to his death, report farm income on individual returns. We shall discuss this later. The exhibits show that land was acquired in the name of Elwood in 1937 (presumably from his father and mother) in 1942, 1946, 1947, 1948, 1949 and 1952. He executed two deeds of trust which were soon paid and released. It is obvious that most of these tracts were purchases made to increase the farming operation. The occupancy and operation of the farm or farms started in the depression in the 1930's, with (apparently) one eighty-acre tract; at Elwood's death the inventory value (exclusive of joint property) had increased to approximately $286,000. During all this period Nora had lived and worked on the farm. It is certainly true that both Elwood and Nora derived all their living expenses from the operation of the farm, for no other source of income is indicated. It also seems obvious that neither drew down and profits, as such, but that all excess went into the expansion of the farm operation and (some) beginning in January, 1969, into joint certificates of deposit. The defendants put on no witnesses.

The appellant relies here on the following points: (1) that the evidence did not sufficiently establish a partnership; (2) that the Court erred in admitting 'evidence of a collateral nature,' and (3) that the action is barred by the Statute of Frauds.

On the first point appellant cites many cases. It would be both confusing and useless to attempt to compare their facts with those in the present case. We have examined them and will try to express here the principles which they seem to enunciate. In general, it is thus held: that mere joint ownership of property, or 'helping out' in the conduct of a store (by a wife) is not sufficient proof of a partnership (Shawneetown Feed and Seed Co. v. Ford et al., 468 S.W.2d 54 (Mo.App.1971); that the supposed partners must have made a definite and specific agreement (Chapin v. Cherry, 243 Mo. 375, 147 S.W. 1084 (1912); that the intention of the parties is the primary criterion in deciding whether a partnership exists (Bussinger v. Ginnever, 213 S.W.2d 230 (Mo.App.1948); that a partnership may be established by oral agreement or it may be implied from the acts and conduct of the parties and from the circumstances (Bussinger, supra; prasse v. Prasse, 77 S.W.2d 1001 (Mo.1934); that a participation in profits and losses is the usual and perhaps most cogent test of the intention of the parties, but this is not conclusive (Van Hoose v. Smith, 355 Mo. 799, 198 S.W.2d 23 (1946); that there may be a joint venture by an arrangement which is entirely informal, an agreement to share losses may be implied, and there may be an agreement that one party should only lose his labor (Allison v. Dilsaver, 387 S.W.2d 206 (Mo.App.1965); that a sharing of profits is necessary in a partnership...