Horton v. Elmore's Estate, 24638

• Decision Date: 02 October 1967
• Docket Number: No. 24638,24638
• Parties: Russell HORTON, Administrator of the Estate of Lettie Horton, Deceased, Appellant, v. ESTATE of Ben ELMORE, Deceased, Charles F. Elmore, Administrator W/W/A, Respondent.
• Court: Missouri Court of Appeals

Page 48

420 S.W.2d 48

Russell HORTON, Administrator of the Estate of Lettie Horton, Deceased, Appellant, v. ESTATE of Ben ELMORE, Deceased, Charles F. Elmore Administrator W/W/A, Respondent.

No. 24638.

Kansas City Court of Appeals, Missouri.

Oct. 2, 1967.

George S. Thompson, Salisbury, for appellant.

Edward W. Speiser, Salisbury, for respondent.

HOWARD, Presiding Judge.

This case originated in the probate court of Chariton County, Missouri, wherein Lettie Horton filed her petition for an order directing the administrator of the estate of Ben Elmore, deceased, to deliver to her a promissory note dated July 17, 1964 in the amount of $10,000.00, executed by F. B. Manion and Ruby F. Manion and payable to Ben Elmore or Lettie Horton as tenants by the entirety. Before this application could be heard, Lettie Horton died and her administrator was substituted as petitioner. Thereafter, the probate judge was disqualified and the matter was certified to the circuit court of Chariton County where a trial to the court sitting without a jury resulted in a judgment finding the issues for the defendant and against the plaintiff and declaring that the note was the property of the estate of Ben Elmore. Plaintiff has duly appealed to this court.

Plaintiff contends that the finding of the trial court was erroneous because, under the evidence, it should be that the note in question became the sole property of Lettie Horton on the death of Ben Elmore. The facts appear to be as follows. Ben Elmore was 84 years of age when he died April 28, 1965. He was a retired farmer and for a number of years had engaged in the business of loaning money and collecting the interest and principal on the notes evidencing such loans. He and Lettie Horton are described as having been sweethearts for over 30 years. They never married. At the time here pertinent, Ben Elmore owned an apartment building in which there were four apartments. He occupied one apartment and Lettie occupied another apartment. Lettie and not pay any rent for her apartment. She performed many errands for Ben and as one witness described it, she did his legwork. She took checks to the bank and cashed them for Ben and paid his utility bills and performed other similar minor services. She was 77 years old at the tiem of her death on January 20, 1966. Ben Elmore stated to several people that he was going to take care of Lettie as long as she lived and was going to leave her a life estate in the apartment house in his will. One witness with whom Ben discussed business matters advised him that the apartment house would not pay for itself and that Lettie could not maintain it unless Ben left her some money to take care of the apartment house.

For a number of years Ben Elmore had a $10,000.00 note from F. B. Manion. This note had been renewed several times. The first two or three notes evidencing this debt were made payable to Ben Elmore alone and were signed by Mr. Manion alone. A year prior to the making of the note here in question, which would have been in July of 196o, the note for this $10,000.00 debt was renewed and for the first time it was made payable to 'Ben Elmore or Lettie Horton as tenants by the entirety'. Marjorie Henry, th vice president and secretary of the Salisbury Bank, testified that 'sometime ago' Lettie came into the bank with a note and told her that Ben Elmore wanted her (Lettie's) name inserted in the note. She advised Lettie that this could not be done but that the note would have to be rewritten. She did not know what note Lettie had with her at that time.

On July 17, 1964, Ben Elmore went to F. B. Manion's office and a new note was made. Ben Elmore told Manion that he wanted the note payable to 'Ben Elmore or Lettie Horton as tenants by the entirety'. Manion called his office girl into his private office and, in the presence of Ben Elmore, instructed her now to type up the note. She wrote the note as instructed and returned it to Mr. Manion. Manion then signed it in Ben Elmore's presence and the prior note was delivered to Manion who destroyed it immediately after Ben Elmore left with the new note. This note was 'Due five years from date. Borrower to pay $2,000.00 per year on principal, with privilege to pay all or any part any interest paying date. Interest payable annually * * *'. Sometime later, probably two or three weeks, Ben Elmore sent Lettie with the note to Mr. Manion's office to secure the signature of Mrs. Manion. Mr. Manion sent Lettie to his home with the note and his wife, Ruby Manion, then signed the note. This was the first time that Mrs. Manion had signed any of these notes.

When this note was made out, Ben Elmore told Manion that he wanted Lettie to have the money for the upkeep of the apartment house. Manion testified that the upkeep of the apartment house was his (Ben Elmore's) main thought.

After this was done, Ben stated to various witnesses that he had shown the note to Lettie and would like for her to have it but he was afraid she might misplace or destory the note and he would keep the note himself. He stated that with Mrs. Manion's signature, it was the best note in town and better than any they had at the bank. He stated that he had the house willed to Lettie for her lifetime and that he had left the note to Lettie. One witness testified that Ben told him the note was payable to Lettie. This witness also testified that Ben stated that he wanted the interest on the note as long as he lived. In the past Manion had desired to pay off the debt but Ben Elmore would not let him do that, stating that he wanted the interest, not the principal.

After Ben Elmore went to the hospital for what turned out to be his last illness, a nephew, Charles F. Elmore, who became his administrator, was given a power of attorney to handle his business affairs. At this time, his sister-in-law and another nephew went to his apartment and unlocked his desk. In this desk they found a cigar box in which was a bundle of notes, including the Manion note here in question. These were taken from the desk to the bank where Charles Elmore placed them in a safety deposit box. Lettie Horton never made any claim to or demand for this note until her petition was filed in probate court January 12, 1966.

The manner in which this note is made payable, i.e. to 'Ben Elmore or Lettie Horton as tenants by the entirety', creates an ambiguity. In such circumstances, we must determine the intention of the parties from the instrument itself and from all of the surrounding circumstances. See Creek v. Union National Bank in Kansas City, Mo., 266 S.W.2d 737, and Mercantile-Commerce Bank & Trust Co. v. Kieselhorst Co., 350 Mo. 30, 164 S.W.2d 642. It is obvious that since Ben Elmore and Lettie Horton were not husband and wife, they could not hold title to this instrument as tenants...