In re Estes' Estate

• Decision Date: 12 November 1942
• Docket Number: No. 37709.,37709.
• Citation: 166 S.W.2d 1061
• Parties: In re ESTES' ESTATE. ESTES et al. v. ESTES.
• Court: Missouri Supreme Court

166 S.W.2d 1061

In re ESTES' ESTATE ESTES et al. v. ESTES.

No. 37709.

Supreme Court of Missouri, Division No. 2.

November 12, 1942.

Rehearing Denied January 4, 1943.

Appeal from Circuit Court, Christian County; Robert L. Gideon, Judge.

Proceeding in the matter of the Estate of George W. Estes, deceased, brought by W. A. Estes, and others against J. E. Estes, administrator to discover assets. From a judgment for the administrator, the complainants appeal.

Affirmed.

J. William Cook, of Crane, and Frank B. Williams, of Springfield (J. N. Brown, of Springfield, of counsel), for appellants.

Joe C. Crain, of Ozark, for respondent.

WESTHUES, Commissioner.

This is a proceeding to discover assets. It was commenced by plaintiffs in the probate court of Christian county, Missouri, where a judgment was entered in favor of the administrator and against plaintiffs. Upon a trial de novo in the circuit court there was also a judgment in favor of the administrator. An appeal to this court was duly taken. The amount sought to be charged against the administrator was in excess of $7,500, hence our appellate jurisdiction.

George W. Estes, whose estate is the subject matter of this litigation, died on July 3, 1936. His wife had died a number of years before and they left no children. His only heirs were the following: Mary M. Estes, his mother; J. A. Estes, J. E. Estes, C. M. Estes and W. A. Estes, brothers; Perlina Cloud and Ella Blades, sisters; Ikey Tyndall and Keith Tyndall, nephews. All of the heirs were of legal age and sui juris. George W. Estes, who had been cashier of the People's Bank at Clever, Missouri, was succeeded in this capacity by H. P. Allen. George W. Estes was ill a number of months before his death, and before going to a hospital gave the key to his bank lock-box to Allen. After the death of George W. Estes, J. E. Estes, Tom R. Moore an attorney at Ozark, and a man named Jones went to the bank, secured the key to the deceased's box and found a will therein which was later rejected by the probate court because it had not been attested. Shortly thereafter J. E. Estes was appointed administrator of the estate, and he and the appraisers appointed by the court went to the bank, again secured the key to the deceased's box, opened it and examined its contents. Among the papers in the box were eight separate envelopes. Upon a number of these envelopes names were written, while others had slips of paper attached with names of persons written thereon. The envelopes contained certain notes which had been endorsed by the testator and one envelope contained a deed purporting to convey forty acres of land to J. E. Estes. The notes and papers found in these eight envelopes are the subject matter of this suit. All of the papers found in the box, including the eight envelopes and their contents, were taken to the probate court by the administrator and the appraisers. Inquiry was made as to whether the contents of the envelopes should be included in the inventory as property of the estate. The judge ruled that unless all of the heirs signed a release the notes, etc., should be so included. Thereafter the heirs, except the deceased's mother and W. A. Estes, met at the office of the probate court and the matter of signing a waiver was discussed. From the probate court the heirs went to the office of attorney Moore where a waiver was prepared and signed by all of the heirs present. W. A. Estes, who was ill at the time, and deceased's mother signed separate copies of the waiver. Thereafter a petition was filed in the probate court, by the heirs, asking that the eight envelopes be delivered to the persons to whom they were directed. The probate court made such an order and relieved the administrator of including the contents of the envelopes as property of the estate. The envelopes were delivered as directed. Plaintiffs who instituted this proceeding are: W. A. Estes, brother of deceased, and Ikey and Keith Tyndall nephews. They seek to charge the administrator with all the property contained in the eight envelopes, contending that the signatures to the waiver were obtained by fraud and that the waiver was void, being against public policy.

We will first dispose of a number of questions which have been briefed at length but have only an indirect bearing upon the main issues. Appellants contend that the respondent did not plead estoppel and therefore cannot rely upon that as a defense. In Maynard v. McClellan, Mo. App., 156 S.W.2d 770, it was held that in a proceeding to discover assets the interrogatories and the answers thereto constituted the pleadings and settled the issues to be tried. The administrator in the present case answered the interrogatories filed. He admitted the eight envelopes were found as the evidence disclosed. The administrator in his answer also stated that he had delivered the envelopes to persons as directed by an order of the probate court, and that this order was based upon a petition filed by the heirs. The petition and the order of the court referred to the waiver signed by all the heirs. We are of the opinion that that sufficiently presented to the trial court the issue as to the validity and the effectiveness of the waiver.

Appellants assert in their brief: "Appellants were cestuis que trustent, the administrator was trustee."

We will assume for the purpose of this case that appellants are correct in their contention, and will consider the evidence of plaintiffs as if that relationship existed. Next appellants assert that the probate court did not have jurisdiction to determine the ownership of the property contained in the eight envelopes; that that question was subject matter for a court of equity and therefore the order of the probate court authorizing the envelopes to be delivered to the persons whose names appeared thereon was void. As we view the situation the probate court did not determine the ownership of the eight envelopes and their contents. That question was not before it for adjudication. The court was insisting that the administrator include the items in the inventory unless all of the heirs interested waived their rights. Note a portion of the order of the court:

"The court further finds that all of the heirs at law of the said George W. Estes, deceased, by affidavit acknowledged in open court and by oral testimony have joined in the petition praying this court that it by order of record adjudge that the administrator of George W. Estes, deceased deliver such envelopes with their contents to the parties directed by the said deceased and that the same be not inventoried as any part of the assets of his estate, and by their declaration and testimony in open court have waived all right, title and interest in the contents of said envelopes and to any interest they may have as heirs at law of George W. Estes and that their wish is that the intention and request of the said George W. Estes, deceased, be carried out and that the Administrator of this estate deliver the same to the parties directed. * * *"

So the question of the jurisdiction of the probate court to try the issue of ownership of the property is not in this case. We will consider this case on the theory that if the administrator is to be relieved that relief must be based on the waiver signed by the heirs.

A careful reading of this record has convinced us that the charge of fraud was not sustained by the evidence. The complainants' own testimony refutes the charge. H. P. Allen, to whom the deceased had delivered the key to his bank box, testified on behalf of appellants. With reference...