In re Lissner's Estate

• Citation: 129 S.W.2d 1067,233 Mo.App. 1121
• Parties: IN THE MATTER OF THE ESTATE OF ROSEMARY YOST LISSNER, WILLIAM H. SANDBROOK, GUARDIAN AND CURATOR, APPELLANT, v. CHARLES V. YOST ET AL., RESPONDENTS
• Decision Date: 08 May 1939
• Court: Court of Appeals of Kansas

129 S.W.2d 1067

233 Mo.App. 1121

IN THE MATTER OF THE ESTATE OF ROSEMARY YOST LISSNER, WILLIAM H. SANDBROOK, GUARDIAN AND CURATOR, APPELLANT, v. CHARLES V. YOST ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

May 8, 1939

Rehearing Denied 233 Mo.App. 1121 at 1131.

Appeal from the Circuit Court of Jackson County.--Hon. John M Cleary, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Ryland Stinson, Mag & Thomson and Wm. E. Durham for appellant.

(1) This proceeding, being administrative in its nature, is before the court for consideration and determination de novo. Ferry v. McGowan, 68 Mo.App. 612; McCune's Estate v. Daniel, 76 S.W.2d 403, 408; In the Matter of the Estate of Priscilla A. Danforth, McCanse v. Goffe, 66 Mo.App. 586, 589; Noelke v. Jenny, 298 S.W. 1055; Ansley v. Richardson, 95 Mo.App. 332, 335, 336, 68 S.W. 609; Springfield Grocer Co. v. Walton, 95 Mo.App. 526, 69 S.W. 477; In re Estate of Meeker, Straat v. Swift, 45 Mo.App. 186; Fanning v. Doan, 139 Mo. 392, 415, 41 S.W. 742; In re Shelton's Estate, 338 Mo. 1000, 1011, 93 S.W.2d 684. (2) The issues presented to this court for determination are confined to the particular objections and the particular ground therefor contained in respondents' amended exceptions at the time trial was had in the probate court, except in instances wherein the particular ground of respondents' objection is conceded by appellant tendering evidence by way of confession and avoidance, in which instances the issues are broadened to the extent of the evidence offered. Hoffmeyer v. Mintert, 93 S.W.2d 894, 899; McCune's Estate v. Daniel, 76 S.W.2d 403, 409; Ritchey v. Withers, 72 Mo. 556, 559; Revised Statutes Mo. 1929, sec. 290 (Mo. St. Ann., sec. 290, p. 184); Nora Simonds' Appeal, 103 Mo.App. 388; In re Shelton's Estate, 338 Mo. 1000, 1012, 1013, 93 S.W.2d 684; In re Hall's Estate, 337 Mo. 658, 85 S.W.2d 621, 624; Revised Statutes Mo. 1929, sec. 430 (Mo. St. Ann., sec. 430, p. 271); Ferry v. McGowan, 68 Mo.App. 612, 616; McPike v. McPike, 111 Mo. 216, 224, 229, 20 S.W. 12; Revised Statutes Mo. 1929, sec. 198 (Mo. St. Ann., sec. 198, p. 131); In re Means' Estate, Means v. Means, 284 S.W. 186, 189; Wencker v. Thompson's Administrator, 96 Mo.App. 59, 66, 69 S.W. 743. (3) The burden lies on respondents to prove the allegations contained in their amended exceptions to appellant's settlement, but the burden lies on appellant to prove defenses made by way of confession and avoidance. McCune's Estate v. Daniel, 76 S.W.2d 403, 409; In re Taylor's Estate, 5 S.W.2d 457, 459; Noelke v. Jenny, 298 S.W. 1055, 1058; Brent v. Grace's Administrator, 30 Mo. 253, 256; Aslin v. Stoddard Co., 341 Mo. 138, 147, 106 S.W.2d 472; Farmers & Merchants Bank of Festus v. Funk, 338 Mo. 508, 512, 92 S.W.2d 587. (4) The court erred under the law and the evidence, and the greater weight of the evidence, in sustaining Count I of respondents' amended exceptions, or any part thereof, and in entering judgment thereon for the respondents and against the appellant in the amount of $ 233.54, and interest. (The item of $ 50 returned in appellant's settlement as having been paid to Loretto Academy is separately discussed in the next point in this argument.) Revised Statutes Mo. 1929, sec. 402 (Mo. St. Ann., sec. 402, p. 256); In re Stevens' Estate, Caskey v. Caskey, 116 S.W.2d 527; Cross v. Rubey, 206 S.W. 413; Brent v. Grace's Administrator, 30 Mo. 253, 256; State to the Use of Smith v. Martin, 18 Mo.App. 468, 476; In re Shelton's Estate, 338 Mo. 1000, 93 S.W.2d 684; In re Hall's Estate, 337 Mo. 658, 85 S.W.2d 621. (5) The court erred under the law and evidence and the greater weight of the evidence in sustaining Count I of respondents' amended exceptions, or any part thereof, with respect to the objections to the item of $ 50 returned in appellant's settlement as being paid to Loretto Academy for tuition and board, and in entering judgment for respondents and against appellant thereon in the amount of $ 50, together with interest. In re Stevens' Estate, Caskey v. Caskey, 116 S.W.2d 527, 532; In re Shelton's Estate, 338 Mo. 1000, 93 S.W.2d 684; In re Hall's Estate, 337 Mo. 658, 85 S.W.2d 621; Fanning v. Doan, 139 Mo. 392, 41 S.W. 742; See Authorities Point D, supra. (6) The court erred under the law and the evidence and the greater weight of the evidence, in sustaining Count II of respondents' amended exceptions, or any part thereof, and in entering judgment thereon against appellant and in favor of respondents in the amount of $ 51.22, together with interest. Revised Statutes of Missouri, 1929, sec. 420 (Mo. St. Ann., sec. 420, p. 267); In re Estate of Ellen Buie v. White, 94 Mo.App. 367, 370, 68 S.W. 101; State ex rel. Tygard v. Elliott, 82 Mo.App. 458, 470; Patterson v. Booth, 103 Mo. 402, 413, 15 S.W. 543; Continental Casualty Co. v. Pleitsch, 111 S.W.2d 956; In re Steven's Estate, Caskey v. Caskey, 116 S.W.2d 527; Brent v. Grace's Administrator, 30 Mo. 253; In re Shelton's Estate, 338 Mo. 1000, 93 S.W.2d 684; Fanning v. Doan, 139 Mo. 392, 41 S.W. 742. (7) The court erred under the law and the evidence and the greater weight of the evidence in sustaining Count III of respondents' amended exceptions objecting to the allowance of $ 35 for expenses incurred in Ward's behalf on World's Fair trip and in entering judgment in favor of respondents and against appellant in the amount of $ 35 and interest. In re Stevens' Estate, Caskey v. Caskey, 116 S.W.2d 527; Cross v. Rubey, 206 S.W. 413; Brent v. Grace's Administrator, 30 Mo. 253; In re Shelton's Estate, 338 Mo. 1000, 93 S.W.2d 684; In re Hall's Estate, 337 Mo. 658, 85 S.W.2d 621; Revised Statutes of Missouri, 1929, sec. 402 (Mo. St. Ann., sec. 402, p. 256); Fanning v. Doan, 139 Mo. 392, 41 S.W. 742. (8) The court erred under the law and the evidence, and the greater weight of the evidence, in sustaining Count IV of respondents' amended exceptions, or any part thereof, and in entering judgment thereon against appellant and in favor of respondents, in the amount of $ 38.22, together with interest. Revised Statutes of Missouri, 1929, sec. 420 (Mo. St. Ann., sec. 420, p. 267); In re Estate of Ellen Buie v. White, 94 Mo.App. 367, 370, 68 S.W. 101; State ex rel. Tygard v. Elliott, 82 Mo.App. 458, 470, 471; Fanning v. Doan, 139 Mo. 392, 41 S.W. 742. (9) The court erred under the law and the evidence, and the greater weight of the evidence, in sustaining the objections to item of $ 35.40 reported by appellant in his settlement dated June 1, 1934, as cash paid in January, 1934, to W. J. Ernst for plumbing repairs at 6212 Prospect, and in entering judgment in favor of respondents and against appellant in the amount of $ 35.40 and interest. Nora Simonds' Appeal, 103 Mo.App. 388; In re Shelton's Estate, 338 Mo. 1000, 1011, 93 S.W.2d 684; Hoffmeyer v. Mintert, 93 S.W.2d 894, 895, 896; In re the Estate of Ellen Buie v. White, 94 Mo.App. 367, 370, 68 S.W. 101; State ex rel. Tygard v. Elliott, 82 Mo.App. 458, 471; Fanning v. Doan, 139 Mo. 392, 41 S.W. 742. (10) The court erred under the law and the evidence and the greater weight of the evidence in sustaining County VI of respondents' amended exceptions, or any part thereof, and in disallowing the items returned in appellant's several settlements for his commissions as guardian and curator, and in entering judgment in favor of respondents and against appellant on said count in the amount of $ 319.13, with interest. Revised Statutes of Missouri, 1929, sec. 436 (Mo. St. Ann., sec. 436, p. 275); In re Stevens' Estate, Caskey v. Caskey, 116 S.W.2d 527, 532; In re Shelton's Estate, 338 Mo. 1000, 93 S.W.2d 684; In re Estate of Bowie, 74 Mo.App. 191, 195; Fanning v. Doan, 139 Mo. 392, 41 S.W. 742. (11) The court erred under the law and the evidence and the greater weight of the evidence, in denying appellant's application for attorney's fee for defending his settlements in the probate court and in the circuit court. McCune's Estate v. Daniel, 76 S.W.2d 403, 410; In re Stevens' Estate, Caskey v. Caskey, 116 S.W.2d 527, 533; In re Estate of Meeker, 45 Mo.App. 186, 197; Jacobs v. Jacobs, 99 Mo. 427, 436, 12 S.W. 457; In re Estate of Bowie, 74 Mo.App. 191, 195; In re Shelton's Estate, 338 Mo. 1000, 93 S.W.2d 648; Fanning v. Doan, 139 Mo. 392, 41 S.W. 742.

Nelson E. Johnson for respondents.

(1) (a) In entering judgment upon Count I of respondents' amended exceptions for $ 233.54, with interest in favor of respondents, the circuit court committed no error and was justified in so doing under the evidence and the law. (b) The trial court committed no error in entering judgment in favor of respondents and against appellant for the item of $ 50 together with interest thereon, purported to have been paid by appellant to Loretto Academy for tuition and board of the ward set forth in Count I of respondents' amended exceptions. Dreyer v. Videmschek (Mo.), 123 S.W.2d 63, 67; Rhoads v. Rhoads (Mo.), 119 S.W.2d 247, 251; Nelson v. Massman Construction Co. (Mo. App.), 120 S.W.2d 77, 86. (2) Under the law and the evidence, the court did not err in sustaining Count II of the amended exceptions and in entering judgment thereon against the appellant and in favor of the respondents in the amount of $ 51.22 with interest. R. S. Mo. 1929, sec. 402; Cross v. Rubey (Mo. App.), 206 S.W. 413, 414, 415. (3) The court did not err in sustaining Count III of respondents' amended exceptions, objecting to the allowance of $ 35 for alleged expense on World's Fair trip and in entering judgment in favor of respondents and against appellant therefor. (4) The court did not err in sustaining Count IV of respondents' amended exceptions, and in entering judgment thereon against appellant and in favor of respondents in the amount of $ 38.22 with...