In re Ozias' Estate

• Citation: 29 S.W.2d 240
• Decision Date: 26 May 1930
• Docket Number: 16898
• Parties: In the Matter of the Estate of Elmer J. Ozias, deceased.; Jesse R. Ozias, Executor, Respondent.; Bessie Ozias and I. W. Fry, Petitioners, Appellants
• Court: Court of Appeals of Kansas

29 S.W.2d 240

In the Matter of the Estate of Elmer J. Ozias, deceased.; Jesse R. Ozias, Executor, Respondent.; Bessie Ozias and I. W. Fry, Petitioners, Appellants

No. 16898

Court of Appeals of Missouri, Kansas City

May 26, 1930

Appeal from Johnson Circuit Court.

Affirmed.

ARNOLD J. Bland J. concurs; Trimble P.J. absent.

OPINION

Henry L. Arnold

This is an appeal from a finding and judgment in the circuit court of Johnson County, Missouri, refusing the revocation of letters of administration issued by the probate court of Johnson County on the estate of one Elmer J. Ozais, and to transfer the matter to the probate court of Jackson County and involves the question of legal domicile of the deceased.

The cause originated on the probate court of Johnson County, Missouri, by the filing of a petition therein by Bessie Ozais, widow of deceased, and one I.W. Fry, a creditor of the decedent. The petition, together with a motion to transfer, asked that letters theretofore granted Jesse R. Ozais as executor of the estate be vacated; and the motion sought the transfer of the estate to the probate court of Jackson County for adjunction, for the reason that at the time of decedent's death and for some time prior thereto, decedent was a resident of and had his place of abode in the City of Kansas City in Jackson County, Missouri. The probate court of Johnson County ruled adversely to the petitioners and the cause was appealed to the circuit court of that county where it was tried without the aid of a jury, judgment was for defendant and, after timely motions for new trial overruled, plaintiffs have appealed.

The facts of record show that decendent, Elmer J. Ozias, for a great many years had resided in Johnson County and owned and operated a large farm there, near the town of Centerview; that in 1909, he was married to petitioner Bessie Ozias; no children were born of the marriage; they were never separated from each other or divorced; after their marriage they lived on decendent's farm until about 1921 or 1922, when they purchased a house at 2445 Agnes Avenue in Kansas City, Missouri, and took title thereto jointly. They occupied that property about one year when they traded it for property at 3018 Woodland avenue in said city and again took title jointly. The record shows that about the time they acquired the Woodland Avenue property the health of Ozais began to fail; that he retained control and management of his farm near Centerview and spent much time on the farm but returned to Kansas City over the weekends with his wife; that the condition of his health grew worse until the summer of 1927, when he went to a clinic at Rochester, Minn., and was there told he had heart disease and the only cure was rest. Thereafter, and in December, 1927, he rented his farm to one Tom Haun, who looked after decendent's stock and cultivated part of the land on the shares. Haun moved into the main house on the farm, decendent retaining a room, or rooms, for the use of himself, or himself and wife when there that decendent retained supervision of the farm and its operation by Haun until his death in Kansas City on April 27, 1928. From December, 1927, until his death, decendent continued to visit the farm, at times with his wife and at other times alone, up to within two weeks of his death; that he removed some of his personal effects to 3018 Woodland Avenue in Kansas City but some where left at the farm. Decedent died at 3018 Woodland Avenue in Kansas City and was buried from the home of his brother, defendant herein, near Centerview in Johnson County, Mo.

At the conclusion of the evidence, the court made findings of fact in effect, as follows: (1) That deceased, sometime after December, 1927 left his farm near Centerview, Missouri, and thereafter was actually physically present and lived with his wife at 3018 Woodland Avenue, Kansas City, Jackson County, Missouri. (2) That in December, 1927, one Tom Haun became a tenant on decendent's farm; (3) that although decedent was physically present from December, 1927, until his decease, April 27, 1928, there was not sufficient evidence to show that he intended to change his domicile from his farm near Centerview, Missouri; (4) that although decendent had taken some steps to change his domicile to Kansas City, Missouri, he did not in fact so change it; (5) that at the time of his death decedent was a resident of Johnson County and not of Jackson County, Missouri, and the administration of his estate in Johnson County was proper.

Based upon the foregoing findings of fact, the court declared the law to be, as follows:

"1. That domicile or residence requires actual bodily presence in place, combined with freely exercised intention to remain there permanently of indefinitely.

2. There must be a fixed and definite purpose to remain for an unlimited of indefinite time without any definite intention of ultimate removal.

3. Actual residence for however short a time, with intent to remain either permanently or for an indefinite time without any fixed or certain purpose to return to former place of abode, is sufficient to constitute change of domicile or residence.

4. Actual residence, with intent to remain permanently or indefinitely, without any fixed or certain purpose to return to a former place of abode, is sufficient to constitute a change of domicile, irrespective of the length of the residence. 5. The question of residence is one of fact for the court the case is tried by.

6. The court declares the law to be that if Elmer J. Ozais, decendent, was a resident of Jackson County, Missouri, at the time of his death, then the probate court of Jackson County, Missouri, has jurisdiction to administer the same, but that if decendent was a resident of Jackson County, Missouri, at the time of his death, then the probate court of Jackson County, Missouri, would have jurisdiction of the probate of decendent's estate."

Motions for a new trial and in arrest of judgment were overruled, and plaintiffs have appealed.

There are seven assignments of error, the first of which is to the effect that this suit is in the nature of an equitable proceeding and therefore this court sits as a court of chancery. (2) Upon the record, the judgment should have been for plaintiffs, (3) There was no substantial evidence that deceased was a resident of Johnson County, Mo. (4) If the findings of fact and conclusions of law control, there was no evidence to support the findings of fact. (5) If the findings of fact are correct, then conclusions of law applied thereto, required a judgment for plaintiffs. (6) Both plaintiffs had a right to prosecute separately and independently, and neither was estopped to prosecute to final determination. (7) In refusing to admit competent testimony of Bessie Ozias for petitioners.

It is admitted by counsel for plaintiffs that probate courts in Missouri do not have general original equity jurisdiction, but that some of their proceedings are equitable in their nature. We hold this observation to be correct, and it remains to be determined from the nature of the question raised in the probate court, whether this suit is in equity of whether it is a law case.

Plaintiff's motion to transfer the matter of the administration of the estate for Johnson to Jackson County was a direct attack on the jurisdiction of the court. It can not be questioned that the point as presented by the motion makes it a...