James' Estate, In re

• Decision Date: 23 October 1970
• Docket Number: No. 8987,8987
• Citation: 459 S.W.2d 536
• Parties: In the Matter of the ESTATE of Lucy Ann Louise JAMES, Deceased.
• Court: Missouri Court of Appeals

Page 536

459 S.W.2d 536

In the Matter of the ESTATE of Lucy Ann Louise JAMES, Deceased.

No. 8987.

Springfield Court of Appeals, Missouri.

Oct. 23, 1970.

J. W. Grossenheider, Lebanon, for appellants.

John A. Honssinger, Lebanon, Claude T. Wood, Richland, for respondent.

HOGAN, Judge.

This case began as a proceeding to determine damages for breach of the obligation of an administrator's bond, as authorized by § 473.207, subsec. 2, R.S.Mo. ¹ The applicants, who are creditors of the estate, appeal from an adverse judgment. The factual setting of the case has been reported before, see In re Estate of James, Mo.App., 431 S.W.2d 660, and Hart v. Wood, Mo.App., 392 S.W.2d 20, and need not be restated at length.

Lucy Ann Louis James died intestate in Laclede County, Missouri, on November 24 or 25, 1960. At her death, she had assets, including real property, valued at some $3,000. Letters of administration were granted to Mr. Art Wood, the respondent here, and he executed a bond. Very shortly after the administration was begun, Mr. James Sutherland and his two sisters, Mrs. Elsie Crall and Mrs. Elizabeth Hart, who were Miss James' neighbors during her lifetime, filed a joint claim for $3,000 against the estate for personal services rendered. All three claims were litigated. Mr. Sutherland had judgment in the sum of $500, Mrs. Crall recovered $750, and Mrs. Hart had judgment in the amount of $400. Upon demand of Mr. Sutherland's attorney, the Sutherland judgment was satisfied. The Crall and Hart claims were duly classified but remained unpaid, and by September 1965 it had become apparent that the assets of the estate would probably be insufficient to satisfy the Crall and Hart judgments.

Mrs. Crall and Mrs. Hart then filed an application, as stated pursuant to § 473.207, subsec. 2, alleging, among other things, that the administrator, without statutory authority or order of the probate court, had paid the Sutherland claim and seven others in the aggregate amount of $1,156.80; that some of the amounts paid, particularly as attorney's fees, were grossly excessive; that the administrator had incurred other obligations or had made other payments which were exorbitant and unnecessary; and as a consequence the assets of the estate were insufficient to pay the applicants' claims and the costs of administration. The applicants further alleged that the administrator had purposely depleted the assets of the estate out of malice and ill will toward the applicants. The applicants prayed for a determination of damages sustained as a result of the administrator's misconduct, and for 'appropriate process (to) enforce collection' of the amounts found to have been wrongfully paid.

The case was transferred to the circuit court, and on motion of the administrator a number of crditors were cited to appear; several of them filed responsive pleadings. The court heard evidence, made a rather voluminous record, and found, among other things, that: (1) the Sutherland claim had been improvidently paid, and Mr. Sutherland and his attorney were ordered to restore the amount they had received; (2) the administrator was entitled to credit for all other expenditures theretofore made, and should proceed to file a final settlement and (3) the application was otherwise without merit. Both applicants and Mr. Sutherland appealed. This court found the appeal premature and dismissed it. In re Estate of James, supra, 431 S.W.2d 660.

Thereafter, the record is in some confusion. Mrs. Hart and Mrs. Crall filed a paper in the probate court styled 'Objections to Final Settlement and Application for Determination of Damages against Administrator and Sureties on Bond.' In this pleading, the applicants state that they object to the final settlement filed on December 3, 1968, for the specific reasons set forth in their original application, and they incorporate that application by reference. They further incorporate the opinion of this court in In re Estate of James, supra, 431 S.W.2d 660, and pray the controversy be determined on the evidence found in the transcript on appeal filed in that case. That pleading, together with several others, was filed in this court with a stipulation that the collected papers be considered a supplemental transcript.

In this court, the applicants seek a sweeping review of the trial court's judgment. In our opinion, and with deference to counsel, the state of the record and the appellants' brief prevent the kind of review the appellants request. In their brief, the appellants, charge that '(t)he court erred in finding the administrator had properly performed his duties * * * because the order is inconsistent with the findings of fact * * * and with the undisputed evidence * * * that the expenditures made by the administrator of amounts in excess of judgments of applicants to attempt to secure a new trial and other expenditures indicated in the argument herein were not in good faith, were harmful to the estate and were without regard for reason and were bound to and did result in financial loss to these applicants.' The assignment, it will be seen, is lengthy but not specific. The argument part of appellants' brief, to which the 'points relied on' refers for greater specificity, contains only four references to specific transcript pages. The brief is in plain and serious violation of Rule 83.05.

It is not required that points on appeal be presented with technical perfection, but Rule 83.05, subd. (a)(3) requires that '(t)he points relied on * * * show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous * * *' and plainly contemplates particularization of the question or defect presented. Guidicy v. Guidicy, 361 Mo. 1127, 1134, 238 S.W.2d 380, 383(1); State ex rel. State Highway Commission v. Warner, Mo.App., 361 S.W.2d 159, 162(3); State at inf. Dalton ex rel. Erwin v. Taylor, Mo.App., 293 S.W.2d 12, 19(5). Moreover, Rule 83.05, subd. (a)(4) contemplates that the 'argument' part of the brief will specify the place in the transcript where the matters complained of are to be found. Jacobs v. Stone, Mo., 299 S.W.2d 438, 440(4); Ambrose v. M.F.A. Cooperative Ass'n of St. Elizabeth, Mo., 266 S.W.2d 647, 648--649(1). The consequences of an appellant's failure to specify errors vary, of course, depending upon the complexity of the questions presented and the record involved. In this case, however, we are not presented with a mere nine-page record, as was the case in Kansas City v. Stricklin, Mo., 428 S.W.2d 721, nor is this a case which presents a single obvious question, as was McQuate v. White, Mo., 389 S.W.2d 206, and Milanko v. Austin, 362 Mo. 357, 241 S.W.2d 881, cert. denied 342 U.S. 906, 72 S.Ct. 298, 96 L.Ed. 678. We have before us a transcript of some 200 pages, supplemented by four files which were introduced in evidence in their entirety. The file of the probate court alone, by rough count, contains some 44 loose papers and 62 bound papers, reflecting transactions which have occurred at various times in the ten years this modest estate has been in administration. The written memorials of the expenditures to which the appellants refer as being 'harmful to the estate' and 'without regard for reason' are scattered throughout the four files, and the 'undisputed evidence' which they assert proves that the court erred is dispersed throughout the 200-page transcript. If the appellants wanted the item by item review for which they seem to contend, they could have provided us with an index of the relevant exhibits, see Hughes v. Aetna Ins. Co., Mo., 261 S.W.2d 942, 945(5), and could have specified the evidence which proves the trial court wrong by directing our attention to the place in the record at which it appears. School Dist. of Kansas City v. Phoenix Land & Improvement Co., 297 Mo. 332, 344, 249 S.W. 51, 54(7). It is the duty of the appellant to point out distinctly the errors complained of, to show that they were prejudicial, and to locate the errors in the record. Jacobs v. Stone, supra, 299 S.W.2d 438, 440(4); Schoenhals v. Pahler, Mo., 272 S.W.2d 228, 230(6); State ex inf. McKittrick ex rel. Chambers v. Jones, 353 Mo. 900, 909, 185 S.W.2d 17, 20(3). An appellate court cannot, in fairness, become an advocate for the appellant and search the record for errors to support a general assignment that the trial court reached the wrong result, even in a court-tried case, Schlanger v. Simon, Mo., 339 S.W.2d 825, 828(3); Pfotenhauer v. Ridgway, 307 Mo. 529, 534, 271 S.W. 50, 51(5); Lane v. Katt, Mo.App., 421 S.W.2d 544, 546(6), and we decline to do so here.

The appellants' further and final assignment of error is that the trial court erred in ordering James Sutherland and his attorney to repay the sum of $363.45, 'because the court had no authority under the statutes' to make such an order, and because the order was inconsistent with the court's findings of fact.

The claim of inconsistency in the trial court's findings of fact need not detain us long. If all the court's findings are considered as a whole, including those made after the premature appeal was dismissed, they reflect...