Jensen v. McCall's Estate

• Court: Missouri Supreme Court
• Writing for the Court: STORCKMAN
• Citation: Jensen v. McCall's Estate, 426 S.W.2d 52 (Mo. 1968)
• Decision Date: 11 March 1968
• Docket Number: No. 1,No. 52690,52690,1
• Parties: Jacob and Louise JENSEN, Appellants, v. ESTATE of John Robert McCALL, Deceased, Claude C. Cooper, Executor, Respondent

Page 52

426 S.W.2d 52

Jacob and Louise JENSEN, Appellants, v. ESTATE of John Robert McCALL, Deceased, Claude C. Cooper Executor, Respondent.

No. 52690.

Supreme Court of Missouri, Division No. 1.

March 11, 1968.

Motion for Rehearing or to Modify Opinion Denied April 8, 1968.

J. William Blackford, Blackford & Wilhelmsen, Kansas City, and David D. Lodwick, Excelsior Springs, for appellants.

Cornelius Roach III, Donald L. Mason, Jack E. Gant, Mason, Gant & Moran, Kansas City, for respondent.

STORCKMAN, Judge.

The appellants Jacob and Louise Jensen filed a claim for $20,000 in the Probate Court of Clay County against the Estate of John Robert McCall, deceased. From the briefs it appears that the Estate presented no evidence at the hearing in probate court and judgment was rendered for the claimants from which the Estate appealed. In the circuit court the Estate filed two motions to dismiss the plaintiffs' demand for its failure to state a claim. The motions were sustained and a judgment was rendered from which the claimants have appealed. The primary issues presented on appeal are whether the written demand states the nature of the claim sufficiently to comply with § 473.380, RSMo 1959, V.A.M.S., whether the contract on which the claim is founded is invalid for lack of mutuality, and whether the action is one in equity for specific performance of which the probate court does not have jurisdiction.

The material parts of the written demand are as follows: 'Claim as per contract between John R. McCall and Jacob & Louise Jensen dated May 28, 1963, in amount of $20,000.00 a copy of said contract being attached hereto and made a part hereof $20,000.00 TOTAL 20,000 00'. An affidavit attached to the claim, executed by both claimants, states: 'Jacob Jensen and Louise Jensen, being duly sworn, state that, to the best of their knowledge and belief, they has (sic) given credit to the above estate for all payments and offsets to which it is entitled, and that the balance here claimed is justly due.' The copy of the contract attached to and filed with the claim is as follows:

'THIS AGREEMENT, made and entered into this 28th day of May, 1963, by and between JOHN ROBERT McCALL, first party, and JACOB JENSEN and LOUISE JENSEN, jointly, second parties.

'WHEREAS, the first party is a single man and is residing at this time in the home of second parties at RR 21, Antioch Station, Kansas City, Missouri, Clay County, and

'WHEREAS, it is the intention of the first party to make his home with the second parties upon the conditions hereinafter set out, it is by the parties now agreed as follows:

'In consideration of the sum of One Dollar ($1.00), to the second parties paid by the first party, the receipt of which is hereby acknowledged, the second parties agree that during the life time of the first party, or for that term hereinafter set out, they will furnish a home for the first party in their home in Clay County, Missouri, treating this first party as a member of the family, the meaning of which is that they will furnish his food, laundry, bedclothes, afford him the access to such parts of the house as he may desire except their bedroom, giving him free run of the property, except he is not to have any say in the management of the same, and during which time he shall pay the sum of $5.00 per month during the term of this contract.

'This contract is to last during the life of the first party and in the event the second parties have furnished the above items and services, the first party does agree that upon his death he will have by will provided and here represents he will have available for payment, the sum of Twenty Thousand Dollars ($20,000.00) to said second parties, jointly, as husband and wife, and he represents that he has this same day executed a will leaving said parties the sum of Twenty Thousand Dollars ($20,000.00) conditioned upon their faithful performance of this agreement.

'In the event during the life time of this contract, the first party's physician shall advise him that for his best care and treatment he should be confined to a hospital or other facility, then that event shall not be a violation of the obligations of the second parties to this contract.

'Either party may cancel this contract at any time they desire, however, in the event the first party cancels this contract, then first party shall be obligated to pay for the time he has been in the home of second parties, at the rate of Eighty Dollars ($80.00) per month.

'IN WITNESS WHEREOF, the parties have hereunto set their hands to three copies of this contract, each of which shall be considered an original, this 28 day of May, 1963.

'(Signed) John R. McCall

'(Signed) Louise Jensen

'(Signed) Jacob M. Jensen

'Subscribed and sworn to before me this 28 day of May, 1963.

'(Signed) Shirley Fuhrman

Notary Public

'My comm. expires: 4--6--65'

The two motions to dismiss the claim were filed in the circuit court on the same day. Both motions assert that claimants' demand fails to state a claim. The first motion states three grounds for dismissal directed to alleged deficiencies in the statement as follows: 1. failure to allege 'any facts tending to show how or in what manner decedent breached the contract' in violation of § 473.380, RSMo 1959, which requires a probate demand to state the nature of the claim; 2. failure of the claimants to allege as required by Rule 55.18, V.A.M.R., that they faithfully performed their duty to furnish board, room, bedclothing and laundry to the deceased during his lifetime; and 3. failure to allege performance or willingness to perform or a legal excuse for nonperformance. This third ground further asserts that the contract was 'mutual and dependent, imposing concurrent obligations upon both parties' so that performance or willingness to perform was a condition precedent to decedent's obligation to the contract.

The second motion, designated an 'ALTERNATE MOTION', sought dismissal on the ground the demand 'upon its face' failed to state a claim 'because the contract was so lacking in mutuality as to be invalid and unenforceable, as a matter of law, being one terminable at the will of either party.' The trial court sustained 'said motions' and ordered, adjudged, and decreed: 'That claimants take naught by their suit against the defendant herein'.

Section 473.380, RSMo 1959, V.A.M.S., regulating the presentation of claims in probate courts, reads in material part as follows: '1. No claim shall be allowed against an estate unless it is in writing, stating the nature and amount thereof, if ascertainable, and is accompanied by an affidavit of the claimant, * * *.' '2. Ir a claim is founded on a written instrument, the original or a copy thereof with all indorsements shall be attached to the claim.'

The claim was founded on a written contract and a copy of it, as set out above, was attached to the claim. The amount of the claim, $20,000, as provided in the contract for full performance by the claimants, was stated and the statutory affidavit was attached stating that the claimants had given credit to the Estate for all payments and offsets and that the balance claimed was justly due. There is no dispute as to these items. The initial question presented is whether the demand states 'the nature' of the claim sufficiently to satisfy the legislative intention of § 473.380. In the sense used here, the word 'nature' is defined as 'the essential character or constitution of something'. Webster's Third New International Dictionary. Thus, the inquiry is whether the statement and contract filed disclosed the essential character or constitution of the claim against the estate.

The applicable rule of statutory construction was stated in In re Franz' Estate, Mo., 245 S.W.2d 1, 5(4), as follows: 'Clearly the Legislature intended to make it easy for persons not learned in the law to present their demands against estates in the probate court and on appeal in the circuit court without being held to technical formalities and rules. Our courts have steadfastly refused to narrow the construction or restrict the application of the statutes cited.'

A demand filed in probate court is not to be judged by the strict rules of pleading applied to a petition in the circuit court, and it is sufficient if it gives reasonable notice to the legal representative of the estate of the nature and extent of the claim and is sufficiently specific so that a judgment thereon will be res judicata of the obligation on which it is based. Siegel v. Ellis, Mo., 288 S.W.2d 932, 938(4). These standards of sufficiency are also approved in Bench v. Egan's Estate, Mo., 363 S.W.2d 547, 549, Malone v. Adams, Mo.App. 362 S.W.2d 95, 97--98(3), In re Franz' Estate, Mo., 245 S.W.2d 1, 4(2), In re Thomasson's Estate, 346 Mo. 911, 144 S.W.2d 79, 81--82(4), and Meffert v. Lawson, 315 Mo. 1091, 287 S.W. 610, 611(5). See generally in this regard 34 C.J.S. Executors and Administrators § 417b, p. 194. On appeal to the circuit court, the cause is tried anew without formal pleadings being required. Section 472.250, RSMo 1959, V.A.M.S.; In re Franz' Estate, Mo., 245 S.W.2d 1, 4(3); Meffert v. Lawson, 315 Mo. 1091, 287 S.W. 610, 611(5); Wencker v. Thompson's Adm'r, 96 Mo.App. 59, 69 S.W. 743, 745(6).

The Estate contends the statement of claim is deficient in that if does not allege any breach of the contract on which the demand is founded and that it fails to state any facts constituting a breach or showing how or in what manner the contract was breached. In support of these contentions, the respondent cites a number of cases dealing with petitions for damages for breach of contract filed in the circuit court prior to the enactment of the code of civil procedure in 1943 and before the adoption of rules of civil procedure by this court. We have examined all of them; they have no possible relevancy to claims filed in the probate court under § 473.380. The respondent's contention seems to...