Kranitz' Estate, In re, WD

• Court: Missouri Court of Appeals
• Writing for the Court: Before PRITCHARD, P. J., SWOFFORD, J., and FLANIGAN; FLANIGAN
• Citation: Kranitz' Estate, In re, 610 S.W.2d 300 (Mo. App. 1980)
• Decision Date: 03 November 1980
• Docket Number: No. WD,WD
• Parties: In Re Estate of Louis KRANITZ, Deceased. Theodore M. KRANITZ, Respondent-Cross Appellant, v. J. Ruth HOYT, Appellant-Cross Respondent. 31181.

Page 300

610 S.W.2d 300

In Re Estate of Louis KRANITZ, Deceased Theodore M. KRANITZ, Respondent-Cross Appellant, v. J. Ruth HOYT, Appellant-Cross Respondent.

No. WD 31181.

Missouri Court of Appeals, Western District.

Nov. 3, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 30, 1980.

Application to Transfer Denied Jan. 9, 1981.

William E. Erdrich, St. Joseph, for appellant-cross respondent.

Theodore M. Kranitz, St. Joseph, for respondent-cross appellant.

Before PRITCHARD, P. J., SWOFFORD, J., and FLANIGAN, Special Judge.

FLANIGAN, Special Judge.

This action, which originated in the probate division of the circuit court of Buchanan County, involves a claim by J. Ruth Hoyt ("Joan") against the estate of Louis Kranitz, deceased, ("Louis"). Theodore M. Kranitz, the executor of the estate, filed a counterclaim. Sitting without a jury, the trial court allowed some items of the claim and the counterclaim and denied other items. Both Joan and the executor have appealed.

On her appeal Joan presents two points: (1) The trial court erred in denying her claim to a share ¹ of the proceeds of the sale of Arizona real estate; and (2) The trial court erred in admitting certain evidence in support of a $1,300 item in the executor's counterclaim based on a loan in that amount made by Louis to Joan.

On his appeal the executor presents three points: (1) The trial court erred in allowing any item of Joan's claim, including recovery on a $1,700 note made by Louis to Joan, because all claims of Joan were barred by reason of a contract which Louis and Joan entered into in 1974; (2) The trial court erred in awarding a microwave oven and a music box to Joan because those items were assets of the estate; and (3) The trial court erred in denying the item of the executor's counterclaim which sought reimbursement from Joan for bills of Joan which Louis paid during his lifetime.

Because Joan's first point and the executor's first point are interlocked, they will be considered together.

Louis, a lawyer, died in 1979. For several years prior to his death he had a close social relationship with Joan. It was Joan's testimony that she was "living with Louis." The brief of the executor states that Louis "entered into some form of symbiotic relationship with Joan which continued until he died." The record shows that Joan and Louis cohabited for several years but never married.

In July 1974 Joan and Louis went to a convention in Chicago. Louis's son, who is a lawyer and is executor of Louis's estate, drafted an agreement, set out marginally, ² mailed it to Joan and Louis, and both of them signed it.

On January 13, 1976, Joan and Louis obtained title, as tenants in common, to some real estate in Arizona. The deed, in which they were co-grantees, described Louis as "an unmarried man" and Joan as "an unmarried woman." The deed was silent as to the respective interests of Joan and Louis. The deed also recited that "the grantee (sic) herein agrees to assume and pay" a certain mortgage. Also on January 13, 1976, Louis, alone, executed a promissory note in the amount of $6,855 payable to the sellers of the Arizona land and secured the note by a second mortgage which Louis alone executed. Joan's evidence showed that she was the source of some of the mortgage payments.

In the summer of 1977 Joan and Louis sold the real estate and the proceeds of that sale, after payment of encumbrances (including $1,688.84 on the second mortgage) and other expenses, amounted to $15,016.10. A check in that amount, payable to Louis and Joan, was sent by the handler of the transaction to St. Joseph, Missouri, where Louis and Joan then jointly resided. A copy of the front of that check, which was cashed, was introduced in evidence but a copy of the back of it was not introduced.

As the brief of the executor points out, the record is silent with respect to the following: the original purchase price of the Arizona real estate; the respective amounts contributed by Joan and Louis to its acquisition; the amount of the respective contributions of Joan and Louis to improvements, maintenance costs, taxes, and mortgage payments; the value of any services rendered by Joan or Louis with respect to the real estate.

The record leaves much to be desired with respect to tracing the proceeds of the $15,016.10 check. At the trial the executor stated that the 1977 income tax return of Louis was "prepared in our office and taxes were paid on the transaction. That was recorded on his 1977 tax return. He did pay taxes on the entire gain on that transaction. But, what happened to the money, we have never been able to find." There was no claim by the executor that Joan made a gift ³ to Louis of her share of the proceeds. There was evidence that Joan did not receive any of the proceeds.

In Thompson on Real Property, 1979 Replacement, Vol. 4, § 1797, p. 150, it is said:

"Tenants in common are presumed to take equal shares unless the instrument creating the tenancy specifies otherwise. Tenants in common are considered to own equal shares unless there is contrary evidence. If the deed to two persons is silent as to their respective interests, there is a presumption that the interests are equal...." To similar effect see 20 Am.Jur.2d Cotenancy and Joint Ownership § 118, p. 215; Anno. 156 A.L.R. 515.

In Brooks v. Kunz, 597 S.W.2d 183 (Mo.App.1980), in commenting on the foregoing presumption, the court said at p. 187: "Although supported by logic and fairness this presumption has not been recognized in Missouri cases, which require evidence of the proportionate contribution of each of the grantees toward the acquisition of the property."

In addition to Brooks, the following cases dealt with the respective rights of a man and a woman, who cohabit while unmarried, to real estate to which they acquire title as tenants in common: Anderson v. Stacker, 317 S.W.2d 417 (Mo.1958); Atkinson v. Dasher, 588 S.W.2d 215 (Mo.App.1979); and Keller v. Porchey, 560 S.W.2d 257 (Mo.App.1977). In each case separation of the respective interests was sought, either by partition or by an action to quiet title.

In Anderson the man furnished all of the funds used to acquire the real estate. The woman did not furnish any of the funds nor did she perform any services "such as a woman living with a man ordinarily renders." The supreme court affirmed the action of the trial court which awarded all the land, in a quiet title action, to the man.

In Atkinson the man contributed.$19,000 and the woman contributed $1,000 to a down payment of $20,000. Although both signed a note for the balance of the purchase price, all payments on the note were made by the man. The court affirmed the judgment of the trial court which awarded the woman, out of the proceeds of a partition sale, only the $1,000 contributed by her and awarded the balance to the man.

In Brooks and Keller the record did not show the respective financial contributions of the man and the woman to the acquisition of the land. In each instance the court of appeals refrained from making a determination of their respective interests and remanded the case to the trial court for that determination. In Brooks the Missouri rule, basing division of the proceeds upon the proportionate contributions of the cotenants, was held applicable to the division of proceeds of the sale of Missouri land and of land located in Montana. ⁴

As pointed out in Capoferri v. Day, 523 S.W.2d 547, 557(2, 3) (Mo.App.1975), it is the duty of this court to dispose finally of the case unless justice otherwise requires. See Rule 84.14. ⁵ But the duty to make final disposition "presupposes a record and evidence upon which we can perform this function with some degree of confidence in the reasonableness, fairness and accuracy of our conclusion; and, when such record and evidence are not presented, reversal and remand necessarily follow." Capoferri, at p. 558.

Because the record has not been developed satisfactorily with respect to the facts governing entitlement to the proceeds of the Arizona real estate, the cause must be remanded for that purpose, as was done in Brooks and Keller, unless there is validity in the executor's first point that the 1974 agreement bars Joan from making a claim to a share of the proceeds.

In the agreement the parties recited that their purpose was "to fix and determine by this agreement the rights and claims that will accrue to each of them in the estate and property of the other by reason of said relationship...." Although the language of paragraph 2 of the agreement is broad, the language of paragraph 3 is to the effect that (Joan) "shall during her lifetime keep and retain sole ownership, control, and enjoyment of all property, real, personal, and mixed, including but not limited to choses in action, now owned or hereafter acquired by (Joan) free and clear of any claim of (Louis)."

If the fact is that Louis converted Joan's share of the Arizona...