Lenhardt's Estate v. Lenhardt
Decision Date | 17 March 1959 |
Docket Number | No. 30219,30219 |
Parties | Matter of the ESTATE of Anna LENHARDT (Deceased), Grace Whalen, Claimant, (Plaintiff), Appellant, v. Oliver J. LENHARDT, Executor of the Estate of Anna Lenhardt (Deceased), (Defendant), Respondent. |
Court | Missouri Court of Appeals |
Flynn, Parker & Badaracco, St. Louis, for appellant.
William O. Cramer, Walter H. Pollmann, St. Louis, for respondent.
This proceeding arose by plaintiff filing a claim in the Probate Court of the City of St. Louis against the estate of Anna Lenhardt, deceased, for alleged services rendered decedent during her lifetime. The claim was allowed by the probate court, and defendant appealed to the circuit court, where, upon trial to the court, a finding and judgment were rendered in favor of defendant. Plaintiff has appealed to this court.
Appellant, in her claim, alleged she was entitled to $15 per week for services rendered during three consecutive periods: (1) for 86 weeks between April 13, 1950, and December, 1951, in the amount of $1,290; (2) for 148 weeks between January 1, 1952, and October, 1954, for which she had been paid $7 per week, leaving a balance due of $1,184; (3) for 66 weeks between October 15, 1954, and January 31, 1956, for which she had been paid $10 per week, leaving a balance due in the sume of $330.
The case was tried in the circuit court upon the following stipulation of facts:
'The parties, Grace Whalen, claimant, and Oliver J. Lenhardt, Executor of the Estate of Anna Lenhardt, Deceased, do hereby agree that the following facts are true:
'Claimant, who was barred by statute from testifying, produced two witnesses who testified as follows:
'After the death of William Kunz in April of 1949 and until the death of Agnes Kunz in October, 1954, the property was owned by Agnes Kunz, mother of claimant, and by claimant Grace Whalen and her husband Hilary Whalen, each owning a one-third undivided interest.'
From appellant's brief it appears that her sole complaint is that the trial court erred in not finding in her favor. The respondent seeks an affirmance on the ground that claimant has failed to offer proof that she ever rendered any service to deceased or that claimant alone furnished room and board to deceased.
Since this was a jury waived case, it is our duty to review the evidence and reach our own conclusions on the facts, and to render such judgment as in our opinion is justly warranted by the evidence.
The services claimed to have been rendered consisted of furnishing 'room and board' to the decedent during her lifetime. The only factual basis for this claim was the ownership of the property where the room and board were furnished. The record shows that during the entire time decedent lived on said premises the property was owned jointly by claimant and others. It therefore follows that any claim for compensation for the furnishing of living quarters to decedent based upon ownership of said property, was not due solely to claimant, but to the joint owners, and any action to recover same should have been prosecuted by all of said owners as joint obligees. Section 507.030 RSMo 1949, V.A.M.S.; Elmer v. Copeland, Mo.App., 141 S.W.2d 160, certiorari quashed State ex rel. Elmer v. Hughes, 347 Mo. 237, 146 S.W.2d 889; Nelson v. Massman Construction Co., Mo.App., 120 S.W.2d 77; Peters v. McDonough, 327 Mo. 487, 37 S.W.2d 530; Ellis v. Springfield-Southwestern R. Co., 130 Mo.App. 221, 109 S.W. 74; White v. Dyer, 81 Mo.App. 643; Koller v. Shannon County Bank, Mo.App., 74 S.W.2d 271; Frumberg v. Haderlein, 167 Mo.App. 717, 151 S.W. 160; Borden v. Landes, Mo.App., 253 S.W.2d 853; Schulte v. Crites, Mo.App., 318 S.W.2d 387; Clark v. Cable, 21 Mo. 223; Rainey v. Smizer, 28 Mo. 310.
But appellant contends that the objection of misjoinder should have been raised...
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