Maynard v. McClellan
| Citation | 156 S.W.2d 770,236 Mo.App. 352 |
| Parties | STEPHEN A. MAYNARD, AI McCLELLAN AND MARY R. MAYNARD, PLAINTIFFS, RESPONDENTS, v. CHESTER McCLELLAN, EARL McCLELLAN AND IDA McCLELLAN, DEFENDANTS, IDA McCLELLAN, APPELLANT |
| Decision Date | 01 December 1941 |
| Court | Court of Appeals of Kansas |
Appeal from Sullivan Circuit Court.--Hon. Paul Van Osdol, Judge.
REVERSED AND REMANDED.
Cause reversed and remanded.
York & York, L. F. Cottey and L. E. Atherton for respondents.
Under the statute (Section 64) the interrogatories are the pleading of the administrator since they must be filed at his instance and cannot be filed by the parties who originally filed the affidavit mentioned in Section 63 of the statutes except at his instance. Brotherton v. Spence, 52 Mo.App. 664; Starks v. Lincoln, 316 Mo. 483, 291 S.W. 132. Allegations from appellant's answer to the interrogatories are mere legal conclusions and do not properly plead estoppel. Weise v. Moore, 22 Mo.App 530, 537; Gentry v. Gentry, 122 Mo. 202; Garesche v. Levering Inv. Co., 146 Mo. 436. Acts relied upon to create estoppel must be absolute and unequivocal. National Match Co. v. Storage and Ice Co., 227 Mo.App. 1115; Grafeman Dairy Co. v Northwestern Bank, 315 Mo. 849. Death operates as a dissolution of a partnership. The Exchange Bank v Tracy, 77 Mo. 594, l. c. 599; Groves v. Aegerter, 42 S.W.2d 974, l. c. 979.
P. M Marr for appellant.
(1) The motion for judgment on the pleadings should have been denied: (a) Because the facts pleaded in the answer controverted the allegations of the affidavit and the attendant interrogatories; issues of fact were raised. Sullivan v. Bank of Harrisonville (Mo.), 293 S.W. 129, 131; Baker v. Lamar (Mo. App.), 140 S.W.2d 31; Kemper v. Berkley, 79 Mo.App. 578, 584; State ex rel. Atty.-Gen. v. Hardware Co., 109 Mo. 118; In re Fenn, 108 S.W.2d 369, 371; Spencer v. Barlow, 319 Mo. 835, 5 S.W.2d 28. (b) Because the facts pleaded in the answer, being admitted by the motion, constitute a complete defense to the charge of concealing assets of the estate. (c) Because the facts pleaded in the answer, and admitted by the motion, show that plaintiffs are estopped by their agreements, acts, and general conduct from charging that Ida McClellan wrongfully carried on the business and concealed assets of the estate. Randolph v. Moberly Hunting & Fishing Club, 321 Mo. 995, 15 S.W.2d 834, 839, 21 C. J. 1152; Hunter v. Whitehead, 42 Mo. 524. (d) Because upon the death of John B. McClellan his widow, heirs, and the only surviving partner, the appellant Ida McClellan, being the only persons interested, had a right to handle said estate as they might and did agree, no creditors being involved. Bell v. Bank, 188 Mo.App. 383; In re Landgraf's Estate, 183 Mo.App. 251, 168 S.W. 268; Griesel v. Jones, 123 Mo.App. 45, 99 S.W. 769. (e) Because, regardless of whether any facts of defense or estoppel are pleaded against the plaintiffs, the answer (answer to interrogatory No. 35) specifically sets out that one of the original partners, George W. McClellan, who died testate in 1930, by the terms of his will set out in the answer, constituted the appellant, Ida McClellan, a joint trustee with Eliza E. McClellan (now deceased), and John B. McClellan (the deceased partner herein) during the lifetime of each of them, giving the specific power to each of them to "buy, sell, use and handle" his one-fourth interest in the partnership property "as they see fit," and as to such one-fourth Ida McClellan as the surviving trustee had a right to handle the sum as she saw fit, and the court had no jurisdiction in this action to render judgment against her for any part of such interest. (f) Because the answer does not plead mere legal conclusions, and the trial court fell into the common error of mistaking inferences of fact for conclusions of law. Russell Grain Co. v. Wabash Ry. Co., 114 Mo.App. 488, 493; Nichols v. Nichols, 134 Mo. 187, 35 S.W. 577; DeRuntz v. Relief Assn., 180 Mo.App. 1, 162 S.W. 1053; Clark v. Brotherhood of Locomotive Firemen, 99 Mo.App. 687, 74 S.W. 412; Glover v. Liverpool & London & Globe Ins. Co., 193 Mo.App. 489, 186 S.W. 583; Duff v. Eichler, 336 Mo. 1164, 82 S.W.2d 881.
This is a proceeding for the discovery of assets, instituted by the respondents against the appellant, Ida McClellan. The proceeding originated in the Probate Court of Putnam County, and was certified to the circuit court of that county because the probate judge was a material witness, and thereafter the cause was transferred to the circuit court of Sullivan County.
The cause originated by Stephen A. Maynard, Ai McClellan and Mary R. Maynard, respondents herein, filing an affidavit in the probate court for the purpose of discovering assets alleged to be held by Chester McClellan, Earl McClellan and Ida McClellan, which assets belonged to the estate of "McClellan Heirs," a co-partnership (John B. McClellan, deceased, being one of the partners). Luther E. Proffer was the duly appointed, qualified and acting administrator of said partnership estate at the time of the filing of such affidavit. To this affidavit, the defendants waived service of notice, entered their appearance, and filed a general denial for answer. Thereafter, the affiants filed interrogatories consisting of thirty-five questions, as provided by Section 64, Revised Statutes of Missouri, 1939. The defendants filed answers to such interrogatories (Section 66, R. S. Mo. 1939), whereupon the affiants, at the instance of the administrator, filed motion for judgment on the pleadings, because "the second amended answer filed herein admits and confesses all the facts alleged in petitioners' interrogatories and affidavit; and the facts set up in said answer in avoidance of petitioners' cause of action are insufficient in law to constitute a defense." The trial court sustained this motion and rendered judgment against Ida McClellan alone for the sum of $ 2002.36. Motions for new trial and in arrest were filed, overruled, and appeal granted to this court.
The facts giving rise to this controversy can be briefly stated as follows:
In 1895, E. N. McClellan died intestate, the owner of approximately 335 acres of real estate and certain personal property. He left eight children. Some four or five years after his death, five of the children purchased the interest of the other three in said property, and those five continued to operate the farm and purchased additional land from time to time. In 1923, one of the five died, single and intestate, and the other four purchased from her heirs their interest in her estate and continued to operate the farm. In 1930, George McClellan, one of the four partners, died single and testate, and his will provided that his one-fourth interest in all of the lands and personal property should be held in trust by his sisters, Eliza McClellan and Ida McClellan, and his brother, John B. McClellan, during the life of each and every one of them, and authorized them during their lifetime to buy, sell, use and handle his one-fourth interest in the partnership property as they saw fit, and after the death of the last of the three, then his property was to go to certain named persons. In 1932, the sister, Eliza McClellan, died single and intestate, and from 1932, until June 6, 1934, Ida McClellan (appellant) and John B. McClellan continued the operation of the farm and the management of all the personal property. On June 6, 1934, John B. McClellan died, leaving his widow, Blanche McClellan, but no children. From June 6, 1934, until about November 16, 1937, Ida McClellan (appellant), continued the operation of the farm and the management of the personal property under the conditions and circumstances set out in her answers to the interrogatories, which will be noted later.
On November 16, 1937, Luther E. Proffer, by agreement of all the parties interested in said partnership estate, was appointed administrator and in due time Ida McClellan (appellant) delivered to him the personal property which she then had in her possession, and appraised at the total sum of $ 7166.09. This proceeding seeks to compel the said Ida McClellan to account for the management of the partnership property between June 6, 1934, and the time of the appointment of the administrator.
In its judgment the trial court made this finding:
Based upon that finding, the court then proceeded in its judgment to charge the appellant with certain items of property and money unaccounted for, which belonged to the partnership estate, the aggregate amount of which was $ 3058.47; and the court also found that the appellant was entitled to certain credits which totalled $ 1056.11, leaving the balance due the administrator of the partnership estate the sum of $ 2002.36, for which judgment was entered. Therefore, we must determine whether appellant's answers to the interrogatories raised issues of fact by proper pleading.
The first interrogatory is:
"Did the partnership designated in the above caption own any personal property between the 22d day of December, 1930, and the 16th day of November, 1937?"
Appellant answered that question in the affirmative.
The second interrogatory is:
"If your answer to question (1.) is YES, then give as complete and detailed a list and description as possible of all items of personal property owned by said partnership between said dates?"
The material part of appellant's answer to that interrogatory is:...
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