Passman's Estate, Matter of, 59275

Decision Date05 May 1976
Docket NumberNo. 59275,59275
Citation537 S.W.2d 380
PartiesIn the Matter of the ESTATE of Doctor Harold PASSMAN, Deceased. The CITY NATIONAL BANK AND TRUST COMPANY, Executor, Appellant, v. Natalie GRAVES, Respondent.
CourtMissouri Supreme Court

Jerome T. Wolf and Edward A. Setzler, Spencer, Fane, Britt & Browne, Kansas City, for appellant.

James W. Jeans, Kansas City, Lantz Welch, Kansas City, for respondent.


This cause was transferred from the Court of Appeals, Kansas City District, to reconsider whether or not the standard burden of proof instruction, MAI 3.01, would adequately instruct a jury as to the burden placed on a party claiming an inter vivos gift after the death of the alleged donor. After reargument in this court, we agree with the Court of Appeals that it would not; and, that the admonition found in the Committee's Comment following MAI 3.01 that 'This instruction is not to be used in those rare cases where the proof must be 'clear, cogent and convincing" is consistent with the law as established in this state and must be followed. The opinion of Turnage, J., provides an accurate review of the relevant law as declared by this court and follows the dictates thereof by directing that: 'On retrial, MAI 3.01 should be modified to include at the appropriate place a statement that the evidence must be clear, (cogent) and convicing proof to convince the jury beyond a reasonable doubt.' (Emphasis added.) As noted therein, the italicized words--'beyond a reasonable doubt'--have been challenged as inappropriate to instructions in a civil case. This court is at liberty to recognize such criticism and correct what perhaps has been an erroneous approach to the problem. From this time forward, the phrase should not be used in instructions in civil cases. As modified, the opinion of Turnage, J., is adopted as the opinion of this court; which, without benefit of quotation marks, is as follows:

This case originated in the Probate Court of Jackson County with the filing by City National Bank & Trust Company (Bank), the executor of the estate of Dr. Harold Passman, of an affidavit for the discovery of assets against Natalie Graves (Graves).

Pursuant to the statutory procedure, the Bank filed interrogatories and Graves filed answers. This resulted in defining the property in controversy to be $15,000 in Sheraton Hotel Bonds, $20,000 in Southeastern Oklahoma Development and Gas Authority Bonds, together with a sofa and air conditioner. By answer to one of the Bank's interrogatories, Graves claimed she had given $5,000 in Sheraton Hotel Bonds to Dr. Passman for the purpose of selling the same and reinvesting in other bonds, but she had not received the bonds or cash from this transaction and thereby the estate was indebted to her in the sum of $4,022, which was the proceeds of the $5,000 bond after sale expenses.

The Probate Court found the issues in favor of the Bank and Graves appealed. On trial de novo to a jury in the circuit court, the jury returned a verdict in favor of Graves finding she was the owner of the $15,000 Sheraton Bonds, the $20,000 Southeastern Oklahoma Bonds, the sofa, the air conditioner, and was entitled to the $4,022 proceeds of the sale of the $5,000 Sheraton Bond. The Bank has appealed from the judgment entered on this verdict.

The evidence showed Dr. Harold Passman was a physician practicing in Kansas City, Missouri, who had been married to his wife, Louisa, for over twenty-five years. He had been married previously and had children by that marriage, but by his marriage to Louisa had two sons. In 1966 Graves became a patient of Dr. Passman and shortly thereafter was employed by him as a medical assistant. At about the same time Dr. Passman and Graves entered into a relationship which transcended the employer-employee status with the result that in October, 1967, Dr. Passman moved into Graves' house and lived there until his death in August, 1969.

In 1968 Dr. Passman rented a safety deposit box at the Wornall Bank in which he was listed as the owner with Graves as a deputy. About four months thereafter the ownership of this box was changed to show Graves as the owner and Dr. Passman as the deputy.

Graves testified in the Probate Court that Dr. Passman had given her the Sheraton Bonds in April or May, 1969. Betty Roth, an aunt of Graves, testified she was visiting Graves during the months of April and May of 1969 and observed that Dr. Passman was living there. She stated she confronted Dr. Passman and inquired as to what he was going to do for Graves and he stated he had given her $20,000 worth of bonds. In circuit court Graves testified the gift of the Sheraton Bonds must have been made on January 2, 1969, since that was the last recorded entry into the box prior to April or May. Graves testified Dr. Passman took the bonds from the safety deposit box at the time of the gift and stated he was giving them to her and she accepted them as a gift. She stated at that time she did not know the value of the Sheraton Bonds or the number of bonds actually given to her. Other evidence showed that on January 2, 1969, $5,000 of the Sheraton Bonds were in the custody of the Bank as a result of a pledge of such bonds by Dr. Passman as security for a loan. That loan was paid in March of 1969 and the $5,000 Sheraton Bonds were returned to Dr. Passman.

Graves testified that on another entry into the box in May, 1969, Dr. Passman again told her he was giving her the bonds and wanted her to have them. The bonds involved at this time were the Sheraton Hotel Bonds.

She further testified on July 1, 1969, she and Dr. Passman went to the box and clipped $750 in coupons from the bonds which she gave to Dr. Passman. In June, 1969, Dr. Passman purchased the $20,000 Southeastern Oklahoma Bonds and Graves testified these were delivered to him by his broker. She testified after the broker left the bonds, Dr. Passman told her he was giving these bonds to her and she stated she accepted them. These bonds were placed in the safety deposit box with the Sheraton Bonds. Both the Sheraton and Sougheastern Oklahoma bonds were bearer bonds.

Both Graves and Arthur Stoup, Dr. Passman's attorney, testified that Graves and Dr. Passman visited Mr. Stoup just a week prior to the doctor's death. Dr. Passman told Mr. Stoup he wanted to change his will in order to cut out his wife so that he could leave everything to his two children. Mr. Stoup advised the doctor it was impossible to cut Louisa completely out of his will. Since Mr. Stoup was leaving on vacation, nothing was done concerning the will and the next week Dr. Passman died. The will in effect at the time of Dr. Passman's death left his property in trust for his wife Louisa, with the property ultimately passing to his two sons.

Shortly before his death, Dr. Passman gave an order to his broker to sell $5,000 of the Sheraton Bonds and to purchase tax exempt bonds. After Dr. Passman's death, the tax exempt bonds were sold by the broker and $4,022 remained from this sale after the expenses. This amount was given to the Bank as part of the assets of the estate of Dr. Passman.

Graves' testimony was corroborated to the extent of the $20,000 Sheraton Bonds by the deposition of her aunt, Betty Both. The Bank produced Louisa Passman and her two sons and Dr. Passman's brother who all testified they had had numerous conversations with Dr. Passman and he never made any statement concerning any gifts to Graves. All of them were aware of Dr. Passman's relationship with Graves.

On this appeal the Bank complains first of the giving of MAI 3.01, the conventional burden of proof instruction. The Bank contends that since this case involved an inter vivos gift which was first claimed after the death of the donor, the court should have given an instruction to the effect that the proof of the gift must be clear, cogent and convincing which must exist beyond a reasonable doubt. The Bank relies upon a number of cases which have held the burden of proof and type of evidence to be as the Bank contends in this kind of case. Among these cases are Morley v. Prendiville, 316 Mo. 1094, 295 S.W. 563 (1927); Cremer v. May, 223 Mo.App. 57, 8 S.W.2d 110 (1928), and In re Petersen's Estate, 295 S.W.2d 144 (Mo.1956). Those cases indicate, as stated in Petersen, '. . . that where a gift is not asserted until after a donor's death, it is viewed with some suspicion, and the requirement of clear and convincing proof to establish it is particularly applicable.' 295 S.W.2d 144, l.c. 150(8--10).

In Morley the court set out a number of instructions which were given to the jury in a case in which an inter vivos gift was first claimed after the death of the donor. The burden of proof instruction in that case told the jury, "(t)he defendant must not only prove to your satisfaction and beyond a reasonable doubt and by evidence clearly unequivocal . . ." 295 S.W. 567(2). The court further stated at that same page, '(t)he instructions given show that the jury was fully directed as to the proof required to establish a gift and cautioned that, to justify a verdict for the defendant, they must be convinced beyond a reasonable doubt of the existence of the elements which make a valid gift.'

morley is the last case which has been cited or located in which the Supreme Court has passed upon an instruction to the jury in a case involving a gift first claimed after the donor's death.

In Cremer the court considered an instruction which told the jury 'the burden is on the defendant to prove the alleged gift by evidence which is clear and unequivocal and which convinces the jury of its truthfulness; . . .' 8 S.W.2d 110, l.c. 115(6).

A number of cases stated the evidence must convince the jury beyond a reasonable doubt. These include Albrecht v. Slater, 233 S.W. 8 (Mo.1921); St. Louis Union Trust Company v. Busch, 346 Mo. 1237, 145 S.W.2d 426 (1940) and Gillespie v....

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