Rhodes v. Rhodes' Estate

• Decision Date: 06 February 1952
• Docket Number: No. 7016,7016
• Citation: 246 S.W.2d 98
• Parties: RHODES v. RHODES' ESTATE
• Court: Missouri Court of Appeals

Page 98

246 S.W.2d 98

RHODES v. RHODES' ESTATE

No. 7016.

Springfield Court of Appeals, Missouri.

Feb. 6, 1952.

J. Grant Frye, Cape Girardeau, for appellant.

Rush H. Limbaugh, Cape Girardeau, for respondent.

McDOWELL, Judge.

This appeal is from a judgment of the Circuit Court of Bollinger County, Missouri, sustaining a motion to dismiss plaintiff's petition because it failed to state a claim.

The action is in equity. The essential allegations of the petition may be summarized as follows: Charles E. Rhodes died intestate in Bollinger County, Missouri, November 7, 1947, leaving appellant, his widow, and two daughters, Elizabeth Rhodes and Marie Rhodes, as his heirs. November 10, 1947, the day after the funeral of deceased, appellant went with her daughter, Elizabeth Rhodes, to Lloyd S. Morgan, the undertaker, who had furnished funeral services for the deceased, and, upon being advised by said daughter and undertaker that she was legally liable for the funeral expenses personally and that it was her duty to pay same, paid the funeral bill in the sum of $267.87.

May 10, 1948, appellant, at the request of her daughter, Elizabeth, purchased a tombstone for the grave of her husband from T. E. Graham and, on July 15, 1948, appellant paid, out of her own funds, $168.30 for said tombstone.

The petition alleges that appellant was illiterate and lived remote from the county seat and from legal advice; that at the time she paid the funeral expenses of $267.87 to the undertaker she relief solely upon the representations of Elizabeth Rhodes, who represented to her at the time that she had consulted a lawyer, who had advised her that it was the duty and legal obligation of appellant to pay such funeral expenses because appellant had received a bank deposit account in the joint names of appellant and deceased and because the deceased left no debts other than the funeral expenses. Appellant also pleads that she relied upon the advice of the undertaker, Morgan, who talked to appellant and her daughter, Elizabeth, and after they informed him of all the facts relative to the estate, that is, that the deceased left 120 acres of land, partly in cultivation, which was of little value and constituted the home on which she and deceased had lived many years, and that the personal estate consisted only of a small amount of crops, hay and livestock and that after such conversation with Morgan, he also advised appellant that it was her legal duty to pay such funeral expenses. Appellant pleads that, relying upon such representations made by her daughter and Morgan, she paid said funeral expenses.

Appellant pleads that just prior to May 10, 1948, Elizabeth Rhodes requested appellant to purchase a tombstone for deceased, representing to her that it was her duty and obligation to purchase and pay for the same; that her said daughter, at the time, represented that she had been so advised by an attorney. Appellant then pleads that relying upon, and believing such representations, she made arrangements to buy one on May 10, and paid for the same July 15, 1948.

The petition states that on May 18, 1948, appellant consulted an attorney and, on May 24, 1948, appellant was appointed administratrix of the estate by the Probate Court of Bollinger County, and notice of the granting of letters of administration was duly published and appellant continued to serve as administratrix until the filing of this action. The petition states that in February, 1949, appellant advised her attorney of the circumstances concerning the payments made to Morgan and Graham and, for the first time, learned that those obligations were obligations of the estate and not of appellant.

The petition then pleads that her attorney sent Morgan and Graham, each, a demand form for the amount of the funeral expenses and of the tombstone and advised each of them that appellant had made payments under the belief that she was personally liable and requesting them to make demands against the estate for payment thereof; that she stated to Morgan and Graham they may act as trustees for the money paid or as a mere depository therefor. She informed them that she was entitled to the money back but they may continue to act as depository or trustee for the money so paid until their demand was allowed by the Probate Court and they could then sign and return to appellant receipts therefor showing payment.

The petition then alleges that appellant informed Graham that he could keep the money paid him until after the demand was allowed as trustee for appellant. Graham executed the demand May 10, 1949, which demand was exhibited to appellant May 17, 1949, and allowed by the court May 26, 1949. Graham's receipt was returned and is now in the files of the Probate Court.

Morgan was informed the could retain the money received, considering himself as a trustee pending the allowance by the court of his demand. He was informed that, after the demand was allowed, he could execute a receipt to the administratrix for the money he had already received. Morgan made demand for the funeral expenses which was, by the court allowed, May 27, 1949, and receipt was executed, which is now in the files of the court.

The petition then states that on September 20, 1949, Elizabeth Rhodes filed affidavits in accordance with 1949 Mo.R.S. 464.310, V.A.M.S., stating that the demands of Morgan and Graham had been improperly allowed and asking the court to set such aside; that the court did vacate its orders of allowance on December 23, 1949; that Morgan and Graham, at the request of Elizabeth Rhodes, withdrew their demands and retained the money paid by appellant.

An appeal was taken from the order and judgment of the Probate Court, setting aside such allowances. The Circuit Court refused to entertain such appeals on the ground that it had no jurisdiction.

The petition then prays that an administrator ad litem be appointed to represent the estate of deceased in these proceedings; that she may be allowed, in her final settlement of the deceased's estate to take credit for the payments made to the said Morgan and Graham; and for such other orders as to the court shall be deemed meet and just.

The law governing the question as to whether or not a petition states a cause of action is clearly discussed in DeVault v. Truman, 354 Mo. 1193, 194 S.W.2d 29, 31, as follows: 'We find no practical difference between a 'failure to state a claim upon which relief can be granted' (Civil Code, Laws 1943, p. 375, Sec. 66, Mo.R.S.A. Sec. 847.66 [V.A.M.S. Sec. 509.340]) and a failure to state a cause of action, as formerly understood. Gerber v. Schutte Inv. Co., Mo. [1246], 194 S.W.2d 25. Whether the court erred in sustaining the motions to dismiss depends upon whether the petition contains a 'statement of the facts showing that the pleader is entitled to relief.' Code of Civil Procedure, Laws 1943, p. 369, Sec. 36, Mo.R.S.A. Sec. 847.36 [V.A.M.S. Sec. 509.050]. It is generally true that a plaintiff must allege the ultimate facts which must be proven in order to entitle him to recover. Hutcherson v. Thompson, 343 Mo. 884, 123 S.W.2d 142, 146; Rositzky v. Rositzky, 329 Mo. 662, 46 S.W.2d 591, 595; Lawson v. Higgins, 350 Mo. 1066, 169 S.W.2d 881. In determining whether the petition states facts 'showing that the pleader is entitled to relief,' we must consider the petition as a whole, with all of its several allegations. Benner v. Terminal R. R. Ass'n of St. Louis, 348 Mo. 928, 156 S.W.2d 657, 660; State ex rel. Peet v. Ellison, Mo.Sup., 196 S.W. 1103, 1106. We may disregard general allegations which are disproven by specific allegations. Dritt v. Snodgrass, 66 Mo. 286, 296, 27 Am.Rep. 343. The construction of the petition must be such 'as to do substantial justice.' Civil Code, Laws 1943, p. 373, Sec. 57, Mo.R.S.A. Sec. 847.57 [V.A.M.S. Sec. 509.250]. If it clearly appears from the face of the petition that appellant's cause of action, if any, is barred by the applicable statute of limitations, the motion to dismiss was properly sustained. Woodruff v. Shores, Mo. , 190 S.W.2d 994 .' Therrien v. Mercantile-Commerce Bank & Trust Co., 360 Mo. 149, 227 S.W.2d 708.

We submit that the duty of this court, in determining whether or not the trial court erred in sustaining respondent's motion for a directed verdict because the petition failed to state a cause of action, is clearly set out by the law above stated. We must consider the petition as a whole with all of its several allegations giving such construction thereto as will do substantial justice.

There is but one issue actually involved in this case and that is, does the petition state facts sufficient for equitable relief?

The gist of the action, as pleaded in the petition, is that appellant, being an uneducated woman and living in the country quite a distance from where she could receive legal advice, was advised by Elizabeth Rhodes, one of the heirs to the estate, that, because the estate contained only 120 acres of land, which had been used as a homestead by deceased and appellant and was of little value, and a small amount of personal property, and since appellant and deceased had a joint bank account, it was the duty of appellant to pay the funeral expenses and that she had been so advised by an attorney, with the further allegation that Elizabeth Rhodes took appellant to the undertaker, Morgan, and discussed the question with him, and after he was advised of the estate left, he, likewise, advised appellant that it was her...