Roots v. Reid
| Decision Date | 08 August 1977 |
| Docket Number | 28265,Nos. 28264,s. 28264 |
| Citation | 555 S.W.2d 54 |
| Parties | In the Matter of the alleged incompetency of Harriet Margaret Roots. Harriet Margaret ROOTS and Thomas J. Nurnberger, Appellants, v. Robert L. REID, Jr., Respondent. |
| Court | Missouri Court of Appeals |
Dale, Flynn, Bauman & Liles, Joseph L. Flynn, St. Joseph, for Roots.
Grace S. Day, St. Joseph, for Nurnberger.
Michael Paul Harris, St. Joseph, for respondent.
Before DIXON, P. J., and WASSERSTROM and TURNAGE, JJ.
This action began in the probate court with an application filed by Robert L. Reid Jr., the public administrator, and an application by Thomas J. Nurnberger, a nephew, in which each requested to be appointed the guardian of the person and estate of Harriet Margaret Roots. The probate court appointed the public administrator.
On appeal to the circuit court, and after a full hearing in that court, the public administrator was appointed as guardian of both the person and estate of Mrs. Roots. This appeal is by Mrs. Roots and Thomas Nurnberger.
Roots and Nurnberger contend in this court the circuit court erred in appointing the public administrator when Nurnberger as a blood relative was fully qualified to serve as guardian. Reversed.
At the hearing in the circuit court a psychiatrist who had treated Mrs. Roots testified she was psychotic and was suffering from cerebral arteriosclerosis. He stated in his opinion she was not able to handle her affairs and was in need of a guardian. The court made a finding that Mrs. Roots was incompetent. That finding is not brought into question on this appeal and will not be further noticed.
The only question on this appeal is the propriety of the appointment of the public administrator as guardian of the person and estate of Mrs. Roots in preference to the appointment of Nurnberger, her nephew.
In the circuit court hearing, the public administrator testified he was contacted by the probate judge about Mrs. Roots after the St. Joseph Police Department had contacted the judge about a number of disturbance calls related to the Roots' home. At that time Mr. Roots was alive.
As result of the knowledge acquired from the probate judge, the public administrator filed an application for the involuntary hospitalization of Mrs. Roots. This application was later dismissed, but in the meantime she had been admitted to the state hospital in St. Joseph. Outside of making a visit to the Roots' home after Mrs. Roots left the state hospital, the public administrator had little, if any, contact with Mrs. Roots and was generally unfamiliar with the nature and extent of her property.
Thomas Nurnberger stated he was a nephew of Mrs. Roots by virtue of his mother and Mrs. Roots being sisters. He stated he lived in St. Louis where he was a school teacher. He held both a bachelors and masters degree in education and was working on his doctorate.
Living with Nurnberger in St. Louis was another sister of Mrs. Roots, Jane Pinder. Nurnberger was single and his Aunt Jane was apparently a single lady who had worked as an R.N. in St. Joseph but had retired. On her retirement she went to live with Nurnberger and helped with the household duties there.
When Nurnberger learned Mrs. Roots had been placed in the state hospital, he immediately went to St. Joseph. He talked with her private physician and with the psychiatrist in charge of her case in the state hospital and obtained the approval for her release. Subsequently, Nurnberger took Mrs. Roots to St. Louis to make her home with him and her sister, Jane.
When Nurnberger returned to St. Joseph for the hearing in the circuit court, the psychiatrist again examined Mrs. Roots and testified her psychotic condition had largely disappeared, but her arteriosclerosis continued as a permanent condition.
Nurnberger lives in a four-bedroom, large home, on a half-acre tract in St. Louis. He stated he owned his home and owned and managed a stock and bond portfolio. He had returned to St. Joseph on occasion when he learned of any need on the part of Mrs. Roots or her husband, and had given his name to the police department to be contacted in case there was any need.
Shortly after Nurnberger obtained Mrs. Roots' release from the state hospital, Mr. Roots died. Apparently Mr. Roots had had a drinking problem, but the only specific complaints about which Nurnberger had been informed related to some disturbance about a shotgun.
Nurnberger stated in his early days he had lived about ten years with Mr. and Mrs. Roots while he attended school in St. Joseph. He was a graduate of a high school in that city and had attended junior college there.
Nurnberger told the court in detail of the property and assets belonging to Mrs. Roots, consisting of a savings account in St. Joseph and a bank and savings account in St. Louis which had been transferred from a St. Joseph bank. In addition, Mrs. Roots owned an apartment house and a home in St. Joseph; some real estate near Sugar Lake and a house in Maryville. Nurnberger also stated Mr. Roots had a bank account and savings account at his death and Mrs. Roots was the owner of these because the Roots had no children.
Nurnberger stated Mrs. Roots had lived in his home from May, 1975, until the hearing in circuit court in August. He stated she had about $250 per month income from social security but this went into her bank account. He stated he was furnishing all of her food, lodging and other needs without any payment. He had assisted her in having a new roof put on her home and in the payment of various bills.
Mrs. Roots testified before the circuit court and except for an inability to fully describe all of her assets, displayed an understanding of the questions propounded to her and gave coherent answers. She stated without equivocation she desired Nurnberger to be her guardian.
Jane Pinder also testified and told of the kind and considerate treatment which Nurnberger gave to her and to Mrs. Roots. She stated she was able to get around and was capable of taking care of her sister and since her sister had been in St. Louis her general health had improved and she had gained about 20 pounds from a rundown condition. She said Nurnberger took his aunts out to eat frequently and to visit friends. She stated the situation in the Nurnberger home with her and her sister was highly satisfactory and desirable.
In addition, a niece, another nephew, and another sister of Mrs. Roots testified. They all stated they were familiar with the situation of both Mrs. Roots and Nurnberger and his home in St. Louis. All stated they favored the appointment of Nurnberger as guardian of both the person and estate of Mrs. Roots.
In addition, a wife of one of...
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J.L.H., In Interest of
...appellate review of the exercise thereof.12 In Re Brinckwirth's Estate, 268 Mo. 86, 186 S.W. 1048, 1052 (Mo. banc 1916); Roots v. Reid, 555 S.W.2d 54, 57 (Mo.App.1977). See also Note, Vand.L.Rev. supra, at 762-63, for a candid proviso on adoptions by blood relatives--the best interests of t......
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Estate of Seabaugh, 12669
... ... Page 954 ... In three more recent cases, appealability of an order appointing a guardian was not even questioned. Roots v. Reid, 555 S.W.2d 54 (Mo.App.1977); Matter of Tepen, 599 S.W.2d 533 (Mo.App.1980); Hawthorne v. Patterson, 652 S.W.2d 252 (Mo.App.1983). Roots ... ...
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Estate of Davis, In re
... ... 2 This finding is consistent with those cases applying the common law rule granting a preference to close relatives, see e.g., Roots v. Reid, 555 S.W.2d 54 (Mo.App.1977) (nephew); In re Brinckwirth's Estate, 268 Mo. 86, 186 S.W. 1048 (Mo.1916) (uncles), and those cases ... ...
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Williams v. Williams
... ... Roots v. Reid , 555 S.W.2d 54, 56-57 (Mo. App. 1977) (indicating that 473.743 did not provide a statutory preference for appointment of family members, ... ...