Simms' Estate, In re

• Decision Date: 08 January 1968
• Docket Number: No. 2,No. 52575,52575,2
• Citation: 423 S.W.2d 758
• Parties: In the Matter of the ESTATE of William Lewis SIMMS, Deceased. Leslie Clay SMITH, Appellant, v. COMMERCE TRUST COMPANY, Co-Executor, Respondent
• Court: Missouri Supreme Court

Page 758

423 S.W.2d 758

In the Matter of the ESTATE of William Lewis SIMMS, Deceased.

Leslie Clay SMITH, Appellant, v. COMMERCE TRUST COMPANY, Co-Executor, Respondent.

No. 52575.

Supreme Court of Missouri, Division No. 2.

Jan 8, 1968.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 12, 1968.

Rufus Burrus, Independence, for appellant.

Johnson, Lucas, Bush & Snapp, Hilary A. Bush, Kent Snapp, Kansas City, for respondent.

STOCKARD, Commissioner.

Leslie Clay Smith, herein referred to as 'Claimant,' filed a claim in two counts against the estate of his uncle, William Lewis Simms, deceased, in the probate court of Jackson County. The first count was for services rendered to the deceased during his lifetime. The second was to determine title to a bank account in the amount of $25,400.07. The judgment of the probate court as to Count I was in favor of claimant in the amount of $3,959.00; as to Count II it was in favor of the estate. Claimant appealed to the Circuit Court of Jackson County, a separate trial was had as to Count II, and the judgment of the probate court as to that count was affirmed. Claimant has appealed to this court.

The record before the probate court is rather voluminous, and it pertained to the issues of Count I as well as to Count II. That testimony is before this court. Additional testimony was taken before the trial court, including testimony of the claimant to which respondent objected on the basis of the 'dead man's statute.' Claimant contended that the prohibitions of that statute had been waived. The trial court permitted the testimony, reserved its ruling, and subsequently sustained the objection and excluded the testimony from its consideration, but commented that if it had taken the testimony into consideration it 'would not have changed or modified the findings of fact, conclusions of law, and judgment.'

Claimant contends on this appeal that the trial court erred in sustaining the objection to his testimony, but he admits that 'as a practical matter it may be that such error was harmless.' We do not need to decide whether the ruling of the trial court was error. The testimony is before us, we review this court tried case de novo, and we shall do so taking into consideration the testimony of claimant and shall afford it such weight as we determine it merits.

The evidence clearly establishes that for several years, at least ten or twelve, before the death of Mr. Simms, he and his nephew, claimant in this case, occupied a confidential relationship. Claimant assisted Mr. Simms when ill, paid bills for him and performed many helpful tasks that his uncle could not do, or which would have been inconvenient for him to have performed. For some undisclosed period of time claimant had authority to write checks on a checking account of Mr. Simms in the Commerce Trust Company.

In 1951 Mr. Simms executed a will which had been drafted by Mr. David Dabbs a lawyer and personal friend of Mr. Simms. This will was in effect at the time of Mr. Simms' death, subject to the provisions of a codicil hereafter mentioned, and was admitted to probate. The will was before the probate judge as a part of the file, but we do not find its complete terms in the record before us. However, it did provide for a trust with two sisters of Mr. Simms being named as beneficiaries. Both of these sisters died prior to April 1962. During that month Mr. Simms arranged for Mr. Dabbs to bring the will to his home, and Mr. Simms wanted to know if he would have to write a new will in view of the death of his two sisters. He was advised by Mr. Dabbs that the provision for a trust was 'obsolete' and a new will was not necessary. According to Mr. Dabbs, Mr. Simms then read the will 'line by line' and stated that it provided for exactly what he wanted. In July 1962, or shortly thereafter, Mr. Simms called Mr. Dabbs on the telephone and asked him if he was 'sure' that he did not need to change his will by reason of the death of his two sisters, and he was again assured that no change was required. Mr. Simms again stated that with the trust provision being obsolete the will was 'just what he wanted.' This will provided that the Commerce Trust Company should be executor and that Mr. Dabbs should be attorney for the estate. Claimant was named as a beneficiary.

In October 1962 Mr. Simms was a patient as St. Luke's Hospital. According to claimant, Mr. Simms told him that he wanted him (claimant) to arrange to have a power of attorney prepared designating claimant as his attorney in fact to transfer various bank accounts to one account, and 'he wanted them put in my name.' Claimant asked if he had an attorney, and Mr. Simms said he did not. Claimant then asked 'how about the attorney who drew your will,' and, according to claimant, Mr. Simms replied, 'I haven't heard from him for years and as far as I know he may be dead.' Mr. Simms then asked if claimant knew an attorney, and he replied that he did and he mentioned that Mr. James B. Nourse handled some legal work for the business where he was credit manager, and Mr. Simms said, 'Well, have it done.'

On October 8 claimant told Mr. Nourse that Mr. Simms wanted to see him, and Mr. Nourse went to the hospital that day. According to Mr. Nourse, Mr. Simms said to him, 'I want a will,' and further stated that he was single, 86 years of age, and facing a prostate operation. He said that he 'had in mind' remembering four of his nephews and nieces and that he desired that claimant be the executor. Mr. Simms' further instructions, according to Mr. Nourse were as follows: 'Immediately I want a power of attorney to take care of the present situation. I don't want to be bothered with any details. Clay Smith (claimant) knows what I want. There are quite a few of bank accounts. I want them placed into one account. It will be a checking account. If there is anything after I get through all of this and after Clay has taken care of me, I deem Clay to be a son. Then I want Clay to have whatever remains of the cash in bank.'

Pursuant to these instructions, Mr. Nourse prepared a power of attorney, using a printed form, providing that Mr. Simms thereby named and appointed 'L. Clay Smith true and lawful attorney for me and in name, place and stated to make deposits and make withdrawals in each and every one of my bank accounts, namely (here were listed four banks in Kansas City, one in Columbia, Missouri, one in Boonville, Missouri, and one in Wichita, Kansas) to receive and pay out moneys for my account or otherwise as may be deemed best by my attorney in fact, to enter into and upon and take possession of each and everyone of my safe deposit boxes wherein my personal papers are located and kept, specifically in the Commerce Trust Company and the Plaza National Bank; to care and provide for my maintenance, care and support, giving and granting to my said attorney full power and authority to do and perform all and every act and think whatsoever, requisite and necessary to be done in and about the premises, as fully to all intents and purposes, as I might or could do if personally present at the doing thereof, with full power of substitution or revocation, hereby ratifying and confirming all that my said attorney, or his substitute, may or shall lawfully do, or cause to be done, by virtue hereof.' This power of attorney was signed by Mr. Simms on October 11, 1962, before two witnesses one of whom was his medical doctor, and was acknowledged by Mr. Nourse.

On November 5, 1962, Mr. Nourse went to the Commerce Trust Company with claimant, apparently having the executed power of attorney with them, and talked to Mr. Wuerth at the bank. According to Mr. Nourse and claimant, it was at the suggestion of Mr. Wuerth that an account was opened at the Commerce Trust Company in the name of 'L. Clay Smith, Trustee.' Thereafter, the funds from all of the banks listed in the power of attorney were transferred to this trustee account except the funds in the accounts in the name of Mr. Simms in the Commerce Trust Company and in the bank at Boonville, Missouri. Claimant testified the 'didn't see any reason' to transfer the account in the Commerce Trust Company to the trustee account because he had 'connection' with that account. This was the account upon which he previously had the authority to write checks. The total amount transferred to the account in the name of 'L. Clay Smith, Trustee' was $29,189.97. Prior to the death of Mr. Simms, claimant wrote several checks, all but one of which were to pay expenses and bills of Mr. Simms or to provide money to him for his personal use. One check in the amount of $1,309.00 was to claimant, and he testified that it was for 'services for two months,' and that it was made 'on the suggestion' of Mr. Simms to 'take care of my time.' There is no contention tht claimant improperly used any of the funds. The balance in the account at the death of Mr. Simms on December 12, 1962, was $25,400.07.

On October 10, Mr. Nourse learned that Mr. Simms already had a will, and apparently claimant furnished him a copy. Claimant testified that Mr. Simms wanted him to be the executor of his estate, but claimant told him that he 'wouldn't want to be the executor' and that the Commerce Trust Company was executor. Mr. Simms then said, 'Well, I'ii make you coexecutor.' According to claimant, Mr. Simms said that he wanted Mr. Nourse to be attorney for his estate. Mr. Nourse prepared a codicil which provided that claimant was to be coexecutor of the estate with the Commerce Trust Company, and that Mr. Nourse was to be the attorney. It made no other changes in the will. This codicil was executed on October 13. Mr. Nourse testified that he had 'an uncompleted instruction to prepare a will,' but he determined that it should be handled in the interim by the codicil.

There is some confusion in the record concerning the preparation of a second codicil. At one time Mr. Nourse testified...