State ex rel. Kinealy v. Hostetter

• Decision Date: 21 April 1937
• Docket Number: 35162
• Citation: 104 S.W.2d 303,340 Mo. 965
• Parties: State of Missouri at the relation of William B. Kinealy, Trustee and Winifred Bryan, Residuary Legatee, Under the Will of Sarah W. Flynn, Relators, v. Jefferson D. Hostetter et al., Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

104 S.W.2d 303

340 Mo. 965

State of Missouri at the relation of William B. Kinealy, Trustee and Winifred Bryan, Residuary Legatee, Under the Will of Sarah W. Flynn, Relators, v. Jefferson D. Hostetter et al., Judges of the St. Louis Court of Appeals

No. 35162

Supreme Court of Missouri

April 21, 1937

Writ quashed.

Wm B. Kinealy and C. L. deRenthel for relators.

(1) The opinion of the St. Louis Court of Appeals in finding that the testimony of this cause, as preserved in the record, is insufficient to establish an estoppel, none of the facts being set forth in said opinion, but being referred to as in the record, brings up for examination in this proceeding said abstract of the record and all of the facts as abstracted in said record. State ex rel. Quercus L. Co. v Robinson, 197 S.W. 79; State ex rel. Studebaker Corp. v. Trimble, 295 Mo. 677; State ex rel. Locke v. Trimble, 298 S.W. 785. (2) The opinion of the St Louis Court of Appeals in holding that the facts failed to show an estoppel as against Lawrence C. Flynn is in direct conflict with the controlling decisions of the Supreme Court. Moseley v. Bogy, 272 Mo. 319; Wood v. Trust Co., 265 Mo. 511; Stone v. Cook, 179 Mo. 563. (3) Said opinion of the St. Louis Court of Appeals, in affirming the action of the circuit judge and remanding the cause to the said circuit court, with directions to said court to set aside its order for another trial of this cause and to enter judgment sustaining the application of Lawrence C. Flynn for partial distribution of the estate of Sarah W Flynn, and to direct the payment to him by the executors in charge in the sum of $ 500 and interest, is in direct conflict with the following ruling and controlling decisions of the Supreme Court. Peper v. Peper, 241 Mo. 260; Fishback v. Prock, 242 S.W. 962; Haven v. Ry. Co., 155 Mo. 216; Galy v. United Rys. Co., 286 Mo. 503; Paving Co. v. Realty & Imp. Co., 270 Mo. 698; Porter v. Railroad Co., 28 S.W.2d 1035; Alt v. Dines, 227 Mo. 418; Hurley v. Kennally, 186 Mo. 225.

Geers & Geers for respondents.

(1) The opinion of the St. Louis Court of Appeals, finding that the testimony in this case is not sufficient to establish an estoppel is borne out by the testimony preserved in the record, and is not in conflict with the controlling decisions of the Supreme Court. Bretz v. Matney, 60 Mo. 444; Register v. Hensley, 70 Mo. 189; Spratt v. Lawson, 176 Mo. 175, 75 S.W. 642; In re Goessling's Estate, 230 S.W. 613; Loud v. St. L. U. T. Co., 298 Mo. 148, 249 S.W. 629; Collier v. Porter, 16 S.W.2d 55; In re Flynn's Estate, 67 S.W.2d 776; Id., 95 S.W.2d 1208; Bank v. Cook, 74 S.W.2d 846. (2) No acceptance of the will is required by our statute. Our law says the widower shall be presumed to acquiesce in his wife's will, unless within twelve months after probate, he chooses to renounce. His acceptance, however ofter repeated, amounts to nothing, unless by such acceptance the position of the parties has materially changed. Reddick v. Walsh, 15 Mo. 520; Spratt v. Lawson, 176 Mo. 175, 75 S.W. 642; Bretz v. Matney, 60 Mo. 444; In re Goessling's Estate, 230 S.W. 613; Eggers v. Eggers, 225 Mo. 116; Garesche v. Levering, 146 Mo. 436; Loud v. St. L. U. T. Co., 249 S.W. 629; Register v. Hensley, 70 Mo. 189; In re Flynn's Estate, 67 S.W.2d 776; In re Flynn's Estate, 95 S.W.2d 1208. (3) The opinion of the St. Louis Court of Appeals affirming the action of the trial court and remanding this cause with directions to the trial court to set aside its order for another trial and to enter a judgment sustaining the petition of Lawrence C. Flynn, for partial distribution, is in accord with the banc cases of the Supreme Court. Scott v. Cowen, 274 Mo. 398, 195 S.W. 732; Cole v. Ry. Co., 332 Mo. 999, 61 S.W.2d 348; Haven v. Ry. Co., 155 Mo. 216, 55 S.W. 1035; In re Flynn's Estate, 95 S.W.2d 1208. The statute directs the court to "Give such judgment as such court (trial court) ought to have given." Sec. 1063, R. S. 1929.

OPINION

Hays, C. J.

Certiorari to the St. Louis Court of Appeals to quash the record of that court made in determining an appeal from the Circuit Court of the City of St. Louis, which was taken from a judgment of the Probate Court of St. Louis granting Lawrence C. Flynn, widower of Sarah W. Flynn, deceased, a partial distribution of $ 500 out of her estate. These relators appealed from that judgment.

The funds of the estate were ample and available to pay it. Her last will had then been probated and letters granted thereon more than one year prior to the filing of the widower's petition for distribution; and within one year after the granting of the letters said widower had made his election, within the time and in the manner provided by statute, to renounce the provisions of said will.

On the appeal taken from the probate court judgment by the adverse parties, William B. Kinealy and Winifred Bryan (relators here), the circuit court first denied the petition and later sustained Flynn's motion for a new trial. From that order granting a new trial these relators took an appeal to this court. After hearing the same this court, for want of jurisdiction, certified the cause to said Court of Appeals. [In re Flynn's Estate, 92 S.W.2d 671.]

The challenged opinion of the Court of Appeals in this cause is reported in Re Flynn's Estate, 95 S.W.2d 1208. In it reference is made to that court's two former decisions, in which Lawrence Flynn was plaintiff and these relators were appellants. The first of the two causes was a proceeding for the statutory allowance to the widower for one year's support, which allowance was made by the probate court, and finally sustained by the Court of Appeals. [In re Flynn's Estate, 67 S.W.2d 771.] The second was a similar proceeding and was brought under the statute for $ 400 absolute property of the widower, and was finally determined (67 S.W.2d 776) by the Court of Appeals upon the same facts and upon the authority of the first decision, supra.

In the first (67 S.W.2d 772, 773) the testimony of Flynn and that of Kinealy is set out in detail in relation to the facts and circumstances upon which in that case the court determined that Flynn was not estopped to elect, as he did elect, under the statute.

In the present case the Court of Appeals referred to said prior cases, stated the nature of them, the issue of estoppel by election which was involved, the substance of the facts relating to that issue, and quoted the remainder of the opinion delivered in the first case. So, that court, in the opinion now under review, as in the prior cases, determined that Flynn did not become estopped from renouncing the will and electing to take under the law. In expressly determining anew the issue as to Flynn's estoppel by election, the Court of Appeals considered "the relation of the parties, the nature of the (will's) provisions, and his (Flynn's) ability or inability to acquire a full understanding of his rights under the will, and whether what he did, which is relied upon as creating an estoppel against him, was done through ignorance or with full knowledge of all the facts in relation to his rights and the effects of his action accepting the rent checks" (small sums -- approximately $ 300 in all). The court considered the size of the estate; the conflicting interests of Kinealy, who drew the will of his sister, the testatrix, which gave him power as trustee over Flynn's support and maintenance, and who was also interested as a legatee.

The court made its findings of the ultimate facts, and pointed, inter alia, to the testimony of Flynn as having been to the effect, "as shown by the record," that he was advised by Kinealy that his reception of the rent checks would not in any manner prevent him from renouncing the will; and to that of the executor, Kinealy, who denied that he made such statement but did admit that he did not give Flynn full information about his right to renounce the will in that he did not remember telling him he had a whole year in which to renounce. On the whole (of which we have undertaken to set out but a part), the court expressed themselves as satisfied that Flynn received the rent checks without understanding the effect or nature of the same, or where they came from, whether from the executor or trustee (one and the same person), nor did he realize that his receiving them might abridge or affect his rights to renounce the will; that his reception of them worked no injury or prejudice to the legatees nor caused them to do anything to their loss or disadvantage in the least; that, moreover, his statutory allowance of $ 400 and his allowance for a year's support, not then as yet made, constituted far more than sufficient to offset the amount represented by the rent checks.

The principal contention of the relators is that the challenged opinion, in deciding that the evidence was insufficient to establish estoppel, did not set forth any evidence but did refer to "the record" in said cause. As supporting the contention, they cite State ex rel. Quercus Lumber Co. v. Robinson, 179 S.W. 79; State ex rel. Studebaker Corp. v. Trimble, 295 Mo. 667, 677, 247 S.W. 119. And upon that proposition the relators submit that the abstract of the evidence and the relators' instruction given in the trial court, as preserved in relators' abstract of the record filed in the cause in the Court of Appeals, is before this court in this proceeding; citing State ex rel. v. Trimble, 300 Mo. 101, 253 S.W. 1014; State ex rel. v. Ellison, 281 Mo. 667, 220 S.W. 498; State ex rel. v. Trimble, 298 S.W. 782, 785.

The well-settled rule is that reference to the pleadings and instruction, in the opinion of a Court of Appeals, though it neither outlines the petition or answer nor sets out the substance of the...