Stickler's Estate, Matter of

• Citation: 551 S.W.2d 944
• Decision Date: 26 May 1977
• Docket Number: No. 10198,10198
• Parties: In the Matter of the ESTATE of Ada STICKLER, Deceased. FIRST CHRISTIAN CHURCH OF DEXTER, a corporation, and W. E. Babb, Jr., Plaintiffs-Respondents, v. Adeline LEAZENBY, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 944

551 S.W.2d 944

In the Matter of the ESTATE of Ada STICKLER, Deceased.

FIRST CHRISTIAN CHURCH OF DEXTER, a corporation, and W. E.

Babb, Jr., Plaintiffs-Respondents, v. Adeline LEAZENBY, Defendant-Appellant.

No. 10198.

Missouri Court of Appeals, Springfield District.

May 26, 1977.

Paul McGhee, James E. McGhee, McGhee & McGhee, Dexter, for defendant-appellant.

Powell, Ringer & Ringer, Dexter, for plaintiffs-respondents.

PER CURIAM.

May an absentee, who should have been joined as a party to a lawsuit but was not, emerge the victor? Under the unsavory facts here, this court answers the question in the affirmative.

This action was commenced by the filing of a "Petition to Discover Assets" (§ 473.340 V.A.M.S.) in the Probate Court of Stoddard County, Missouri. By agreement of the parties it was certified to the circuit court of that county for a nonjury trial. The petitioners, respondents here, were First Christian Church of Dexter, a corporation, ("the church"), and W. E. Babb, Jr. ("Babb"), both of whom were named as beneficiaries in the will of Ada Stickler ("Ada"), deceased. The executrix of the will of Ada Stickler is Adeline Leazenby ("Adeline"), who was also a beneficiary.

Ada's will was admitted to probate on September 13, 1973. The will, which was dated November 17, 1970, devised "the house and furnishings located at the corner of Vine and Poplar Streets, Dexter, Missouri," to the church, and "the house at 26 South Hickory, Dexter, Missouri," to Babb. When the will was executed Ada owned 225 shares of stock in the Citizens Bank of Dexter. The will provided that one-half of that stock was given to the church and the other half to Nellie Babb. Nellie Babb is the mother of Babb and the latter is the assignee of Nellie's interest.

On March 27, 1973, Ada, who was 91 when she died the following August 19, executed a power of attorney, broad in scope, appointing Adeline as her attorney in fact. This instrument was prepared by an attorney in Kenosha, Wisconsin, where Ada was temporarily residing. Adeline was present when the attorney drew the document, although Ada was not.

On March 29, 1973, Adeline, using the power of attorney, obtained access to Ada's safety deposit box in the Citizens Bank of Dexter and removed from it the 225 shares of the bank stock. Adeline sold 50 shares to Margaret Rendleman and 175 shares to Ray Rainey for a price of $105 per share, admittedly a reasonable value, and received for the stock $23,625. Adeline deposited the $23,625 in her own account in a savings and loan institution in Dexter.

On April 17, 1973, Adeline, using the power of attorney, sold the two houses, left under the will to the church and Babb respectively, to Claude Arnold and his wife for $11,000 from which a commission of $1,000 was paid to real estate agent Willis Conner. Conner testified that the church property was sold for $6,000 and the Babb property for $5,000, their respective reasonable values, and that Arnold paid for the two tracts with one $11,000 check. Adeline deposited the $10,000 in her own account at a savings and loan institution in Dexter.

On April 4, 1973, Ada wrote a letter to Nellie Babb in which Ada said, "I think Adeline has tricked me out of all my estate." ¹

According to the inventory filed by Adeline in the probate court, Ada's estate consisted only of seven government bonds having a total value of $7,850.40.

The trial court made certain findings of fact including: "(Adeline) has not accounted for the proceeds . . . from the sales of said bank stock and real estate of Ada Stickler and such proceeds are not included in the inventory filed in Ada Stickler's estate as assets of said estate; in selling and disposing of the aforesaid property of Ada Stickler, the said Adeline Leazenby was acting in her own behalf and not on behalf of Ada Stickler and by her said acts the devises in the will of Ada Stickler to the First Christian Church of Dexter, Missouri, W. E. Babb, Jr. and Nellie Babb have not been and are not adeemed, and the said First Christian Church of Dexter, Missouri, and W. E. Babb, Jr. are the owners of and entitled to the value of the proceeds from the sales and disposition of the 225 shares of stock in the Citizens Bank of Dexter and the two tracts of real estate located in Dexter, Missouri, together with interest thereon . . ."

The court entered judgment in favor of the church and against Adeline in the amount of $17,812.50, together with interest thereon "since October 1, 1973" (the date the inventory was filed in Ada's estate). Exclusive of interest, the amount of the judgment in favor of the church was the sum of $11,812.50 (one-half of the value of the bank stock) and $6,000 (the value of the real estate devised to the church.) The court also entered judgment in favor of Babb and against Adeline in the amount of $16,812.50, together with interest thereon since October 1, 1973. Exclusive of interest, the amount of the judgment in favor of Babb was the sum of $11,812.50 (one-half of the value of the bank stock) and $5,000 (the value of the real estate devised to Babb).

Adeline appeals.

Section 473.340, which governs the procedure for discovery of assets, was enacted in its present form in 1973. Under the former procedure the action was initiated by the filing of an affidavit alleging that a person was withholding an asset of the decedent. The court could cite the withholder to appear before it and if the withholder did not admit the claim contained in the affidavit, the former procedure required that he be examined under oath and that he answer interrogatories. The issues were made up by the interrogatories and the answers thereto.

Under present § 473.340 the proceeding is instituted by the filing of a verified petition in the probate court in which the estate is pending. The petition may be filed by any executor, administrator, creditor, beneficiary or other person who claims an interest in "personal property ² which is claimed to be an asset of (the) estate or which is claimed should be an asset of (the) estate." The petition must describe the property "if known" and must allege the nature of the interest of the petitioner and the fact that "title or possession of the property, or both, are being adversely withheld or claimed." Section 473.340, subsec. 2, provides, in part, "Service of summons, petition and answer thereto together with all subsequent proceedings shall be governed by the Missouri Rules of Civil Procedure." It should be noted that the issues are now made up by the petition and the answer. In this respect the present procedure differs from the former in that under the latter they were made up by the interrogatories and the answers. There is now no requirement that interrogatories be filed and answered.

In this case the church and Babb filed separate verified petitions. The church's petition specifically described the real estate and the bank stock left to it under Ada's will. It alleged that Adeline, acting under the power of attorney, had sold these assets but had done so for her individual use and benefit and not for the use and benefit of Ada. It further alleged that the proceeds from the sales were being withheld by Adeline and were being claimed by her. The petition also alleged that the described property, or its value, should be delivered "to the executrix of the estate of Ada Stickler and included in the inventory." The Babb petition was essentially the same except that it described the land which Ada's will left to Babb and the bank stock which it left to Babb's assignor.

It is important to note that each petition named, as the sole party defendant, Adeline Leazenby; that is, she was sued only in her individual capacity and not in her capacity as executrix of Ada's will. Section 473.340, subsec. 4, provides, in part, "The court shall order the joinder of the personal representative of the estate if he is not named as a party." The failure to comply with that mandate has rendered the disposition of this appeal needlessly complicated.

It should be observed that neither the church nor Babb by their respective petitions sought a judgment in favor of themselves. Each petition, limited as it was to the assets (or the proceeds of the sale of same), in which the petitioner was interested, sought the inclusion of same in the inventory of Ada's estate.

Adeline's answer to each petition consisted essentially of a general denial.

Thus the basic inquiry before the court was whether or not, under the evidence, the property described in the petitions were assets of Ada's estate. It was not incumbent upon the court, under the pleadings or under the statute, to determine whether or not the church or Babb or both would be entitled to some or all of those assets at the time the estate was ordered to be distributed by the probate court.

Under § 473.340, subsec. 3, if the court found that the disputed property were assets of Ada's estate, the court was under a duty to "direct the delivery or transfer of the title or possession, or both, of said property to the person or persons entitled thereto . . ." That person, in this case, would be the personal representative of Ada's estate.

Subsec. 3 further provides: "If the party found to have adversely withheld the title or possession, or both, of said property has transferred or otherwise disposed of the same, the court shall render a money judgment for the value thereof with interest thereon from the date the property, or any interest therein, was adversely withheld. In addition to a judgment for title and possession, or either, or for the value thereof, the court may enter a judgment for all losses, expenses and damages sustained, if any, but not including attorney fees, if it finds that the property was wrongfully detained, transferred or otherwise disposed of."

Most of the evidence in this case was offered by petitioners. It included admissions which Adeline had made in answers to...