Trask v. Davis

• Court: Missouri Court of Appeals
• Writing for the Court: RUARK; McDOWELL, P. J., and STONE
• Citation: Trask v. Davis, 297 S.W.2d 792 (Mo. App. 1957)
• Decision Date: 26 February 1957
• Docket Number: No. 7513,7513
• Parties: Joe TRASK, Plaintiff-Respondent, v. Elton DAVIS, Executor of the Estate of W. A. Neal, deceased, Defendant-Appellant.

Page 792

297 S.W.2d 792

Joe TRASK, Plaintiff-Respondent, v. Elton DAVIS, Executor of the Estate of W. A. Neal, deceased Defendant-Appellant.

No. 7513.

Springfield Court of Appeals, Missouri.

Feb. 26, 1957.

C. A. Powell, Dexter, for appellant.

Claude Arnold, Dexter, Briney & Welborn, Bloomfield, for respondent.

RUARK, Judge.

Joe Trask filed claim in probate court against the executor of the estate of his deceased father-in-law, W. A. Neal, for services in nursing and personal care of Neal as an invalid. The amended claim was for a total of $6,830, for 683 days, and the case was submitted to the jury on services rendered through the period May 22, 1952-April 10, 1954. Trial in probate court resulted in verdict for claimant in amount of $4,000. Upon appeal to circuit court a jury awarded Trask the sum of $2,943.50. The executor has appealed.

W. A. Neal, age 97 years at the time of his death, and his wife, Altha, also elderly, and their daughter, Mae, lived in a home on what was said to be a 200-acre tract in Stoddard County. The only evidence as to 'farmability' of this tract is the application for guardianship filed by the daughter, Mae, on May 22, 1952, which lists the probable value of the real estate (exclusive of money and personal assets) at $2,500.

In 1948 respondent, Trask, and the daughter, Mae, were married. From then on until the death of W. A. Neal on April 10, 1954, Neal, his wife, Altha, and Trask and his wife, Mae, lived in the same house on the tract above-mentioned, and to all outward appearances they lived in all respects as one family; that is, their food was cooked and served together and they used the same facilities of the home.

By taking the evidence most favorable to the respondent, as we must do on this appeal, we find that by 1948 both W. A. Neal and his wife, Altha, had begun to suffer the infirmities of old age. Neal's mental faculties had failed to the extent that he did not recognize old neighbors. He was 'pretty feeble,' 'he wasn't out of the house hardly at all after Joe come there.' By May 1952 the depressing retrogression toward the seventh age of man made necessary an adjudication of incompetency against both W. A. Neal and his wife, Altha, and Mae Trask was appointed guardian. The following month (June 1952) Altha, wife of W. A. Neal, died. At somewhere near the same time misfortune befell Mae Trask. She became afflicted with cancer, from which she did languish and eventually (October 1954) die. During the period extending from May 1952 until Neal's death in April 1954, which is the period in question, Neal grew progressively more infirm and required more care. His hearing was extremely bad; his eyesight was failing (he eventually became totally blind); he was so feeble that he had to be led and supported from his bed to the table and helped into a chair. In the final days of his life he became completely bedfast. During the period under question the aged man had little or no control over any of his bodily functions. This condition frequently involved stripping him of his clothes, washing him and often the change of bedding. Though W. A. Neal is dead, we are reluctant to intrude upon his defenseless privacy by dwelling more than necessary upon the sad indignities so often wrought by a cruel senility. Suffice it to say that he was helpless to the extent that he was dependent upon others for his care, and that the care required was sometimes exacting, onerous and often unpleasant for those who rendered it.

Before her own illness had gone too far, it appears that Mae, the daughter and wife, performed a great many of the services for her father, but even during 1952 she was compelled to make a number of trips to St. Louis, sometimes to remain a week or two at a time, for examination and treatment; and as her disease continued its inroads her capacity for help became more and more limited. She did what she could, 'but she wasn't able a lot of times' and was 'in bed a lot.' She 'did a lot of work,' but 'she didn't do all of it even when she was able.' The claimant's evidence shows that Joe Trask carried bedpans and slop jars, stripped clothes from and washed his father-in-law, gave him baths, washed his clothes, cut his hair, shaved him, helped him about when not bedfast and carried food to his bed when bedfast, prepared (at times when Mae was absent or unable by reason of her illness) and served his meals. Some of these services were performed both in the daytime and at night. How much farming Trask did, or had to do, during this period is not shown. He worked at a mill 'driving nails' for a total of two or three months in each of the years 1952 and 1953. This was not always by regular hours, for the testimony was that he would sometimes come to work in the middle of the morning and sometimes would go home in the middle of the afternoon. 'And there would be days that he couldn't work because he had to stay at home and help take care of the folks.'

Mae filed her final settlement as guardian of W. A. Neal in July following her father's death. The claimant filed no claim for his services against the guardian, nor did he sue such guardian in circuit court.

At the trial of this case in circuit court claimant proved the execution of and there was received in evidence a lease executed on the 7th day of February, 1953, but purporting by its terms to cover the entire calendar year of 1953, wherein Mae Trask was guardian and lessor and Joe Trask and Mae Trask were lessees, and by which the lessees were rented the farm heretofore mentioned, with right to plant all tillable land and to live in the dwelling house. Paragraph 3 of such instrument provided:

'As a rental for said premises during the year 1953, the Lessees shall furnish all of the groceries, clothing, electricity, and fuel for the Lessor and shall pay the taxes and insurance on the buildings and land for the year 1953. It is agreed and understood that the Lessees shall not be required to perform any personal services for said Lessor, and that the rents and proceeds therefrom are not to be considered as compensation for personal services rendered or to be rendered to and for Lessor.'

The exhibit was offered and admitted for the sole purpose of showing the intent of claimant to charge for personal services rendered Neal, and the claimant sought to read to the jury only paragraph 3, but at the insistence of the defendant (after objection) the whole lease was read. ¹

The claimant offered to show (not by his own testimony) various 'self-serving' statements which he had made at different times during a period commencing at a time prior to the adjudication of incompetency of Neal and continuing, on various occasions, up through 1952 and 1953. These were out of court statements made in the course of conversation to persons stranger to these proceedings. The substance and effect of these various statements was that the claimant was going to be paid, or intended to be paid, for his personal services in taking care of the old man. The court refused to admit those statements which were made prior to the adjudication of incompetency, ² but did admit several such statements which were made after such adjudication and prior to the death of W. A. Neal.

Appellant contends that under the circumstances here related the claim could not be prosecuted against the executor in probate court; that the claim should have been filed with the guardian before discharge, and if disputed it should have been determined in the circuit court. The statutes in force at the time of the origin of this claim ³ provided for the publication of notice of appointment of a guardian for incompetent, sec. 458.210, and the filing of claims by creditors, sec. 458.320. This latter is held to be confined to claims which accrued prior to adjudication of incompetency and appointment of guardian. Evans v. York, Mo.App., 195 S.W.2d 902; In re Murphy's Estate, Mo.App., 231 S.W.2d 200; In re Moore's Guardianship, Mo.App., 148 S.W.2d 116. Sec. 458.550 provided that upon the death of the ward notice should be given the personal representative, and the guardian should, within a limited time, settle his accounts and deliver the assets to such personal representative. It did not provide for notice to creditors, nor did it provide any method for determining disputed claims. It furnished no vehicle for determination of disputed claims which accrued during the period of guardianship. Under this statute, upon the death of the ward the guardian became functus officio, except for the purpose of making settlement and surrender, and the administrator or executor became the personal representative against whom the claim must be made. Evans v. York, mo.App., 216 S.W.2d 124, 128; Williams v. Vaughan, 363 Mo. 639, 253 S.W.2d 111, 116; Greever v. Barker, 316 Mo. 308, 289 S.W. 586, 588. To the contrary we find Greever v. Barker, 204 Mo.App. 190, 223 S.W.2d 1087. But this holding is weakened by the later decisions, and this court has said that we are not bound to follow it. Tock v. Tock, Mo.App., 120 S.W.2d 169, 172.

On the other hand, Ch. 464, relating to payment of claims against estates of decedents, furnished full and complete method and machinery for the notification of creditors, the filing of claims and the trial and defense of such. Under the sections of this chapter the claim could be established either in the probate court or the circuit court, and the jurisdiction for the establishment of disputed claims (except suits in equity) is concurrent. Rhodes v. Rhodes' Estate, Mo.App., 246 S.W.2d 98; Barnes v. Boatmen's National Bank of St. Louis, 355 Mo. 1136, 199 S.W.2d 917. ⁴

We find no exception or exclusion made in the chapter last above mentioned in reference to claims which accrued during the disability of a decedent; and since the claim was for services alleged to have been performed after granting of letters of guardianship and could not, upon the death of the ward, be...