Wimberly v. McElroy

• Citation: 295 S.W.2d 597
• Decision Date: 01 October 1956
• Docket Number: No. 22424,22424
• Parties: Jimmie Fay WIMBERLY (Petitioner), Respondent, v. Perrin D. McELROY, Administrator W.W.A. of the Estate of Joshua Wimberly, Jr., Deceased, Appellant.
• Court: Missouri Court of Appeals

Page 597

295 S.W.2d 597

Jimmie Fay WIMBERLY (Petitioner), Respondent, v. Perrin D. McELROY, Administrator W.W.A. of the Estate of

Joshua Wimberly, Jr., Deceased, Appellant.

No. 22424.

Kansas City Court of Appeals, Missouri.

Oct. 1, 1956.

Daniel L. Brenner, James E. Lockwood, Kansas City, for appellant.

Lancie L. Watts, Marvin C. Hopper, Watts, Shafer & Hopper, Kansas City, for respondent.

BROADDUS, Judge.

This is an appeal from the judgment of the Circuit Court adjudging that an order of the Probate Court of Jackson County granting ancillary letters of administration, with will annexed, to Perrin D. McElroy, Public Administrator of Jackson County, on the Estate of Joshua Heard Wimberly, Jr., deceased, was null and void; and adjudging that a subsequent order of said Probate Court revoking said letters was in all respects correct and proper.

There is no substantial dispute as to the facts. Joshua Heard Wimberly, Jr., died testate on September 24, 1953, while a resident of California. He was survived by his widow, Jimmie Fay Wimberly, petitioner-respondent herein, and by two children, all residents of Los Angeles, California. He was also survived by his parents, J. H. Wimberly, Sr., and Eunice Wimberly, and by a sister, all of whom resided in Houston, Texas.

Prior to his death decedent had become mentally incapacitated. Petitioner had been appointed his guardian and curator on July 16, 1952, by the Superior Court of Maricopa County, Arizona, at which time they were living in Phoenix, Arizona. On March 4, 1953, decedent was taken to a sanitarium at Garden Grove, California, where he remained until the date of his death. On or about June 25, 1953, petitioner and her two children moved to Los Angeles in order to be nearer the decedent. After the change of residence, the Arizona guardianship was terminated, and petitioner was appointed decedent's guardian and curator in California on August 24, 1953. The California guardianship remained in effect until terminated by reason of death.

The decedent's will was duly admitted to probate in the Superior Court of Los Angeles County, California, on October 29, 1953, and on the same date petitioner was appointed executrix and letters testamentary were issued to her.

Decedent's estate consisted of certain tangible items of personalty situated in California, as shown by the inventory filed in that State. Also included in the estate was a promissory note in the sum of $100,000. The maker of this note was the Superior Distributing Company, a corporation of Missouri, whose only offices are located in Kansas City, Missouri. The note is payable in annual installments ending January 31, 1961, to petitioner as guardian of the person and estate of Joshua Heard Wimberly, Jr. It was secured by a pledge of shares of stock of the Superior Distributing Company, which shares were and are in the possession of the City National Bank and Trust Company of Kansas City, Missouri, pursuant to an escrow agreement. The latter provides, among other things, that upon default in payment, the escrow agent is charged with the duty of selling said shares and distributing the proceeds of such sale in accordance with its terms. The note, which was listed in the California inventory, specifies that it is payable at the City National Bank and Trust Company in Kansas City.

The will of Joshua Heard Wimberly, Jr., provided that after payments of debts and an absolute bequest of household furnishings and automobiles to petitioner, the residue of the estate would pass to petitioner and the Commerce Trust Company, Kansas City, Missouri, in trust for the purposes therein recited.

Under the terms of the trust the testator's father and mother were to receive the sum of $150 per month during their lifetime and the lifetime of the survivor.

The above mentioned $100,000 note has continuously remained in petitioner's possession in California. There is no real property or tangible personal property belonging to deceased's estate located in Missouri. Petitioner has testified that on her best information and belief there are no debts of the estate in Missouri.

About the middle of October, 1953, Mr. Wimberly, Sr., called Mr. Daniel L. Brenner, an attorney in Kansas City, on the telephone, from Houston, Texas, relative to 'some business' he was helping Wimberly, Sr., transact. During the conversation Wimberly, Sr., asked Brenner 'how this estate was to be managed so that the Commerce Trust Company would handle it.' Brenner informed Wimberly, Sr., that a Public Administrator would have to be appointed in Missouri, and Wimberly, Sr., indicated that would be agreeable with him. After being advised of Mr. Wimberly's wishes, Mr. Brenner, on October 26, 1953, went to the office of Perrin D. McElroy, Public Administrator, and requested McElroy to apply for ancillary letters of administration on decedent's estate. Mr. McElroy inquired of Brenner whether some communication from Wimberly, Sr., requesting ancillary administration would be desirable. So on November 2, 1953, Brenner prepared and Wimberly, Sr., signed a letter addressed to McElroy which stated: 'As a beneficiary under the Last Will and Testament of Joshua Heard Wimberly, Jr., deceased, I do request that ancillary administration of his estate be taken out in Kansas City, Missouri, and that you be appointed ancillary...