Yonke v. Alber's Estate, 23397

• Decision Date: 04 December 1961
• Docket Number: No. 23397,23397
• Citation: Yonke v. Alber's Estate, 351 S.W.2d 794 (Mo. App. 1961)
• Parties: Albert J. YONKE, Plaintiff-Respondent, v. ESTATE of Mary ALBER, deceased, James H. Fender and Ruby Fender, Administrators, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 794

351 S.W.2d 794

Albert J. YONKE, Plaintiff-Respondent, v.ESTATE of Mary ALBER, deceased, James H. Fender and Ruby Fender, Administrators, Defendants-Appellants.

No. 23397.

Kansas City Court of Appeals, Missouri.

Dec. 4, 1961.

Richard H. Musser, Holden, Garrett R. Crouch and C. B. Fitzgerald, Warrensburg, for appellants.

Phillip C. Houx, Warrensburg, W. F. Daniels, Fayette, for respondent.

BROADDUS, Judge.

This is an appeal by the administrators of the Estate of Mary Alber, deceased, from a judgment in favor of Albert J. Yonke, in the sum of $10,000.We have jurisdiction of the cause by reason of Sect. 477.040(as amended 1959) V.A.M.S.

The facts are undisputed.Mary Alber and Dan Alber were husband and wife residing in the State of Kansas.One child had been born of this marriage.In November, 1956, Mrs. Alber sued her husband for divorce in the State of Kansas.Mr. Yonke, the claimant here, represented Mrs. Alber, and Mr. Hilary Bush represented Mr. Alber in the divorce action.

There were negotiations relative to a property settlement between the parties and their attorneys off and on from the time the suit was filed until the 20th day of May, 1957, on which date the property settlement agreement was signed by Mary and Dan Alber and duly acknowledged.The only portion of this settlement agreement (Exhibit 3) in issue here is paragraph 15, which is as follows:

'15.It is further agreed that the real estate commonly known as the Pleasanton, Kansas, farm and more fully described as follows * * * shall be, co-incident with the signing of this agreement, transferred and conveyed to Thomas J. Gill, as trustee, with instructions to said trustee to sell said farm and to apply the proceeds of said sale first, to the cost of making the sale, second, to the payment of attorney's fees in the amount of $10,000.00 each to Albert J. Yonke, Attorney for First Party, and Hilary A. Bush, attorney for Second Party.Any surplus remaining shall be paid over to the party of the first part.The second party agrees to pay all taxes due and payable at the signing of this agreement and to pay for the costs and expense of a title policy or for the examination of this abstract.'

On May 22, 1957, the land described in said paragraph 15 was conveyed to Mr. Gill, as trustee.He has never reconveyed any portion of this real estate.

On June 12, 1957, Mrs. Alber was divorced from Mr. Alber in the District Court of Johnson County, Kansas.The full decree is shown by appellants Exhibit 4, which included the full property settlement heretofore mentioned, except Paragraph 15.This decree was filed in the Kansas Court on September 12, 1958, and has on it the word 'approved' by 'Albert J. Yonke, attorney for First Party.'On June 20, 1957, the Kansas Trial Court by Journal Entry disapproved the provision in the settlement as to attorney fees.

On January 9, 1959, Mrs. Alber died in Kansas and in the same month of the same year appellants were appointed co-administrators of her Missouri estate.Prior to that time the last Will of decedent had been admitted to probate in Kansas and an executor appointed in that State.

On October 8, 1959, respondent Yonke filed a demand in the Missouri estate of deceased for $10,000 on account of legal services performed by respondent at the request of deceased.In said demand, respondent stated that he held certain real estate in Kansas as security for his claim.This real estate described in his claim was the same as that set out in Paragraph 15 of the property settlement agreement and which had been transferred to Mr. Gill as trustee.

On February 25, 1960, Honorable William M. Kimberlin, Judge of the Circuit Court of Johnson County, sustained claimant Yonke's Motion to strikeparagraphs 2, 3 and 4 of appellants' answer.On April 27, 1960, appellants filed an application for change of venue on the ground that Judge Kimberlin was prejudiced against them.The application being sustained, the Honorable Sam C. Blair, Judge of the 19th Judicial Circuit, was called into try the cause.The case came on for trial on December 27, 1960, and at the conclusion of the evidence the trial court directed a verdict in favor of respondent Yonke.

Respondent has filed a motion to dismiss the appeal herein on the ground that appellants' brief does not contain a fair and concise statement of the facts, and that their Points are general abstract statements and present nothing for review.We have concluded that the questions posed for determination are clear and thus the motion should be denied and the case decided on its merits.

Appellants' first contention is that the court erred in failing to direct a verdict for them at the close of all the evidence.They argue that respondent is suing on the contract (Exhibit 3) and shows no breach thereof.What their contention really amounts to is that respondent must look to the security specified in Clause 15 of the contract between Mr. and Mrs. Alber for payment of his claim.

As stated decedent's estate was opened in Johnson County, Missouri, where respondent filed his claim.Such proceedings are now, by the new Probate Code, original proceedings and not ancillary or dependent upon the proceedings in the State of domicile of deceased, Sect. 473.668 V.A.M.S.In said demand so filed by respondent, he described the security therefor, as required by Sect. 473.387 V.A.M.S.It is well settled in Missouri, and elsewhere, that a claimant may file a demand for the full amount of his claim against an estate or he may resort to his security.Day v. Graham, 97 Mo. 398, 11 S.W. 55;34 C.J.S.Executors and AdministratorsSec. 368, p. 97.As stated in Sect. 473.387 V.A.M.S., the claimant must describe his security (which respondent did) and the claim shall be allowed 'in the same amount as if it were unsecured.'Said statute goes on to say that: 'Nothing in this law shall be construed to compel the creditor to surrender his security until he receives payment of [the] debt in full, or he is paid the value of the security.'

Respondent offered as evidence of his claim the contract entered into between Mr. and Mrs. Alber (Exhibit 3), which was admitted without objection by appellants.Said contract was relevant to prove the amount of the demand, the reason for the demand, and the services rendered by respondent to deceased.As said by our Supreme Court in the case of Muench v. South Side National Bank, 251 S.W.2d 1, 5: 'Evidence of the express promise to pay and the agreed compensation, was admissible to show an intention on the part of the deceased to pay for the services, that plaintiff expected payment and the value the parties put upon them.'

Appellants in their brief say 'the trustee did not and has not performed his trust,' and 'decedent never did anything to hinder or delay the performance of the agreement by the trustee.'In other words, their...