Estate of Creech

120 S.W.3d 271, 2003 Mo. App. LEXIS 1762, 2003 WL 22479821
CourtMissouri Court of Appeals
DecidedNovember 4, 2003
DocketNo. ED 82647
StatusPublished

This text of 120 S.W.3d 271 (Estate of Creech) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Creech, 120 S.W.3d 271, 2003 Mo. App. LEXIS 1762, 2003 WL 22479821 (Mo. Ct. App. 2003).

Opinion

MARY R. RUSSELL, Judge.

Presbyterian Children’s Services, residuary beneficiary of the Estate of Lorene Creech, appeals from the judgment entered by the Circuit Court of Lincoln County against the estate for $20,000, the value of a missing ring bequeathed under the will. Among its points on appeal, residuary beneficiary asserts that the court erred in finding that the value of the ring was $20,000, because the finding was not supported by substantial evidence. We agree and reverse.

Lorene Creech (“decedent”) died July 31, 1999, leaving a will in which she be[273]*273queathed all her personal jewelry1 to her sister-in-law, Marjorie Creech, and her Mend, Willalma Bishop (“legatee”), or the survivor of them.

Legatee had been a Mend of decedent for over 70 years. Marjorie Creech is married to decedent’s brother-in-law, Austin Creech (“Austin”), who was a co-personal representative of the estate, along with Ronald Cowan. Shortly after decedent’s death, Austin requested leave to withdraw, and A. Carter Creech, his son, was appointed.

Decedent owned a solitaire diamond ring weighing between two and three carats that her father had given her. Legatee stated that decedent wore the ring at all times as long as she knew her. Through the duration of their Mendship, which involved frequent discussions of jewelry, decedent promised to bequeath the ring to legatee when she died.

Decedent became ill in July 1999 and was taken to the hospital. When she was prepared for surgery, she gave her jewelry to Austin. Hospital staff provided him with an inventory form to document decedent’s personal belongings. Her wedding set was the only jewelry reflected on the inventory. Austin, however, stated at trial that decedent had given him two rings, her wedding set and a cocktail ring with a cluster of diamonds, but not the diamond solitaire. Decedent died shortly thereafter.

The co-personal representatives filed an inventory with the court stating that the value of decedent’s jewelry was $10.00, and did not specifically list the solitaire ring. Legatee filed a petition for discovery of assets under section 473.340 RSMo 2000,2 naming as defendants Austin individually, and in his capacity as former personal representative, and Cowan and A. Carter Creech as co-personal representatives. Defendants admitted in their answer to legatee’s petition that Austin believed that decedent’s wedding set and cocktail ring were gifted to him at the hospital, but that he did not know where the solitaire ring was located.

At trial, legatee offered her own testimony regarding the ring’s description. She stated that the ring was either “white gold or platinum, probably platinum” and between two-and-a-half and three carats. She did not, however, testify regarding the clarity or color of the stone.

Legatee also presented the testimony of several witnesses. Cindy Ricks testified that she had known decedent for five years prior to her death, and that in each of their encounters, she noticed that decedent wore a large diamond solitaire ring. She offered no further description.

Betty Schieffer, decedent’s tenant and caretaker, stated that decedent always wore a ring with one stone of “average” size that was a gift from decedent’s father. Schieffer further stated that decedent was wearing the ring when she was transported to the hospital for the final time. Mary Dandridge, another of decedent’s caretakers, testified that decedent wore a diamond ring her father gave her, but, like the other witnesses, was unable to testify regarding the specific characteristics of the ring.

As her final witness, legatee called Nicholas Poetz (“jeweler”), a jeweler in Troy, to testify regarding the value of the diamond [274]*274solitaire ring. Jeweler testified that there are ranges of diamond clarity and color, and that the value of a particular diamond varies depending on where it falls on the scales of color and clarity. Jeweler did not address the extent to which the type of metal in which the diamond was set would affect its value.

The record indicates that, at some point after decedent’s death, legatee contacted jeweler to obtain an estimate of the ring’s value. Jeweler was never shown the ring, but legatee asked him to make a determination based upon the value of a round, two-carat diamond of “nice color, nice clarity.” Jeweler, who stated that he generally deals in much smaller diamonds, consulted a professional list to provide legatee an estimate of $20,000.

The trial court found that the ring was property of the estate, however, it could not be located. It valued the missing ring at $20,000 and entered a judgment against the estate in favor of legatee and Marjorie Creech. Following the judgment, residuary beneficiary moved to intervene as an interested party. The trial court granted the motion. Residuary beneficiary moved to set aside the judgment, or, in the alternative, for a new trial. That motion was denied and this appeal follows.

Residuary beneficiary raises three points of error. It alleges: (1) that the pleadings were insufficient to support a judgment against the estate; (2) that there was insufficient evidence that the ring was in existence at the time of decedent’s death and was in her possession at that time; and (3) that there was not sufficient evidence in the record to support the $20,000 judgment against the estate. We need not address the first and second points because the third point is dispositive.

Residuary beneficiary’s third point states verbatim:

The trial court erred in finding that the value of the ring was $20,000.00 because the testimony of the only valuation witness, Poetz, was not based on facts within his personal knowledge and observations since he has never seen the ring; and no facts as to the size, cut, clarity!,] and color of the diamond in the ring were in evidence and put to him hypothetically.

We read this point to challenge the lack of substantial evidence to support the valuation of the ring.

Our review of a court-tried case is governed by Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the action of the trial court unless it is not supported by the weight of the evidence, there is no substantial evidence to support it, or it erroneously declares or applies the law. Ryan v. Spiegelhalter, 64 S.W.3d 302, 305 (Mo. banc 2002). Similarly, petitions to discover assets are actions at law and must be supported by substantial evidence. Estate of Gross v. Gross, 840 S.W.2d 253, 257 (Mo.App.1992) (internal citations omitted). There is no specific remedy under section 473.340. Rather, the statute provides that:

The court shall direct the delivery or transfer of the title or possession, or both, of said property to the person or persons entitled thereto.... [T]he court shall render a money judgment for the value thereof with interest thereon.... [T]he court may enter a judgment for all losses, expenses, and damages sustained ....

Section 473.340.

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Bluebook (online)
120 S.W.3d 271, 2003 Mo. App. LEXIS 1762, 2003 WL 22479821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-creech-moctapp-2003.