Estate of Mings v. Mings

6 S.W.3d 909, 1999 Mo. App. LEXIS 2387, 1999 WL 1136809
CourtMissouri Court of Appeals
DecidedDecember 14, 1999
DocketNo. WD 56426
StatusPublished

This text of 6 S.W.3d 909 (Estate of Mings v. Mings) 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 Mings v. Mings, 6 S.W.3d 909, 1999 Mo. App. LEXIS 2387, 1999 WL 1136809 (Mo. Ct. App. 1999).

Opinion

LOWENSTEIN, Presiding Judge.

The issue at the center of this case is whether an authorized public sale of a protected person’s real estate by a conservator, to the conservator’s son, where the conservator has made a gift of the purchase price to the purchaser, violates the prohibition against a conservator becoming an indirect purchaser of the protectee’s property. § 475.235, RSMo 1994. (All further statutory references are to the Revised Statutes of Missouri, 1994). The appellant, Clifford Mings, conservator of his father’s estate, filed a final settlement of that estate after his father’s death. At the hearing on the final settlement, a previously concluded and approved sale of real estate to Appellant’s son was disallowed. The conservator filed this appeal, claiming he had not indirectly purchased the property. Appellant additionally contends the setting aside of the sale was invalid because proper notice was not afforded to interested parties and that the [911]*911court’s denial of his request for conservator compensation was improper.

I. FACTS

On April 6, 1984, the Circuit Court of Boone County determined Lee Mings was totally incapacitated and appointed his son, Appellant Clifford Mings, his guardian and conservator. During the years of his con-servatorship, Appellant sold, with court approval, various parcels of property contained in Lee Mings’ estate. On April 9, 1996, Appellant filed a petition seeking approval to sell the last remaining parcel of real estate by public sale, as the estate did not contain sufficient assets to provide for Lee Mings’ continued care.

On May 13, 1996, a hearing was held on Appellant’s petition to sell the remaining parcel of land. The heirs, although notified, did not appear, nor did any interested person file an objection to the proposed sale. Appellant testified the estate was running at a deficit and sale of the property would be in the best interest of the estate. Appellant proposed a public auction at the courthouse in Wright County. The petition to sell the real estate was sustained.

On August 9, 1996, public sale of the real estate was held. The only bid on the property was made by Appellant’s son, Andrew Mings, who bid $17,000.00. Appellant later testified that other people were at the courthouse trying to get enough money together to bid on the property, but they could not beat Andrew Mings’ bid. Appellant filed a report of sale on August 14, 1996, stating that Andrew Mings purchased the property at a bid of $17,000.00 cash. Appellant requested the sale be confirmed and approved.

Appellant filed an affidavit with the court on September 4,1996, stating that he had no interest, direct or indirect, in the sale of the real estate. He further stated that the land would be held in the name of Andrew Mings, who had supplied the consideration for the sale, and that Andrew Mings was Appellant’s son and the grandson of Lee Mings.

On September 6,1996, the court entered an order confirming the report of sale of the real estate and ordering execution of the deed to Andrew Mings. The court noted the report had been on file for more than ten days and no interested person had filed any objection to the sale. The sale and the consideration paid were approved. Appellant was authorized to execute and deliver to Andrew Mings a deed conveying to Andrew title to the real estate. Title was then transferred.

The protectee, Lee Mings, died on May, 1, 1997. On July 17, 1997, Appellant filed a final settlement of the estate with the court, along with supporting documentation. Contained in the documents attached to the final settlement, was a copy of a cashier’s check from Appellant to Andrew Mings, dated October 7, 1996, in the amount of $17,000.00. Appellant additionally requested conservator and attorney’s fees.

The court set March 9, 1998, to hear the final settlement and request for fees. Andrew Mings did not receive notice of the final settlement, however, he did receive notice of the hearing on conservator compensation. A conservator ad litem was appointed on March 3, 1998. No heir or interested person, other than Appellant and the conservator ad litem, appeared at the hearing.

Appellant testified that neither at the time he executed the affidavit, nor at the time of hearing, did he ever have a direct or indirect interest in the property. He testified that he gave his son Andrew the $17,000.00 as a gift to do with as he pleased, it was not a loan. Appellant paid $56,000.00 for his daughter’s college education and wanted to give his son something as well. Further, Appellant testified he gave Andrew the money to buy the land because it was a family farm, but that Appellant did not want nor need the land, and that there was no agreement for An[912]*912drew to transfer the property to Appellant at any time.

The conservator ad litem testified that she called the Wright County courthouse the morning of the hearing and found the property was still titled in Andrew Mings’ name. Further testimony established that Andrew lives on the farm and carries his own insurance. Appellant paid the 1996 and 1997 real estate taxes on the property because Andrew was not very good about paying bills, and Appellant wanted to make sure the taxes got paid.

Additionally, Appellant testified he had served as conservator of the estate since April 1993 without compensation. The court had previously approved Appellant’s requests for compensation for the years 1984 to mid-1993.

The court disallowed the previously approved sale of property to Andrew Mings. Appellant’s request for compensation was denied and Appellant was ordered to pay the conservator ad litem’s fees. On August 17, 1998, the court made final the judgment on the disallowance of the sale, the non-approval of the final settlement and the fee allowance.

Appellant timely filed a notice of appeal to this court, against respondent, the conservator ad litem. Appellant’s claims on appeal are: (1) it was error to disallow the previously approved sale of real estate to Andrew Mings because Appellant did not directly or indirectly purchase the property, (2) it was error to disallow the sale of real estate at the hearing on the final settlement of the estate because proper notice was not afforded to interested parties, and (3) it was error for the court to deny Appellant’s request for conservator compensation and to require Appellant to pay the conservator ad litem’s fees.

II. STANDARD OF REVIEW

On appeal from a judge-tried case, this court will affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Gaar v. Gaar’s Inc., 994 S.W.2d 612, 616 (Mo.App.1999) citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). This court will not set aside a judgment on appeal unless firmly convinced that the judgment is wrong. Lenger v. Lenger, 939 S.W.2d 11, 13 (Mo.App.1997) citing Fulton v. Adams, 924 S.W.2d 548, 551 (Mo.App.1996).

III. ANALYSIS

A. Direct or Indirect Purchase of the Real Estate

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Bluebook (online)
6 S.W.3d 909, 1999 Mo. App. LEXIS 2387, 1999 WL 1136809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-mings-v-mings-moctapp-1999.