Herrington v. Kilgore

740 S.W.2d 694, 1987 Mo. App. LEXIS 4946
CourtMissouri Court of Appeals
DecidedNovember 24, 1987
DocketNo. 52551
StatusPublished
Cited by5 cases

This text of 740 S.W.2d 694 (Herrington v. Kilgore) 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
Herrington v. Kilgore, 740 S.W.2d 694, 1987 Mo. App. LEXIS 4946 (Mo. Ct. App. 1987).

Opinion

CRIST, Judge.

Mary Kilgore appeals the trial court’s ruling on a Petition for Discovery of Assets. Sandra Herrington brought the action as personal representative for the Estate of James L. Wilson (Estate). Mary also appeals the denial of her claim against Estate for services rendered to James L. Wilson. We affirm as modified.

Mary and James began living together in 1970. At the same time, they began holding themselves out as husband and wife, and Mary began to use the name Mary Wilson. At this time James was married, and that marriage was not dissolved until 1972 or 1973. Mary and James’ relationship was never solemnized by a marriage ceremony. In 1983 James became ill and died while he and Mary were in Colorado on business. During the approximately thirteen years James and Mary were together, they tried their hands at several business ventures, purchased several vehicles and a mobile home, and jointly obligated themselves on several notes.

After James’ death, Mary, as his widow, filed an Application for Letters of Refusal. The application was granted, and on July 27, 1983, the court issued its order Refusing Letters for Spouse. Shortly thereafter, on January 25,1984, Sandra Herring-ton was appointed personal representative for the Estate of James L. Wilson. On February 28, 1984, the court vacated the order by which it granted Mary the Letters of Refusal.

Estate filed a Petition for Discovery of Assets on March 21, 1984, in which it asserted Mary had concealed or disposed of assets belonging to James’ estate. These [696]*696assets included: one Ford pickup truck valued at $9,000, one travel trailer valued at $3,800, one mobile home valued at $15,000, enumerated furnishings from the trailer valued at $4,440, family photographs valued at $500, tools valued at $400, clothing valued at $250, a one-half interest in antiques valued at $10,000, a one-half interest in an Arkansas bank account of unknown value, a one-half interest in undescribed property in Arkansas of unknown value, and a one-half interest in an undescribed Canadian bank account of unknown value.

Mary’s answer to the petition was a general denial and a prayer that her claim against the estate for $30,239.71, filed April 5, 1984, be construed as a counterclaim or setoff.

The Petition for Discovery of Assets and Mary’s claim against Estate were tried together by the court. Estate’s evidence consisted of reading part of Mary’s deposition and eleven exhibits including vehicle titles, security agreements and tax returns. Mary testified in her defense and provided the court with eight more exhibits. The evidence on Mary’s claim against Estate consisted of her testimony, the testimony of James’ sister and five more exhibits. Based upon this evidence the court dealt with both the claim and the counterclaim.

The court found Mary and James were tenants in common with equal shares in the mobile home, the antiques, and the travel trailer which the court found Mary had sold for $3,800. As to the Ford pickup truck, the court found James was the sole owner and the pickup had a value of $9,000, subject to certain indebtedness; Mary had possession and use of the pickup from the time of James’ death, and the rental value was $1,900; and Mary had made payments on the pickup since James’ death. The court also found Mary had paid funeral expenses arising from James’ death. The court calculated the funeral expenses and payments on the pickup came to $3,792. Thus, the court found the $3,800 derived from the sale of the commonly held travel trailer was used for funeral expenses and to make the payments on the pickup.

By the court’s order the pickup was transferred to Estate; Mary was entitled to a credit of $1,900 from the sale of the travel trailer but that credit was offset by the $1,900 rental of the pickup; Estate was granted a one-half interest in the mobile home representing an equity of $750; and Estate was awarded $1,250 in cash representing one-half the value of the antiques. The court denied Mary’s claim as far as it pertained to services rendered James during his lifetime. On all issues not specifically dealt with the court found against the party asserting the claim. The result of the order was that Estate received the pickup, $1,250, and a $750 interest in the mobile home. Mary retained the mobile home, its contents, the antiques, as well as any bank accounts or other property she and James may have had.

On appeal, Mary raises five assertions of error. She claims the trial court erred in finding all the property was held in a tenancy in common and not in a joint tenancy with right of survivorship. Mary, in her second point relied on, asserts that even if we affirm the finding of a tenancy in common the court erred in its division of the property because it did not divide the property in proportion to their contributions. Her third claim is the pickup titled solely in James’ name should also be considered jointly held property. Mary’s fourth point relied on deals with that part of the court’s order offsetting the use of the pickup. Lastly, Mary appeals the denial of her claim for services asserting “an implied contract [for compensation] exists in a marriage and the Wilson’s believed themselves married.” We will address the points in the order raised.

Several of Mary’s allegations of error are based on the premise the trial court’s order was not in accord with her testimony. In a court-tried case the credibility of witnesses is for the trial court and the court may believe all, part, or none of the testimony of any witness. Trenton Trust Co. v. Western Surety Co., 599 S.W.2d 481, 483 [4] (Mo. banc 1980); Estate of Johnson v. Lamburth, 719 S.W.2d 55, 59 [6] (Mo.App.1986). We accept as true only those facts [697]*697which support the result reached by the trial court. Trenton Trust Co., 599 S.W.2d at 483 [3]. And, we affirm unless there is no substantial evidence to support the judgment, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 483 [1].

The application for title for the travel trailer and the certificate of title for the mobile home both indicate ownership by Mary “and/or” James Wilson. As Mary states in her brief, the use of “and/or” does not automatically create a joint tenancy. See e.g. Estate of Plummer v. Fritsch, 706 S.W.2d 573, 575 [1] (Mo.App.1986) (“A or B, payable to either” does not create a joint tenancy in a bank account); Melton v. Ensley, 421 S.W.2d 44, 51 [4] (Mo.App.1967) (the use of “and,” “or” or “and/or” does not per se indicate the type of tenancy in a bank account). Mary argues their intent should control. Melton, 421 S.W.2d at 52 [11]. Mary testified she and James considered themselves married. She claims this belief is evidence of their intent to hold their property as joint tenants with right of survivorship and not as tenants in common.

Property held by nonmarried persons as a married couple is held in a tenancy in common unless a joint tenancy is proved by evidence other than the fact the property was erroneously titled as if they were married. Anderson v. Stacker, 317 S.W.2d 417, 421 [3] (Mo.1958); Keller v.

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Bluebook (online)
740 S.W.2d 694, 1987 Mo. App. LEXIS 4946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herrington-v-kilgore-moctapp-1987.