Home/Missouri Court of Appeals/Higgins v. McElwee

Higgins v. McElwee

680 S.W.2d 335, 1984 Mo. App. LEXIS 4358
CourtMissouri Court of Appeals
DecidedOctober 16, 1984
Docket47697
StatusPublished
Cited by22 cases

This text of 680 S.W.2d 335 (Higgins v. McElwee) 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
Higgins v. McElwee, 680 S.W.2d 335, 1984 Mo. App. LEXIS 4358 (Mo. Ct. App. 1984).

Opinion

GAERTNER, Presiding Judge.

On September 7, 1977, three hours after he killed his wife, Elaine, Ernest Yokely killed himself. Two children had been born of their marriage, Anesa and April Yokely. In addition, Ernest was survived by two children of a prior marriage, Audrey Clarke and Ernest Yokely, III. Elaine was also survived by five children from a prior marriage, the plaintiffs in this case. Elaine and Ernest were the owners of certain real estate and a Buick automobile as tenants by the entirety. Each was insured by a policy of life insurance issued by the Wabash Life Insurance Company, in which the other was the named beneficiary. They both died intestate.

On December 7, 1977, Ernest Yokely, III filed an application for letters of administration for the estate of Ernest Yokely, which were duly issued by the then Probate Court of the City of St. Louis. No estate was ever opened for Elaine. The real property and the automobile were inventoried as assets of Ernest’s estate. On May 18, 1978, the Wabash Insurance Company issued its draft payable to the estate of Ernest M. Yokely in the amount of $7,625.00 as payment of the face value of his policy plus interest. The same date, a second draft payable to the Estate of Ernest M. Yokely, beneficiary of Elaine Yokely, deceased, in the amount of $5,083.36 was issued as payment of the face value of Elaine’s policy plus interest. On June 28, 1978, Wabash issued a third draft payable to Ernest Yokely, III, administrator of the Estates of Ernest Yokely, deceased and Elaine Yokely, deceased, in the sum of $9,375.00. This amount represented a compromise settlement of the double indemnity provisions of both policies. All of these payments were inventoried as a part of Ernest’s estate.

On March 23, 1979, the Probate Division of the Circuit Court of the City of St. Louis revoked the letters of administration issued to Ernest Yokely, III for failure to perform his official duties. On October 5, 1979, appellant McElwee was appointed administrator D.B.N. McElwee promptly paid off the balance of the mortgage on the real estate, $1,000.21, and sold it. The proceeds of this sale, $27,283.09 were added to the estate.

In August, 1980, McElwee filed a petition for Final Settlement. Having received approval of the legal department of the Probate Court, he made distribution to Ernest Yokely, III totalling $11,327.76 which included advancements made to Ernest previously during his term as administrator. The court did not give its approval to the final settlement and held up the order of distribution pending the appointment of guardians for Audrey Clarke, Anesa and April Yokely, who were all minors at the time. Prior to the appointment of a guardian, Audrey Clark attained her majority and, without court order, McElwee distributed $12,010.60 to her on December 4, 1981.

On December 31, 1981, there remained in the estate a sum in excess of $24,000.00 *339 representing the shares due Anesa and April. On that date, plaintiffs, the children of Elaine’s first marriage, filed a suit in equity against McElwee, Ernest Yokely, III, Audrey Clarke and Anesa and April Yokely, seeking a declaratory judgment and the imposition of a constructive trust upon the proceeds of. the sale of the jointly owned real estate and the proceeds of the life insurance policies. Attorney Charles J. McMullin was appointed guardian ad litem for Anesa and April. After a hearing, the court in its final order ruled in favor of plaintiffs and imposed a constructive trust upon assets belonging to the heirs of Elaine and improperly inventoried as a part of the estate of Ernest Yokely. The court ordered the following distribution to be made:

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Bluebook (online)
680 S.W.2d 335, 1984 Mo. App. LEXIS 4358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higgins-v-mcelwee-moctapp-1984.