Robertson v. Estate of Zimmerman

778 S.W.2d 805, 1989 Mo. App. LEXIS 1252, 1989 WL 102153
CourtMissouri Court of Appeals
DecidedSeptember 5, 1989
DocketNo. 55573
StatusPublished
Cited by7 cases

This text of 778 S.W.2d 805 (Robertson v. Estate of Zimmerman) 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
Robertson v. Estate of Zimmerman, 778 S.W.2d 805, 1989 Mo. App. LEXIS 1252, 1989 WL 102153 (Mo. Ct. App. 1989).

Opinion

SMITH, Presiding Judge.

Plaintiff, Joan Robertson, appeals from an order of the probate division of the circuit court of Warren County. That order held that certain assets held by plaintiff were the property of the estate of Merle Zimmerman as alleged in the estate’s Counterclaim. It further held against plaintiff on her claim for reimbursement of funds expended by her on behalf of Merle Zimmerman.

Merle Zimmerman died on August 9, 1986. She was a widow and had no children and was survived only by collateral relatives. Her will, a pour-over trust and various joint holdings left her 2.7 million dollar estate to her collateral relatives and collateral relatives of her deceased husband. Mrs. Zimmerman had suffered from cancer since prior to 1983 but there is no evidence that her mental abilities were in anyway impaired prior to her death. Her physical condition did deteriorate severely in the last two or three months before her death resulting in her being non-ambulatory for some undefined period of time. None of Mrs. Zimmerman’s relatives lived in close proximity to her home in Warren County.

Plaintiff and Mrs. Zimmerman became acquainted in the 1970’s. Plaintiff was a real estate agent and represented decedent in several transactions. The two became close friends and decedent placed continuing confidence in plaintiff in regard to her financial affairs. Plaintiff, either alone or in the company of decedent, transacted much of decedent’s banking and had access to her safe deposit box. Plaintiff' stipulated that she bore a fiduciary relationship to decedent.

In November 1985, decedent opened checking account No. 105-283-6 in the Mark Twain Bank of O’Fallon. It was originally in her name only. On January 24,1986 the account was changed to one in the joint names of decedent and plaintiff with right of survivorship. The change was made by plaintiff at a time when decedent was in the hospital. The signature [807]*807card effecting the change was signed by decedent as well as plaintiff. No evidence was adduced that the change was other than with decedent’s consent and at her direction. On March 29, 1986, decedent prepared and signed a letter which read:

“To whom it may concern:
I, Merle Zimmerman, authorize Joan Robertson, to handle the accounts in my • name at the Mark Twain Banks. She has my full power to renew Certificates or administrate the holding in my name, and upon my death I leave her full ownership of our account # 105-283-6, for all her faithfulness she has showed me.
/s/ Merle M. Zimmerman March 29, 1986.”

The only evidence of the circumstances surrounding the execution of this-writing was the testimony of plaintiff that when she entered decedent’s home decedent was typing the document and then signed and handed it to plaintiff. Plaintiff delivered a copy of the document to the bank and the bank maintained that copy in its records. There was no evidence that the letter was coerced or represented other than decedent’s intent and directions. Most of the time a balance of approximately $50,000 was in the joint account. On decedent’s death the balance was $61,958.47.

There was extensive testimony that decedent went over her bills and her receipts with plaintiff and directed plaintiff as to the payment of bills and the deposit of receipts. This was done at times in the presence of decedent’s relatives who were well aware of plaintiff’s extensive assistance to decedent and that decedent placed heavy reliance on that assistance.

In June 1986 two additional joint accounts with decedent and plaintiff as the joint tenants were opened. One numbered 3500425 was a certificate of deposit for $60,000. It was created by an unsigned deposit into account 105-283-6 and then by a debit memo from that account. The evidence is sufficient to support the conclusion that this transaction could have been accomplished by plaintiff without the knowledge or consent of decedent. The other joint account numbered 8704306 was for $100,000 and is referred to as the “prime account.” That was accomplished by a check signed by decedent. Two days later another check for $100,000 was issued and signed by decedent to purchase a certificate of deposit for the trust. The check for the prime account was prepared by plaintiff and signed by decedent. The stub for that check was filled in by plaintiff, but at some point decedent wrote “void” across the stub. Plaintiff alone handled the transactions at the bank resulting in the creation of these accounts.

In July and August a series of deposits apparently totalling $17,523.25 were made into the original joint account, number 105-283-6. These deposits were from rent, interest and other income of decedent. Plaintiff utilized that account to pay for various expenses of decedent including nursing home care and home nursing after decedent returned to her home. Plaintiff advised the family that she had access to funds of decedent to meet those expenses. The same account was also utilized by plaintiff to pay certain expenses of decedent after her death, including the funeral expenses.

In June, 1986, plaintiff removed from decedent’s safe deposit box some municipal bonds. She testified that decedent requested her to do so and that several days later decedent gave the bonds back to her. Plaintiff testified that when given back to her the bonds were in a series of manila envelopes and each envelope contained a piece of paper on which was written the name of a relative. One envelope contained a piece of paper with plaintiff’s name thereon. The bonds in that envelope had a face value of $22,000. In returning the bonds to plaintiff, decedent instructed her to put them in safekeeping. Plaintiff put them in a safe in her home. After decedent’s death plaintiff distributed the bonds pursuant to the names in the envelopes and retained the bonds in the envelope with her name. Neither the name slips nor the envelopes were produced at trial.

Two other items of evidence should be mentioned. There was considerable testi[808]*808mony that during her life decedent made substantial gifts to her relatives on a recurring but erratic basis. There was also evidence that the page of decedent’s ledger book reflecting cash receipts from June 26 through August 6, 1986 had been removed. Plaintiff, who had access to the book and made many of the entries denied removing the page and testified that decedent utilized the page to make the slips of paper on which names were written and placed in the bond envelopes.

Plaintiff brought this action to recover from the estate the amounts she expended from the joint account for decedent before and after her death. The estate counterclaimed seeking the bonds which plaintiff retained and the proceeds from the three joint accounts. The court held for the estate on plaintiffs claim and for the estate on its counterclaim. It did reduce the amount to be recovered from plaintiff on account number 105-283-6 by the amounts expended by plaintiff for decedent. Plaintiff appeals.

We deal first with the bonds. Plaintiff asserts that the court erred in finding that decedent had no present intent to make a gift because that theory was not pleaded by the estate nor tried by consent. Strict rules of pleading are not ordinarily required in a probate proceeding. Barrett v. Flynn, 728 S.W.2d 288 (Mo.App.1987) [2, 3]. The pleadings must give reasonable notice of the nature and extent of the claim. Id.

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Bluebook (online)
778 S.W.2d 805, 1989 Mo. App. LEXIS 1252, 1989 WL 102153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-estate-of-zimmerman-moctapp-1989.