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Jennings v. Atkinson

Court of Appeals of Missouri, Western District

December 16, 2014

NANCY JO JENNINGS, ADMINISTRATOR PENDENTE LITE OF THE ESTATE OF BERTHA BLANCHE DON CARLOS, DECEASED, Appellant,
v.
RUSSELL E. ATKINSON, Respondent

Appeal from the Circuit Court of Johnson County, Missouri. The Honorable Garrett R. Crouch, II, Judge. All concur.

For Appellant: John Edmiston, Warrensburg, MO.

For Respondent: Charles Fitzgerald, Warrensburg, MO.

Before Division Four: Alok Ahuja, C.J. Presiding, James Edward Welsh, J., and Tracey Mason-White, Sp. J. All concur.

OPINION

Page 462

James Edward Welsh, Judge

Nancy Jo Jennings, in her capacity as administrator pendente lite of the Estate of Bertha Blanche Don Carlos (" the Estate" ), appeals the circuit court's judgment in favor of Russell E. Atkinson on her Petition for Discovery of Assets of the Estate. We reverse and remand.

Background

Franklin Don Carlos (" Franklin" ) and Bertha Don Carlos (" Bertha" )[1] were married on March 28, 1935. Eleven years later, the married couple acquired 277.8 acres of property in Johnson County, Missouri (" the Johnson County property" ), pursuant to a warranty deed dated March

Page 463

1, 1946.[2]

On December 10, 1993, Franklin and Bertha, as husband and wife, executed and recorded a beneficiary deed tat conveyed the Johnson County property to Russell Ray Atkinson, effective upon the " death of the last to die of these grantors."

Less than a year later, on August 18, 1994, Franklin and Bertha, as husband and wife, executed and recorded a warranty deed conveying this same property to Bertha, individually. That warranty deed recites that " Franklin Don Carlos and Bertha B. Don Carlos, husband and wife, grantors, [do] grant, bargain and sell, convey and confirm, unto Bertha B. Don Carlos, . . . grantee, her heirs and assigns," the Johnson County property. The deed further states that the grantors are " lawfully seized of an indefeasible estate, in fee."

Bertha died on September 8, 2009. She was preceded in death by Franklin.[3] Nancy Jo Jennings was appointed as administrator pendente lite of Bertha's probate estate. In January 2013, Jennings filed a " Petition for Discovery of Assets" alleging that the 1994 warranty deed conveying the Johnson County property to Bertha transferred " the owner's interest in [the] property" and, thus, had terminated the beneficiary deed in favor of Atkinson by operation of law. Jennings asked the circuit court to enter judgment directing the surrender of the Johnson County property as an asset ...


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