author: KELLY, Judge.

text:
    Gary Leon RILEY, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 40211.
    Missouri Court of Appeals, Eastern District, Division Two.
    Oct. 9, 1979.

      Henderson, Heagney & Thomas, Philip Heagney, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Weldon W. Perry, Jr., Steven Scott Clark, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

Gary Riley, appellant, was indicted by the Grand Jury of the City of St. Louis and charged in two separate indictments — No. 77 — 193—B and No. 77 — 194—B—with five offenses against the criminal laws of the State of Missouri. In Cause No. 77-193-B he was charged in Count I with the offense of robbery in the first degree; in Count II, armed criminal action; and in Count III, assault with intent to kill. In Cause No. 77-194 — B he was charged in Count I with the offense of robbery in the first degree and in Count II with armed criminal action.

On September 13, 1977, he, with counsel, entered pleas of guilty to the two robbery in the first degree counts, the assault with intent to kill count, and the armed criminal action count alleged in Count II of Cause No. 77-193-B. The armed criminal action count in Cause No. 77-194-B was nolle prossed by the state. On his pleas of guilty the trial court sentenced him to 17 years imprisonment in the custody of the Missouri Department of Corrections on the two robbery in the first degree counts and the assault with intent to kill count, said sentences to be served concurrently and not consecutively. On his plea of guilty to the armed criminal action count in Cause No. 77-193-B he was sentenced to a term of 3 years, said sentence to be served consecutively with the other sentences imposed at the same plea proceedings on the other charges.

On September 23, 1977, his counsel filed an appeal from the conviction on the armed criminal action count only.

On December 1, 1977, while the appeal was still pending in this court, appellant pro se, filed a “Motion to Vacate, Set Aside, or Correct Sentence Brought Under Rule 27.-26” on the form set out in the appendix to Rule 27.26. According to this Motion the sentences appellant sought to have vacated, etc. were those imposed in the Circuit Court of the City of St. Louis in cases whose numbers were “unknown” for the offenses of “robbery, first degree; assault with intent to kill with malice; armed robbery; and two counts of armed criminal action,” for which he was sentenced on September 13, 1977, to “three seventeen year sentences, and one three year sentence running consecutive, (sic)” He failed to answer question No. 6 on the form: “Did you appeal from the judgment of Conviction?” His response to questions 7(a) and (b) inquiring to what court he had appealed and the result of such appeal and the date of the result, was “does not apply.”

The grounds stated for vacating, setting aside or correcting his convictions were: (1) that his plea was involuntary for the reason the judge threatened him prior to the guilty plea with a fifty year sentence if he did not plead guilty to the 17 years; (2) he did not knowingly and intelligently waive his right to a jury trial, to cross-examination, and confrontation of state witnesses, to compulsory process for the attendance of witnesses, to allow the state prove his guilt beyond a reasonable doubt, but that they were waived out of fear of the judge’s threats to the movant; (3) that his plea of guilty was given under coercion and duress because the trial judge had become involved against him and he had not been advised that he could file a motion to disqualify the judge; (4) that his pleas of guilty were in violation of Article I, Sections 2 and 10 of the Missouri Bill of Rights and the 5th, 6th and 14th amendments to the United States Constitution.

He further stated in response to question. No. 9 — “State concisely and in the same order the facts which support each of the grounds set out in (8), and the names and addresses of the witnesses or other evidence upon which you intend to rely to prove such facts” — that:

(a) Movant will testify that his lawyer told him bluntly that [the judge] stated and told him that if the movant did not take the 17 years, that [the judge] would give the movant 50 years;
(b) Movant will testify that he appeared and answered questions accordingly because he was scared of [the judge]; and
(c) The movant will testify that as the result of the statements, the movant entered his plea of guilty; and that movant was scared of what action [the judge] would take if the movant would not cooperate and plead.

The Motion was not verified as required by Rule 27.26(c).

Simultaneously with the filing of his 27.-26 Motion, appellant filed an “Application for Disqualification of Judge.” This latter motion was sustained and the cause assigned to another judge of the Circuit Court of the City of St. Louis.

On December 13, 1977 the Circuit Judge to whom the Motion had been assigned entered an order including findings of fact and conclusions of law denying appellant’s Rule 27.26 Motion, after ruling that he was not entitled to the assistance of counsel or to an evidentiary hearing thereon. This order noted that neither the Motion nor the forma pauperis affidavit filed by appellant was notarized and that this alone was grounds warranting its dismissal. It further recited that the transcript of the plea proceedings refuted the allegations of appellant concerning threats made to him by the sentencing judge, that he did not knowingly and intelligently waive those constitutional rights referred to in his Motion, and that the other allegations of his Motion neglected to allege specific facts, but rather alleged mere conclusions. Appellant’s Motion was “dismissed with prejudice.”

On January 3, 1978, appellant filed an application for appointment of counsel, for an appeal, for leave to appeal in forma pauperis, and for allowance of a transcript in forma pauperis. On the same date the trial court filed an order giving an additional reason for overruling defendant’s 27.26 Motion, granting defendant leave to appeal in forma pauperis, and appointing an attorney to represent him on appeal.

The “additional reason for overruling defendant’s 27.26 Motion” was the pending appeal from the judgment in Cause No. 77-193-B, in violation of the provisions of Rule 27.26(b)(2).

On March 2,1978, appellant filed a Notice of Appeal “from the judgment” denying his 27.26 Motion for a hearing on his convictions in Causes Nos. 77-193-B and 77-194-B entered on the 27th day of December, 1977. Later, on March 13, 1978, appellant filed a Motion for Special Order to File a Late Notice of Appeal in this court. While this Motion was pending, on March 20, 1978, appellant filed a second 27.26 Motion directed against the judgment and sentence imposed in Cause No. 77 — 193—B on the armed criminal action charge from which he had appealed. In this Motion appellant alleged that the appeal on that charge had been dismissed and admitted that the trial court was correct in dismissing his prior 27.26 Motion on the grounds that an appeal was pending on the armed criminal action judgment.

On March 27, 1978, this court sustained appellant’s Motion to File a Late Notice of Appeal from the judgment denying his 27.-26 Motion entered on December 27, 1977, and allowed him 10 days to file the Notice. This late Notice of Appeal was filed on March 28, 1978.

On March 30, 1978, the trial court denied appellant’s second 27.26 Motion filed on March 20,1978, for the same reasons it had overruled the prior 27.26 Motion, and for the further reason that it was foreclosed because the ground presented therein had been raised in the earlier 27.26 Motion. Appellant filed a Notice of Appeal from this judgment on March 31, 1978.

The rulings we are asked to review were entered prior to November 6,1978, the date on which Fields v. State, 572 S.W.2d 477 (Mo. banc 1978) was handed down; therefore the Rule enunciated therein with respect to the appointment of counsel for indigent pro se movants was inapplicable.

Rule 27.26(b)(2) specifically provides that a motion to vacate, set aside or correct a sentence cannot be maintained while an appeal from the conviction and sentence is pending or during the time within which an appeal may be perfected. The filing of a Rule 27.26 Motion while on appeal of the judgment and sentence sought to be vacated therein is still pending, renders the Motion premature and subject to dismissal on that ground alone. Turner v. State, 559 S.W.2d 555, 556 (Mo.App.1977); Faught v. State, 539 S.W.2d 750, 751 (Mo.App.1976); Gibson v. State, 536 S.W.2d 506 (Mo.App.1976).

To support the dismissal of a motion under Rule 27.26 to vacate and set aside conviction, it is only necessary for the Court of Appeals to show that the trial court’s action was proper and not that the reasons assigned by the trial court were correct. Turner v. State, 559 S.W.2d 555, 556[1], The Rule is designed to discover and adjudicate all claims for relief in one application and to avoid successive motions. Fields v. State, 572 S.W.2d 477, 480 (Mo. banc 1978). One of the reasons for requiring that the motion be verified, stated in the Instructions on the form for filing of the motion, is that “any false statement of a material fact therein may serve as the basis of prosecution and conviction for perjury.” Appellant, by his failure to verify this Rule 27.26 Motion, and alleging therein that no appeal was pending when in fact one was, deliberately or unwittingly misled the trial court and attempted to evade the onus of the verification requirement.

Under these circumstances we conclude the trial court did not err in dismissing appellant’s Rule 27.26 Motion to Vacate, etc., because an appeal was pending and therefore the Motion could not be maintained. Rule 27.26(b)(2). The withdrawal of this appeal on January 25,1978, was not called to the attention of the trial court until appellant filed his second Rule 27.26 Motion on March 20, 1978, at which time only the armed criminal action plea was attacked.

However, because of the declared exclusivity of the remedy afforded by Rule 27.26 and the provisions of paragraph (c) of the Rule that the motion include every ground known to the prisoner for vacating and setting aside the conviction and sentence, and in the interest of trying all known grounds at the same time in one proceeding instead of trying them piecemeal, together with the fact that at the time the Motion was filed an appeal was pending and that the Motion itself was unverified, the dismissal should not have been “with prejudice.” It was properly dismissed because it was premature and in violation of paragraphs (b)(2) and (c) of Rule 27.26, but it should have been without prejudice to filing a new Rule 27.26 Motion in proper time and in a verified form.

Inasmuch as we conclude that the trial court did not err in dismissing appellant’s two Rule 27.26 Motions, but that the dismissal should have been without prejudice, pursuant to the authority of Rule 84.14 we affirm the dismissal of the two Motions without prejudice.

STEPHAN, P. J., and STEWART, J., concur.

      . The general rule applicable where a direct appeal is taken from a guilty plea is stated in State v. LePage, 536 S.W.2d 834, 835[1] (Mo.App.1976); the scope of review is restricted to whether the court accepting the plea had jurisdiction of the subject matter and whether the criminal charge is sufficient.


source: Caselaw Access Project

author: REINHARD, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James TIPPETT, Appellant.
    No. 40483.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 9, 1979.

      Karl F. Lang, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Katheryn Marie Krause, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard Poehling, Asst. Circuit Atty., St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant was charged with the possession of heroin, a Schedule I controlled substance. After a trial before a jury, he was found guilty and sentenced by the court pursuant to the provisions of § 195.200.1(3) to fifteen years in the Department of Corrections. This appeal followed.

The defendant makes no challenge to the sufficiency of the evidence. He contends first that the court erred in overruling his motion to suppress because the heroin was illegally seized.

The evidence was seized by Detectives Hylla and Jacobsmeyer of the St. Louis Police Department. On the evening of March 31, 1977, they conducted a surveillance of the Bell Manor Hotel located at 3656 Cook in the City of St. Louis. The officers had information supplied by a confidential informant that defendant was distributing heroin out of the third floor front apartment. During their observation of the hotel, they estimated that fifteen automobiles drove up to the hotel, a passenger or the driver would alight from the vehicle, enter the hotel, reappear several minutes later and depart from the scene. After keeping watch for approximately 50 minutes, the officers entered the hotel to learn defendant’s room number for purposes of securing a search warrant. They entered through the front door, which they stated was open, and then ascended the stairs to the third floor of the building. They indicated that the stairwell door at the third floor was open and that when near the top of the stairs they heard the defendant say: “Let’s mix the dope and cap it.” They recognized his voice because a prior throat injury suffered by defendant made it distinctive. The detectives then walked to the open door of defendant’s room and discovered him poised with two clear plastic bags containing a brown powder in his right hand and money in his left hand. Defendant unsuccessfully attempted to hurl the bags out of the window when he saw the officers. The bags were seized by Detective Jacobsmeyer and subsequent analysis by a criminologist revealed that the powder contained heroin.

At the hearing held on his motion to suppress, defendant introduced evidence tending to show that the detectives illegally entered his room by forcibly kicking in the door. He introduced photographs taken the morning after his arrest portraying the damage to the door. He also presented evidence that the police had illegally entered the hotel by breaking in the front door and had jimmied the stairwell door on the third floor to reach said floor.

Our review of this claim is limited to a determination of whether the evidence was sufficient to sustain the trial court’s finding. State v. Duncan, 540 S.W.2d 130, 136 (Mo.App.1976). As with other issues tried to the court without a jury, when judging the sufficiency of the evidence, we accept all evidence tending to support the trial court’s conclusions and disregard all inferences which could be drawn to the contrary. See State v. Cook, 557 S.W.2d 484, 485 (Mo.App.1977).

Here, the court was confronted with two conflicting versions of the events which transpired on the evening of defendant’s arrest. It was for the trial court to judge the credibility of the witnesses and resolve any conflicts or inconsistencies in their testimony, id. at 485, and that court’s decision on the issue of credibility is binding on this court. State v. Oldham, 546 S.W.2d 766, 769 (Mo.App.1977).

With these principles in mind, we find that the trial court properly overruled defendant’s motion to suppress. A war-rantless search is generally considered to be unreasonable under the Fourth and Fourteenth Amendments unless it is within one of the exceptions to the warrant requirement. One exception is a search incident to a lawful arrest. State v. Moomey, 581 S.W.2d 899, 901 (Mo.App.1979). Another exception is seizure of evidence in plain view. State v. Epperson, 571 S.W.2d 260, 263 (Mo. banc 1978), cert. denied - U.S. -, 99 S.Ct. 2820, 61 L.Ed. 274 (1979).

The plain view doctrine mandates that the police have a prior justification for the initial intrusion and that they come across the evidence incriminating the accused inadvertently. Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1973). In this instance, the defendant’s direct reference to narcotics supplied probable cause for his arrest and thus justified the initial intrusion. Once the officers entered the room and perceived the defendant standing by the bed with the bags of brown powder in his hands, the bags were subject to seizure as evidence in plain view. Discovery of the heroin in this fashion was not a search within the meaning of the Fourth and Fourteenth Amendments. State v. Collett, 542 S.W.2d 783, 786-787 (Mo. banc 1976); State v. Sain, 412 S.W.2d 131, 135 (Mo.1967).

Defendant’s other point is that the trial court erred in finding that he had previously been convicted of two felonies under the laws of Missouri relating to controlled substances. Defendant was convicted in 1965 under § 195.020 RSMo 1959 for possession of less than 35 grams of marijuana. Section 195.020 made possession of any narcotic drug a felony. Defendant now urges that a general revision of the drug laws in 1971, which reduced possession of marijuana under 35 grams to a misdemean- or, retroactively reduced his 1965 conviction to a misdemeanor and thus required that he be sentenced under § 195:200.1(2) RSMo 1975 Supp., which provides a minimum sentence of five years, and not § 195.200.1(3) RSMo 1975 Supp., which provides a minimum sentence of ten years.

Defendant relies upon State v. Reiley, 476 S.W.2d 473 (Mo.1972) and its interpretation of § 1.160 RSMo 1969 to support his argument. Section 1.160 provides:

No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses and the recovery of the fine, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended except (1) that all such proceedings shall be conducted according to existing laws; and (2) that if the penalty is reduced or lessened by any alteration of the law creating the offense, the penalty or punishment shall be assessed according to the amendatory law.

In Reiley, the defendant was convicted of possession of a narcotic drug and sentenced to three years imprisonment. While the case was on appeal, the statute was amended, the amendment making the offense a misdemeanor rather than a felony. The Supreme Court remanded the case for assessment of punishment consistent with the revision of the statute.

The circumstances of Reiley are, however, different than those we are confronted with in this case. Here, sentence and judgment were entered against defendant prior to any amendment in the law, and no amendments or changes took effect before a final disposition of the 1965 conviction. In ex Parte Wilson, 330 Mo. 230, 233, 48 S.W.2d 919, 920 (banc 1932) the Supreme Court in construing then § 4468 RSMo 1929 (now § 1.160) stated:

And the meaning of the exception to the general provisions is equally clear when the exception is considered in connection with the general provisions; that is, that any offender against the criminal laws of this state shall have the benefit of any reduction in the punishment prescribed for the offense by an amendment of the law creating the offense which becomes effective after the commission of the offense but before the entry of judgment and sentence.

We have generally held that statutes are to apply prospectively only, unless a clear legislative intent that they be given retroactive operation appears. Gray v. State, 524 S.W.2d 172, 173 (Mo.App.1975). We find no such legislative intent here, and we decline to adopt a construction of § 1.160 which would only further unsettle and complicate the trial of criminal cases. This point is without merit.

Judgment affirmed.

GUNN and CRIST, JJ., concur.

      . “[P]robable cause exists where ‘the facts within the knowledge [of the officers] and of which they had reasonably trustworthy information [are] sufficient within themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” State v. Dayton, 535 S.W.2d 479, 486 (Mo.App.1976) quoting Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

      . At that time, marijuana was defined as a narcotic drug. § 195.010(17) RSMo 1959.


author: CRIST, Judge.

text:
    STATE of Missouri, Respondent, v. Kerry BROWN, Appellant.
    No. 40545.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 9, 1979.
    Robert C. Babione, Public Defender, Erica B. Leisenring, St. Louis, for appellant.

      John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CRIST, Judge.

Defendant was convicted by a jury for the offense of escape from lawful custody in violation of Section 557.351, RSMo. 1975 Supp. His punishment was assessed at four years imprisonment in the Missouri Department of Corrections. We affirm.

Defendant contends the evidence on which the indictment was based was legally insufficient. He was in lawful custody by reason of two convictions for assault with intent to kill. While admitted to Homer G. Phillips Hospital on May 10, 1975, he left such custody by cutting his chains and leaving his hospital bed. He was arrested in California and returned to Missouri in June, 1977. Defendant was charged by indictment on February 14, 1978 and filed a motion to dismiss and/or quash the indictment, for the reason above enumerated, in March of that same year.

A hearing was held on defendant’s motion where it was determined that the sole evidence for issuance of the indictment was the testimony of a St. Louis Police Officer, Detective McCord, to the effect that he had travelled to California pursuant to a writ or warrant and had arrested defendant on an escape charge. No documentary evidence was presented to the grand jury and the indictment proceedings were not transcribed. The motion was denied and defendant obliged to proceed to trial.

Although Missouri courts have required a grand júry to hear evidence before it returns an indictment, it has long been recognized that the grand jury is the judge of the sufficiency and competency of that evidence. State v. Selle, 367 S.W.2d 522, 526 (Mo.1963); State v. Randolph, 139 Mo.App. 314, 123 S.W. 61, 62 (1909). Thus, so long as there be some evidence to support issuance of an indictment, Missouri courts are loath to pass upon its sufficiency. Selle, supra; Randolph, supra. Were it otherwise, a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. See Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408-409, 100 L.Ed. 397 (1956). Defendant’s first point is denied.

Finally, defendant says he was prejudiced by the repeated use of the word “escape” during his trial. The prosecuting attorney asked a witness whether he recalled an escape attempt. Defense counsel’s objection to the term “escape” was sustained by the court and the jury instructed to disregard the question. Twice more the witness referred to an “escape” attempt attributable to defendant, as did yet another witness. Each time defense counsel objected, and each time the objection was sustained and the jury admonished to disregard use of the term “escape”. After his last objection to use of this conclusory term, defense counsel moved for a mistrial, which motion was denied by the court.

Defendant submits that use of the term “escape” was itself a legal conclusion on what should have been an ultimate issue of fact. We hold that given the nature of the crime for which defendant stood charged, the word is indeed conclusory, but that defendant suffered no prejudice thereby. State v. Reynolds, 517 S.W.2d 182, 183 (Mo.App.1974). The term escape is a word of common usage, a descriptive term for which substitution is difficult. And, in every instance in which the word was uttered, the jury was instructed to disregard its use.

Furthermore, as recognized in State v. McClain, 531 S.W.2d 40 (Mo.App.1975), the granting of a mistrial is a drastic remedy and,

[t]he trial judge has a duty to evaluate the whole situation to ascertain whether some other remedy short of a mistrial will cure the error, and that the appellate court reviews that decision only to verify that there has been no abuse of discretion.

No such abuse having been demonstrated, defendant’s last point is also denied.

Affirmed.

REINHARD, P. J., and GUNN, J., concur.


text:
    STATE of Missouri, Respondent, v. Jerry C. MYERS, Appellant.
    No. 40620.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 9, 1979.
    Adam B. Fischer, Durley, Keating & Fischer, Sedalia, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., James F. McHenry, Pros. Atty., Jefferson City, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from his conviction by a jury of murder second degree. The jury assessed punishment at twenty-five years imprisonment and the court entered judgment accordingly.

During the late evening hours of February 24, 1977, a shooting incident at the Wildwood Apartments in Cole County resulted in the death of Marsha Sue Myers. The Jefferson City Police office was informed of the occurrence and dispatched the Sheriff of Cole County and other law enforcement personnel to the site. Upon their arrival, they took Jerry Myers, the victim’s husband into custody. Myers was subsequently charged with murdering his wife.

The police investigation revealed that the homicide occurred in the bedroom of the couple’s apartment. The defendant had returned home from a tavern where he had been playing cards with friends. He and his wife had apparently quarreled about his consumption of alcoholic beverages. The decedent had then proceeded to bed and was in bed when struck by the fatal shot which was a projectile fired from a 30-30 caliber rifle. The defendant testified that he did not intend to kill his wife. He stated that the gun fired accidentally as he was backing out of the bedroom, and that he was standing on the left side of the bed at the time the gun discharged.

At the trial, Mark Schreiber, a special investigator for the Cole County Prosecuting Attorney’s office, related a substantial part of the results of the investigation concerning the incident. He indicated that the victim had sustained massive injuries to her skull. He described the entry wound as being located in the upper left hand side of the head, and the exit wound as being located in the upper right hand side of the head. A search for the projectile which caused the mortal wound disclosed that after exiting the decedent’s skull, it traveled through the two pillows upon which she had been lying, struck the wall and then bounced back onto the bed. The bullet was found with wadding from the pillows clinging to it and the base of the bullet pointing towards the victim’s head. When questioned by the Prosecuting Attorney whether any relationship, linear or otherwise existed between the ingress and egress wound and the holes in the pillows leading to where the bullet was found Schreiber stated: “all of the holes that went through the skull of the victim and through the pillows appeared to be in a straight line. In other words they lined up.” The Prosecuting Attorney then asked: “if you followed that line out from the projectile through the straight line created by the other points of puncture, into what area of the room would it have taken you?” Schreiber responded that tracing the line backwards would lead to a point on the right side of the bedroom.

The apparent purpose of this testimony was to discredit the defendant’s testimony as to his location in the room at the time the shot was fired. The defendant admits that he fired the gun and that the bullet hit his wife.

On appeal, defendant alleges that the trial court erred when it permitted Schreiber to testify as to the path of the bullet through the decedent’s skull and pillows. He further claims that the court erred in permitting Schreiber to state his opinion as to the line of fire of the bullet which killed the victim. He claims that “no proper foundation had been laid [sic] upon which said witness could base expert opinion in regard to the line of fire, because the evidence failed to show that said witness possessed expert qualifications.” The defendant does not contend that this testimony was not a proper subject for expert testimony; he claims only that Schreiber was not properly qualified as an expert on this subject.

The rules governing the competency of persons to testify as an expert are well-established. A witness is capable of testifying as an expert although his knowledge touching the question at issue may have been gained by practical experience rather than by scientific study or research. State v. Rhone, 555 S.W.2d 839, 841 (Mo. banc 1977). “The test of expert qualification is whether he has knowledge from education or experience which will aid the trier of fact in forming an opinion on the subject matter of the inquiry.” State v. Harvell, 527 S.W.2d 445, 448 (Mo.App.1975).

We conclude that the court did not err in permitting this testimony. Schreiber had been a deputy sheriff for approximately four years and then a special investigator for approximately four years. He stated that he had investigated deaths caused by gunshot wounds on “numerous occasions.” We believe this experience properly qualified him as an expert to state his opinion on this subject. See e. g. Brown v. State, 140 Ga. 160, 230 S.E.2d 128, 131 (Ct.App.1976). Finally, we note that “the qualification of an expert witness in a criminal case is a matter resting primarily in the sound discretion of the trial court and is not reversible on appeal absent a clear showing of abuse of that discretion.” State v. Harvell, 527 S.W.2d at 447. We find no abuse of discretion here. The jury could consider Schreiber’s qualifications in deciding how much weight to give his testimony. State v. Windmiller, 579 S.W.2d 730, 734 (Mo.App.1979). Defendant’s point is without merit.

Judgment affirmed.

GUNN and CRIST, JJ., concur.

      . Frankly, much of Schreiber’s testimony falls within the category of giving facts and appearances rather than opinions. The court had sustained defendant’s objection to the admission of photos of the victim’s body while lying on the bed. State v. Wisdom, 84 Mo. 177 (1884) is a Supreme Court of Missouri Case wherein the court was confronted with testimony somewhat similar to Schreiber’s. The court stated at 186-87:
      One Williams, not an expert, who testified for the state, having said he saw a wound in the right side of Judy’s head a little behind the right ear, was asked: “From what you saw of the ball as it went in, how did it appear to range?” He replied: “It appeared to range toward the left eye.” Defendant objected to this question and answer as incompetent, and because the witness was not an expert and could not testify as one. Further along in his testimony this witness said: “I saw blood on the side of his face; I saw the hole where the ball went in. His left eye was black and apparently shoved out.” This witness was not testifying as an expert, but describing what he had seen, giving facts and appearances rather than opinions. There is no doubt under the evidence that the shot killed Judy, and this testimony of Williams, even if incompetent, was not material.


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Harold MONTGOMERY, Defendant-Appellant.
    No. 40768.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 9, 1979.
    Robert Babione, Public Defender, Blair K. Drazic, Lyndia R. Glasgow, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Gordon L. Ankney, Asst. Circuit Atty., Jefferson City, for plaintiff-respondent.
   DOWD, Presiding Judge.

Appellant (herein defendant) was convicted of feloniously stealing an automobile contrary to §§ 560.156 and 560.161, RSMo. 1969. Diming the trial and at the close of all the evidence the court granted the State leave to substitute an information for the indictment adding the words “acting with another” after the defendant’s name. Defense counsel promptly objected to the amending language.

Defendant was convicted and sentenced to three years imprisonment. Defendant appeals.

Defendant’s sole point on appeal is that the trial court erred by allowing the State to amend the information to charge the defendant of acting with another.

Rule 24.02 allows for amendment of in-formations prior to verdict if no additional or greater crime is charged thereby and if substantial rights of the defendant will not be prejudiced. Rule 24.02; State v. Roberts, 506 S.W.2d 817, 818 (Mo.App.1974); State v. Reynolds, 536 S.W.2d 493, 497 (Mo.App.1976).

Defendant contends that he was prejudi-cially surprised by the amendment and was unable to meet the new charge.

We find that the court did not err in allowing the amendment. The amendment did not charge a different or additional crime. State v. West, 484 S.W.2d 191, 195 (Mo.1972); State v. Morgan, 546 S.W.2d 207, 208 (Mo.App.1977); State v. Owens, 550 S.W.2d 211, 213 (Mo.App.1977).

While we agree that the ultimate question is one of prejudice, the defendant has failed to demonstrate how he was prejudiced by the amendment. In State v. Wilson, 544 S.W.2d 859 (Mo.App.1976) the court stated the test of prejudice is whether evidences and defenses available to the defendant before the amendment would still be available to him after the amendment. Id. at 862.

The defendant merely states in his brief that the amendment was unfair and prejudicial. This conclusory statement is not sufficient to meet the test of Wilson. We find that the defendant was not prejudiced by the amended information.

Judgment affirmed.

REINHARD and CRIST, JJ., concur.


author: BILLINGS, Presiding Judge.

text:
    LEWIS COUNTY, a Political Subdivision of the State of Missouri, Plaintiff-Appellant, v. TEXAS COUNTY, a Political Subdivision of the State of Missouri, Defendant-Respondent.
    No. 11034.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 10, 1979.

      J. Patrick Wheeler, Canton, for plaintiff-appellant; Jules Victor DeCoster, Canton, of counsel.
    Wm. Duke Hiett, R. M. Becker, John S. Beeler, Houston, for defendant-respondent.
   BILLINGS, Presiding Judge.

Suit to quiet title to 120 acres of land located in Texas County. The trial court found and determined title to the tract was in Texas County and quieted title accordingly. We reverse and remand with directions.

Plaintiff Lewis County based its claim of title on an indemnity patent from the United States to the State of Missouri and a patent from the State of Missouri to Lewis County, both patents arising out of federal and state swamp land legislation. Inherent in the trial court’s ruling is that the 120-acre tract in Texas County was swamp land under United States and Missouri law.

In 1850 the Congress of the United States enacted what is commonly referred to as the Swamp Land Act of 1850. Swamp and overflowed lands in Arkansas and the other States of the Union were granted to said States. Inter alia, the Secretary of the Interior was directed to make out a list and plats of such lands, transmit the same to the governors of the states involved, and, at the request of the governors, cause patents to be issued to the respective states of such swamp and overflowed lands.

In 1855 Congress passed an “Act for the Relief of Purchasers and Locators of Swamp and Overflowed Lands.” In summary this law provided that purchasers and locators of swamp and overflowed lands who had made entries of such public lands prior to the issuance of patents by the states involved were entitled to have patents issued by the United States. Section 2 of this Act, applicable to this case, provided: “That upon due proof . . . that any of the lands purchased were swamp lands . the purchase-money shall be paid over to the said State or States; and where the lands have been located by warrant or scrip, the said State or States shall be authorized to locate a quantity of like amount, upon any of the public lands subject to entry . .” (Our emphasis).

Another Act of Congress in 1857 confirmed the selection of swamp and overflowed lands granted to the States by the Swamp Land Act of 1850 “so far as the [swamp lands] shall remain vacant and unappropriated, and not interfered with by an actual settlement under any existing law of the United States,” and continued in force the Act of 1855.

The Missouri Legislature, shortly after passage of the Swamp Land Act of 1850, began enacting legislation relative to the swamp lands located within Missouri. Woodson, P. J., in the scholarly and informative opinion, cited in footnote 4, traces the various laws passed by our General Assembly which culminated in the Missouri Swamp Land Act of 1868 and now found in Chapter 241, RSMo 1978.

In this case defendant Texas County contended, and the trial court found, that the title to the 120-acre tract passed to Missouri under the United States Swamp Land Acts of 1850 and 1855 and was automatically transferred to Texas County by the Missouri Swamp Land Act of 1868. We disagree.

As noted earlier, the trial court’s conclusion is necessarily bottomed upon the assumption that the 120-acre tract of Texas County land was swamp land. The record is devoid of any evidence to support such an assumption and there is no patent from any government, federal or state, to Texas County. Conversely, the only evidence demonstrates Lewis County received a patent to the subject property from the State of Missouri as indemnity for swamp land pursuant to the indemnity provision found in Section 2 of the Congressional Swamp Land Acts of 1855 and 1857, and Sections 25 and 26 of Missouri’s Swamp Land Act of 1868.

Indemnity Patent No. 3, issued November 4,1872, by the United States to the State of Missouri, inter alia, states:

“And Whereas, in pursuance of said Acts of March 2,1855, and March 3,1857, a Special Certificate, numbered three, and dated the Sixth day of December, 1869, has been issued by the Commissioner of the General Land Office, Authorizing the State of Missouri to locate the quantity of one hundred and twenty acres, (120) as the indemnity contemplated by the Second Section of the aforesaid Act of March 2,1855, and the said certificate having been returned to the General Land Office accompanied by a list showing the selection in satisfaction thereof of the lands hereinafter described, situate in the District of Lands Subject to Sale at Ironton, Missouri, to wit: [describing the subject lands].”

The patent from the State of Missouri to Lewis County, issued December 20, 1872, is as follows:

“Whereas, Under the Acts of Congress of September 28,1850, entitled ‘An Act to enable the State of Arkansas and other States to reclaim the Swamp Lands within their limits,’ and of March 2, 1855, entitled ‘An Act for the Relief of Purchasers and Locators of Swamp and Overflowed Lands;’ also of March 3, 1857, entitled ‘An Act to confirm to the several States the Swamp and Overflowed Lands, selected under the act of September 28, 1850,’ the following described lands have been patented by the United States to the State of Missouri, on the Fourth day of November, 1872, Patent No. 3; and
“Whereas, by Section 1 of an act of the State of Missouri, approved March 27, 1868, entitled ‘LANDS-SWAMP,’ the Swamp and Overflowed Lands were donated to the several counties wherein they are situated, and
“Whereas, Under the provisions of Section 25 of the aforesaid act, the following described lands were located as ‘Indemnity’ for Swamp and Overflowed Lands, situated in Lewis county, to wit: Township Thirty-three (33) North of Range Ten (10) West (Ironton District) The Southwest Quarter of the Southeast Quarter of Section Twenty (20) and the East half of the Northeast Quarter of Section Twenty-nine (29) containing in the aggregate One hundred and Twenty acres (120).
“NOW, THEREFORE, KNOW YE, That the State of Missouri, in consideration of the premises, and in conformity with the act of the General Assembly aforesaid, Has Given and Granted, and by these presents Does Give and Grant unto the said county of Lewis, in fee simple, subject to the disposal of the County Court thereof, and subject also to the various restrictions of law, the tracts of land above described; To Have and to Hold the same together with all the rights, privileges, immunities and appurtenances thereto belonging, unto the said county of Lewis in fee simple, and to its assigns forever.”

The patent was signed by the Governor, Register of Lands, and Secretary of State and duly recorded in the Indemnity Swamp Land Patents record.

The patents are prima facie evidence that all the required statutory steps, federal and state, were taken. Cramer v. Keller, 98 Mo. 279, 11 S.W. 734 (1889). The United States patent shows the State of Missouri was permitted to select 120 acres of public lands in lieu of and as indemnity for Lewis County swamp lands which had previously been purchased or located. The patent from the State of Missouri demonstrates that Missouri had relinquished the Lewis County swamp lands, as specifically authorized under Section 24 of the Missouri Act, in return for 120 acres of other public lands, as provided for in the indemnity section of the Federal Act. By Sections 25 and 26 of the Missouri Act the 120 acres of public and indemnity land, the subject of this suit, was in turn patented to Lewis County. Just as the State of Missouri could not question this transaction, neither can Texas County, a mere political subdivision of the state. Rogers Locomotive Machine Works v. American Emigrant Co., 164 U.S. 559, 17 S.Ct. 188, 41 L.Ed. 552 (1896).

In support of the judgment defendant Texas County cites and relies upon Simpson v. Stoddard County, 173 Mo. 421, 73 S.W. 700 (1903), Morgan v. Stoddard, 187 Mo. 323, 86 S.W. 133 (1905), and § 241.010, RSMo 1978. In both Simpson and Morgan the land in controversy was swamp land and neither of these cases are applicable to the instant lands. Likewise, § 241.010, RSMo 1978, can be of no help to defendant Texas County because this statute donates swamp lands to the counties in which they are located. Not only is there no evidence suggesting the 120 acres in this case was swamp land, the Indemnity Patent from the United States to the State of Missouri and the latter’s patent to Lewis County squarely negate the acreage being swamp land.

We hold the judgment of the trial court is not supported by substantial evidence and is against the weight of the evidence. Further, it erroneously declares the law and erroneously applies the law. Thus, the judgment cannot stand. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment quieting title to the 120 acres is reversed and this cause is remanded and the trial court is directed to quiet the title in the lands in Lewis County.

All concur.

      . Letters received in evidence from the Missouri Department of Conservation, the United States Forest Service, and Texas County Court indicate the following: a sale of the lands by Lewis County of the Missouri Department of Conservation; an exchange of property between the Missouri Department of Conservation and the U. S. Forest Service; and that the 120-acre tract was “completely wooded” and adjacent to Mark Twain National Forest.

      . Act Sept. 28, 1850, c. 84, 9 U.S.Stat. p. 519; now 43 U.S.C.A. Ch. 23.

      . Act March 2, 1855, c. 147, 10 U.S.Stat. p. 634.

      . Scrip: “A certificate (as issued by a federal or state government) that the holder is entitled to take up or receive an allotment of land.” Webster’s Third New International Dictionary, Unabridged (1971).

        “Swamp Land Scrip: “This scrip was issued to these who might do the work of drainage and reclamation, or, perhaps, at times for cash to be expended upon such work, and later on, at the will of the holder of such scrip or of his assignees, it was ‘located,’ as it was locally called, by selecting from the list of the local register of lands those certain swamp lands which the ‘locater’ desired to buy. Afterwards such swamp land scrip was turned into the receiver of public moneys of the local land office, who thereupon issued a certificate of entry ... to the holder of the scrip who was the purchaser of the land. This receipt, or certificate of entry, entitled the purchaser to a patent . . . .” Woodson, P. J., in Russ v. Sims, 261 Mo. 27, 169 S.W. 69, 72 (1914).

      . Act March 3, 1857, c. 117, 11 U.S.Stat. p. 251.

      . Section 1. In order to provide for the reclamation of all overflowed and swamp lands which were granted to the State [of] Missouri for that purpose by an act of congress, entitled “an act to enable the State of Arkansas and other states to reclaim the swamp lands within their limits,” approved September twenty-eight, one thousand eight hundred and fifty, all of said lands in this state are hereby donated to the counties in which they may be, respectively, situated, and shall be the absolute property of such counties, for the purposes hereinafter designated; and the register of lands is hereby required to furnish to the clerks of all the county courts a certified copy of the approved and corrected lists of the swamp lands in each county whenever called for by the said clerk or clerks.
      * * * * * *
      Sec. 24. The governor of the state is hereby authorized to relinquish the title of the state to such swamp and overflowed lands as may have been sold by the general government since the passage of the law donating said lands to the state in which they lie, whenever the counties interested in said lands may, by an order of the county court, authorize him so to do.
      Sec. 25. It is made the duty of the register of lands of this state to act as swamp land agent, to locate such public lands as the State of Missouri may be authorized to locate under the provisions of the act of September 28, 1850, granting swamp and overflowed lands to the State of Missouri, and other acts of congress since that time passed relating to said lands, and to obtain the right of the State under said acts, and settle and adjust any and all claims the State of Missouri may have against the United States, growing out of said grants of land. He shall receive all moneys or scrip from the general government due the various counties as indemnity on account of swamp and overflowed lands sold by the government of the United States since the donation of said lands to the State of Missouri, and deposit the same in the state treasury, and cancel all records in his office on which indemnity money has been received. He is authorized to obtain such proof from the various county courts as is necessary to secure the indemnity money from the general government; and he is hereby empowered to employ assistants for the performance of the duties required in this act, subject to the approval of the governor.
      Sec. 26. It is made the duty of the treasurer of this state to pay said money or scrip mentioned in the preceding section to the authorized agents of the counties to which said money or scrip may be made payable by the provisions of this act.
      * * * * * *


author: FLANIGAN, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Sharon Jean GONTERMAN, Appellant.
    No. 10881.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 11, 1979.
    Tyce S. Smith, Waynesville, Reilley, Bell & Weinberg, Chicago, Ill., for appellant.
    John Ashcroft, Atty. Gen., Bruce E. Anderson, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, for respondent.
   FLANIGAN, Chief Judge.

The defendant was charged, in a two-count information, with the unlawful possession of two Schedule III controlled substances § 195.240. Count I charged the possession of lysergic acid, § 195.017 6(3)(d), (L.1971 H.B. 69), and Count II charged the unlawful possession of phencyclidine, § 195.017 6(3Xg) (L.1971 H.B. 69). The information charged, and the evidence showed, that the two offenses were committed simultaneously.

A jury was waived and the trial court, after hearing the evidence, found the defendant guilty on both counts. After defendant’s motion for new trial was overruled, the trial court entered the judgment and sentence set forth below.

Although the possession of the lysergic acid was simultaneous with the possession of the phencyclidine, the offense charged in Count I is separate and distinct from the offense charged in Count II. State v. Williams, 542 S.W.2d 3, 5[3-7] (Mo.App.1976).

This court has “no jurisdiction to review the record on appeal in the absence of a final judgment in the trial court.” State v. Chase, 415 S.W.2d 731, 732 (Mo.1967). To similar effect see State v. Gilbert, 507 S.W.2d 25 (Mo.App.1974); State v. Robbins, 481 S.W.2d 618 (Mo.App.1972); State v. Summers, 477 S.W.2d 721, 722 (Mo.App.1972); State v. Jones, 477 S.W.2d 729, 730 (Mo.App.1972).

Rule 28.03, embodying the provisions of § 547.070, authorizes an appeal by the defendant “[ajfter the rendition of final judgment in any criminal case.” “For purposes of this provision [Rule 28.03] final judgment requires the imposition of sentence.” State v. Harris, 486 S.W.2d 227, 229[1] (Mo.1972); State v. Jaeger, 394 S.W.2d 347, 352[7] (Mo.1965).

It should be observed that the “judgment and sentence” of the trial court is a so-called “consolidated or general sentence,” that is, “one which does not specify the punishment imposed under separate counts” of the information. 24 C.J.S. Crim.Law § 1567(4), p. 430. In the majority of jurisdictions a general sentence, although frequently criticized, is valid if the sentence does not exceed the aggregate of the permissible sentences upon all of the counts on which defendant was properly found guilty.

In Missouri, however, when a criminal is found guilty, by a court or jury, of two separate offenses, a separate punishment must be fixed for each offense and the failure of the instant “judgment and sentence” to include the assessment of a separate punishment for each offense renders it fatally defective. State v. Runyon, 411 S.W.2d 69, 71[1] (Mo.1967); State v. Bursby, 395 S.W.2d 155, 161[7] (Mo.1965); State ex rel. Dalton v. Blair, 365 Mo. 1167, 294 S.W.2d 1, 3[1] (1956); State v. Huff, 173 S.W.2d 895, 896[4] (Mo.1943); State v. Meadows, 331 Mo. 533, 55 S.W.2d 959[2-3] (Mo.1932).

The incumbent judge of the Circuit Court of Dade County is the successor of the judge before whom this case was tried. The latter judge did, in accordance with Rule 26.01(c), make a general finding on each of the two counts and each finding was one of guilt. The successor judge, upon remand, has authority to impose a punishment for each of the two offenses pursuant to the findings of guilt made by his predecessor. State v. Tettamble, 450 S.W.2d 191, 193[2] (Mo.1970) (and authorities there cited).

In accordance with the procedure outlined in State v. Chase, supra, 415 S.W.2d 731 (Mo.1967), the submission of this cause on appeal must be set aside and the cause remanded to the trial court with directions to cause defendant to be brought before the court. Rule 27.08. The court should sentence the defendant on each count pursuant to the findings of guilt heretofore made by the trial court and should render final judgment in the cause. After the rendition of final judgment, defendant will have the right to take an appeal by filing a notice of appeal within the time prescribed by Rule 81.04. Defendant will then be entitled to a review by this court of the cause upon its merits “provided all proper procedural steps required by law and the rules of [the supreme court] are taken.” State v. Bledsoe, 249 S.W.2d 457, 458 (Mo.1952).

Appeal dismissed and the cause remanded.

All concur, except PREWITT, J., not participating because not a member of the court when case was submitted.

      . Unless otherwise indicated all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.

      . JUDGMENT AND SENTENCE

      Now on this 5th day of December, 1977, Defendant Sharon Jean Gonterman appears in open court in person and with her attorney Tyce S. Smith. The Court, having overruled defendant’s motion for new trial, informs Defendant she has been tried by the Court and found guilty of one count of possession of Ly-sergic Acid and one count of possession of Phencyclidine and asks her if she has any legal cause to show why judgment should not be pronounced against her. Defendant fails to show cause. The Court fixes sentence in accordance with the verdict at two years.
      IT IS ORDERED AND ADJUDGED BY THE COURT that Defendant Sharon Jean Gonter-man, having been found guilty of one count of possession of Lysergic Acid and one count of possession of Phencyclidine, be committed to the custody of the Department of Corrections of the State of Missouri for a period of two years, to be confined in the manner prescribed by law until the sentence and judgment of this Court be complied with or until Defendant shall otherwise be discharged by due process of law.
      IT IS FURTHER ORDERED AND ADJUDGED that the State have and recover from Defendant the costs of this prosecution and that execution be issued therefor.

      . See 91 A.L.R.2d 511 (Propriety of general sentence covering several counts in information or indictment not exceeding in aggregate the sentence which might have been imposed cumulatively under the several counts.)
      “It has been correctly said of the general sentence that there is ‘universal recognition that the practice, while permissible, is unsatisfactory.’ For years appellate courts have been admonishing trial judges that it is far more desirable to impose a separate sentence on each count, and that the general sentence should not be used.” Wright, Federal Practice and Procedure, Volume II, § 527, p. 418.

      . In this respect the case at bar differs from the situation in State v. Hopkins, 573 S.W.2d 744 (Mo.App.1978) where the trial judge, after hearing the evidence, failed to make a general finding. It was necessary, in Hopkins, to remand the cause for a new trial.


author: EWELL, Judge.

text:
    UNION PLANTERS NATIONAL BANK OF MEMPHIS, Co-Executor of the Will of James Frank Inman, Deceased, Plaintiff-Appellee, v. James Edward INMAN et al., Defendants-Appellants.
    Court of Appeals of Tennessee, Western Section.
    March 20, 1979.
    Certiorari Denied by Supreme Court Oct. 22, 1979.
    See also, Tenn.App., 588 S.W.2d 763.
    Fyke Farmer, Nashville, for James Edward Inman and Mary Joyce Inman Behla.
    James D. Causey, Memphis, for Annabel Inman.
    Robert L. Taylor, Taylor, Marshall & Uhl-mann, Memphis, for Robert S. Inman, co-executor.
    Robert M. Johnson, Susan Callison, Wid-man, Harrold, Allen, Dixon & McDonnell, Memphis, for plaintiff-appellee.
   EWELL, Judge.

This is an appeal from the Order of Judge James M. Tharpe of the Circuit Court of Shelby County, Tennessee, sustaining plaintiff’s (proponent’s) motion for summary judgment in a will contest proceeding. The will was that of James Frank Inman dated November 16, 1971. The proponent of the will was Union Planters National Bank of Memphis, Tennessee, one of the co-executors. Portions of the will were challenged by two of the three children of the testator on the ground of undue influence exercised by Attorney John D. Martin, Jr., draftsman of the will. The proponent moved for a summary judgment pursuant to Rule 56 of the Rules of Civil Procedure insisting that there was no genuine issue as to any material fact, and summary judgment was entered decreeing that the will was the entire, true and valid last will and testament of James Frank Inman. The contestants appealed seeking reversal of the Trial Court and remand of the case for jury trial of the issue of devisavit vel non, specifying two assignments of error as follows:

I.
The judgment of the lower court sustaining the motion for a summary judgment and finding that there was no genuine issue as to any material fact in the cause amounts to a denial of Appellants’ right to trial by a jury guaranteed by Article I, Sec. 6 of the Constitution of Tennessee and their statutory right under T.C.A. 32-401, 405 and 408 to have the issues made up under the direction of the court and tried by a jury; they having demanded a jury trial in their answer to the complaint and also moved the court to make up the issues.
II.
The lower court erred in making the finding as a ground for sustaining the motion for a summary judgment that there is no genuine issue as to a material fact in this cause; that the will propounded by the Plaintiff is the entire, true and valid last will and testament of James Frank Inman, and was not tainted by fraud, misrepresentation or undue influence; and that Plaintiff is entitled to a judgment as a matter of law.

In November of 1971 James Frank In-man, age 77, was terminally ill with lung cancer but mentally alert and active in the management of his business affairs. On November 5, 1971, he and his wife, Annabel Inman, had an office conference with his accountant, Wesley Taylor, to discuss inheritance taxes and the advisability of making a new will to replace his then existing will dated January 21, 1965, prepared by Attorney John D. Martin, Jr. During the course of that conference, Mr. Taylor, at the request of Mr. Inman, made an appointment with Attorney Martin for November 8, and on that date Mr. and Mrs. Inman and Mr. Taylor had a conference with Attorney Martin in his office. Thereafter Attorney Martin drafted a new will for Mr. Inman, and on November 12 Mr. Taylor picked up two carbon copies and had one delivered to the home of Mr. Inman. On November 16 Mr. and Mrs. Inman returned to the offices of Attorney Martin and; in his absence, Mr. Inman executed the new will in the presence of Martin’s associates, S. Shepherd Tate and W. Emmett Marston, who witnessed the execution thereof.

In the 1965 will Mr. Inman had made a specific bequest to the West Tennessee Baptist Orphanage, had left outright to his wife all furniture, furnishings, or articles of tangible personal property of a personal nature located in their home together with 25% of his adjusted gross estate, and left the remainder of his estate equally to his three children of a former marriage, namely, Robert S. Inman, James E. Inman and Mary Joyce Inman Behla. Robert S. Inman and Union Planters National Bank were named co-executors in that will. The new will was substantially identical to the 1965 will, except the property was left in trust rather than outright. The same executors were named, and the same charitable bequest was included. 25% of the remainder was placed in a marital deduction trust, and 75% into a trust for the testator’s children and grandchildren. The trusts were subject to spendthrift provisions; the testator’s wife took all trust income for life, with the power to encroach upon principal, if necessary; the wife had a power of appointment over the marital trust, failing which it passed at her death to her daughter (who was no relation to the testator); and the principal of the children’s trust was distributable to the testator’s grandchildren when the last child died.

On January 31, 1972, Mr. Inman died at the age of seventy-eight, and his will was probated in common form in the Probate Court of Shelby County on February 2, 1972, with Robert S. Inman and Union Planters National Bank being appointed co-executors thereof.

On March 3, 1976, James Edward Inman and Mary Joyce Inman Behla, two of the children of the testator, filed a Petition to Contest the Will and subsequently the same was certified to the Circuit Court of Shelby County, Tennessee.

The insistences of the contestants with reference to the will are set out in their answer to the “Complaint Propounding Will” filed in the Circuit Court proceeding as follows:

The provisions of the 1971 Will creating the trusts of the testator’s residuary estate are not the will of the said James Frank Inman, because he was, as defendants are informed, believe and charge, unduly influenced to create the trusts by the attorney who was the draftsman of the instrument. At the time of the making of the instrument, said attorney, according to his statements and admissions, including a Protest filed with the Internal Revenue Service, represented to the said James Frank Inman that E. H. Crump & Company, a client of said draftsman, had a large deficiency claim of several hundred thousand dollars against the defendant, James Edward In-man; “that the creditors of James Edward Inman, including E. H. Crump & Company with its large deficiency judgment claim, could seize Mr. Inman’s property to the extent that it might be left to his son, and inquired of Mr. Inman whether he wanted to take precautions against this.” The draftsman then outlined the law relating to a spendthrift clause, and has stated that in his opinion he also mentioned that Robert S. Inman, the other son, “likewise had large exposure through real estate ventures.” To avoid embarrassment, according to the statements made by the draftsman, of naming only James Edward Inman in the spendthrift clause, the instrument was drawn so as “to protect all the children or persons who might become income beneficiaries” of the trusts. The representations that E. H. Crump & Company had a large deficiency claim of several hundred thousand dollars against James Edward Inman, and that “creditors of James Edward Inman, including E. H. Crump & Company with its large deficiency judgment could seize Mr. Inman’s property to the extent that it might be left to his son” were false, as was also the statement that Robert S. Inman “likewise had large exposure through real estate ventures.” But for these misrepresentations made by the draftsman of the 1971 Will, the testator would not have devised and bequeathed his residuary estate unto Union Planters National Bank of Memphis as Testamentary Trustee, or provided that 25% of the rest, residue and remainder of his estate should be held in what was denominated the Anna Bell Riggsbee Inman Marital Deduction Trust and 75% thereof to be held by a Trustee under what was denominated “my children’s trust.”
Wherefore, these defendants ask that it be adjudged that those portions of the 1971 Will creating the Anna Bell Riggs-bee Inman Marital Deduction Trust of 25% of the residuary estate and the so called children’s trust of 75% of the residuary estate are not the valid will of the testator, James Frank Inman; and demand a jury to try the issue.

The record in this case consists of more than eight hundred pages and numerous exhibits. Four depositions and four affidavits were filed by the proponent and ten depositions and four affidavits were filed by the contestants. The proponents moved the Court, pursuant to Rule 56 of the Rules of Civil Procedure, for a summary judgment “on the grounds that the papers on file herein, including the transcript of the Probate Court proceedings, the depositions, and the Tate, Marston and Lawrence affidavits filed herewith, show that there is no genuine issue as to any material fact, and that Plaintiff is entitled to a judgment, as a matter of law, allowing the continuance of the probate of the 1971 Will as the true Last Will and Testament of James Frank Inman, deceased.” After hearing oral argument the Court took the Motion under advisement and subsequently entered “Summary Judgment”, the material portions of which were as follows:

IT APPEARING TO THE COURT that there is no genuine issue as to material fact in this cause; that the will propounded by Plaintiff is the entire true and valid last will and testament of James Frank Inman, and was not tainted by fraud, misrepresentation or undue influence; and that Plaintiff is entitled to a judgment as a matter of law.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court:
1. That the November 16, 1971, Will of the testator is the entire, true and valid last will and testament of James Frank Inman.

In the first assignment of error contestants insist that the entry of a summary judgment in a will contest proceeding amounts to an improper denial of the right to a jury trial as provided for under Article I, Sec. 6 of the Constitution of Tennessee and Secs. 32-401, 405 and 408 of T.C.A. We find no reported decision directly in point, but in numerous cases will contests have been concluded on demurrer sustained by the Court or by verdict directed by the Court whereby contestants were denied the right to submit the issues to a jury. See Hickey v. Beeler, 180 Tenn. 31, 171 S.W.2d 277 (1943); Cude v. Culberson, 30 Tenn.App. 628, 209 S.W.2d 506 (1947); Jones v. Sands, 41 Tenn.App. 1, 292 S.W.2d 492 (1953); Curry v. Bridges, 45 Tenn.App. 395, 325 S.W.2d 87 (1959); Bradford v. Bradford, 51 Tenn.App. 101, 364 S.W.2d 509 (1962); Anderson v. Anderson, 220 Tenn. 496, 419 S.W.2d 166 (1967). The scope of the Rules of Civil Procedure is clearly defined in Rule 1, as follows:

Subject to such exceptions as are stated in them, these rules shall govern the procedure in the circuit and chancery courts of Tennessee and in other courts while exercising the jurisdiction of the circuit or chancery courts, in all civil actions, whether at law or in equity, including civil actions appealed or otherwise transferred to those courts. These rules shall not be applicable to courts of general sessions except in cases where such courts by special or private act exercise jurisdiction similar to that of circuit or chancery courts. These rules shall be construed to secure the just, speedy and inexpensive determination of every action, (emphasis added)

The subject action, civil in nature, was properly transferred to the Circuit Court from the Probate Court of Shelby County under the applicable statute. Accordingly, we find that where there is no genuine issue as to any material fact summary judgment under Rule 56 is appropriate in a will contest proceeding and does not amount to an improper denial of contestants’ right to a jury trial. The first assignment of error is overruled.

In the second assignment of error contestants insist, in essence, that the Trial Court erred in granting summary judgment because under the peculiar facts of this case there was a genuine issue as to a material fact. With respect to motions for summary judgment Rule 56.03 provides, in part, as follows:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The Court’s role in ruling on a motion for summary judgment is similar to its role in ruling on a motion for a directed verdict, and it must view the pleadings and evidence before it in the light most favorable to the opponent of the motion and draw all legitimate conclusions of fact therefrom in their favor. If after so doing a disputed issue of material fact is made out, the motion must be denied. Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276 (Tenn.App.1977); Stone v. Hinds, 541 S.W.2d 598 (Tenn.App.1976).

This contest is predicated solely on the conversation between the testator, James Frank Inman, and his attorney, John D. Martin, Jr., in the office of Martin and in the presence of Inman’s accountant, Wesley Taylor, and his wife, Annabel Inman, on November 8, 1971. It is undisputed that in the course of that conversation Attorney Martin discussed with the testator options available to him in making his last will and testament including the use of trusts. It is also undisputed that Attorney Martin introduced to the testator the idea that he might want to include in his will a spendthrift clause which would serve to protect the inheritance of James Edward Inman, one of the sons of the testator, from his creditors, including E. H. Crump & Company (one of the clients of Martin), which had a large deficiency claim of several hundred thousand dollars against him. Attorney Martin further suggested to the testator that his other son, Robert S. Inman, had a large exposure through real estate ventures. After being informed as to the effect of spendthrift clauses and the law relating thereto, the testator instructed Attorney Martin to prepare a will containing two trusts and with a spendthrift clause to protect all of his children or persons who might become income beneficiaries of the trusts.

The will was subsequently drafted and a copy was placed in the hands of the testator on November 12. On November 16 he executed the original of the will, as drafted, without any further contact with Attorney Martin.

Contestants insist that on November 8, 1971, the date of the attorney-testator conference, James Edward Inman was not indebted to E. H. Crump & Company in any amount whatsoever, all of his indebtedness to that Company having been previously satisfied; and they insist that but for the misrepresentations of Attorney Martin with respect to outstanding obligations of James Edward Inman, the testator would not have changed his 1965 will so as to create the two trusts qualified by the spendthrift clause. Contestants seek to have only those portions of the 1971 will creating the two trusts declared invalid as not being the will of the testator, James Frank Inman.

The Trial Judge had before him a large volume of conflicting evidence as to whether or not James Edward Inman was in fact indebted to E. H. Crump & Company on November 8, 1971. We must view the conflicting evidence in the light most favorable to the contestants, and, therefore, for the purpose of our review we must assume that on the date in question James Edward In-man was not indebted to E. H. Crump & Company to any extent whatsoever and that the comments of Attorney Martin to the testator in this regard were not factual but were made in error due to lack of current accurate information on the subject. A careful review of the record reveals no genuine issue as to any other material fact. We then arrive at the basic issue as to whether or not erroneous statements of Attorney Martin relating to the financial condition of one of the testator’s sons form a sufficient basis in law to invalidate a portion of the will.

We take note of the fact that Attorney Martin and the testator conferred on only one occasion and that both Inman’s accountant, Wesley Taylor, and his wife, Annabel Inman, were present during the entire conference. It is also significant that the will was executed on November 16 in the absence of Attorney Martin after the testator had been in possession of a copy of the will since November 12. Accountant Wesley Taylor had a copy from and after November 12. Mrs. Inman testified that her husband reviewed the will in his home and asked her to do likewise before the same was executed on November 16. There is no suggestion in the record that the testator was other than mentally alert and in full control of all of his affairs during the time in question. He lived for a period of two and one-half months after the will was executed without revoking same or making any changes. Under these facts the contestants have not made out a case of undue influence for it is not influence that vitiates a will, but undue influence; and it must go to the extent of depriving the testator of his free agency, and amount to moral coercion which he is unable to resist. Halle v. Summerfield, 199 Tenn. 445, 287 S.W.2d 57 (1956) and Cude, supra.

In their pleadings the contestants charge that the representations made by Attorney Martin constituted undue influence. However, upon review of all the evidence it appears that contestants also raise the issue of fraud. The two grounds of undue influence and fraud are closely related, but in the case of fraud the free agency of the testator remains, but he is misled into doing that which he otherwise would not have done. See Cude, supra and the annotation at 28 A.L.R. 787. Granting for the purposes of our review that the representations of Attorney Martin were false, the record clearly reflects that they were made in good faith in the belief that they were true and accurate. There is no suggestion in the record that Attorney Martin intentionally misrepresented anything to the testator, or that he had any personal interest in the matter beyond the proper representation of his client. In order to set aside a will on the basis of fraud, the fraud must be of the active, tortious, deceitful kind and not of the constructive or resultant nature. It is not every misstatement that is material and not every statement that is in the legal sense false, and not every exertion of influence that is unjust. Hager v. Hager, 13 Tenn.App. 23 (1930). We find as a matter of law that the alleged conduct and representations of Attorney Martin were not of such nature as to void the will or any part thereof on the ground of fraud.

Taking the facts before us in the light most favorable to the contestants, we find that, at most, this is a case where the draftsman of the will was mistakenly informed as to the financial condition of a son of the testator and in the course of his conference with the testator related to him erroneous information. As previously noted, there is a total absence of elements essential to support a charge of undue influence or fraud. In the final analysis the only substantial insistence of the contestants is that a portion of the testator’s will is invalid because it was made under a mistake and misapprehension of the facts as they existed at the time of the execution of the will. The Supreme Court of this State in the case of Anderson v. Anderson, 220 Tenn. 496, 419 S.W.2d 166 (1967) affirmed the 1917 case of Bowerman v. Buris, 138 Tenn. 220, 197 S.W. 490 and quoted the following statement therefrom:

Moreover, if the evidence could be at all effective, under our system, two points would have to be established: Firstly, that the testator was laboring under a mistake as to the fact; and, secondly, that if the truth had been known he would have made a different disposition, and we think these facts should appear in the will itself, (emphasis supplied)

We have been unable to find a Tennessee case wherein the mistake and misapprehension was brought about by statement of counsel. The New Hampshire case of Leonard v. Stanton, 93 N.H. 113, 36 A.2d 271 (1944) involves a factual situation where the draftsman allegedly misled the testator as to the legal effect of his will. In that case the Court held as follows:

(A)ccording to the prevailing view, if the testator knew and approved the contents of his will, it is immaterial that he mistook the legal effects of the language used or that he acted upon the mistaken advice of counsel; provided that the advice “was given in an honest belief that it was sound.”

The Missouri case of Elam v. Phariss, 289 Mo. 209, 232 S.W. 693 decided in 1921 is based upon facts not substantially dissimilar to the case before us. In that case the Supreme Court of Missouri quoted with approval language from the case of Couch v. Easthan, 27 W.Va. 796 loc. cit. 805, 55 Am. Rep. 346 as follows:

The mistake which will avail to set aside a will is a mistake as to what it contains, or as to the paper itself, not a mistake either of law or fact in the mind of the testator, as to the effect of what he actually and intentionally did.

See also Allmon v. Pigg, 82 Ill. 149, 25 Am.Rep. 303 (1876).

We find the foregoing to be the majority view, and the Tennessee cases of Bowerman, supra and Anderson, supra are not inconsistent therewith. In this case it does not appear within the will itself that Inman was laboring under a mistake as to the facts and that if the erroneous statements had not been made by Martin, he would have made a different disposition. Therefore, the second assignment of error is overruled.

The Trial Judge correctly found that there was no genuine issue as to a material fact in this cause and that the proponent was entitled to a judgment as a matter of law. The decision of the Trial Court is in all things affirmed.

On the date this case was argued before this Court the attorney for the appellants filed herein a Motion seeking a determination by this Court as a matter of law that the co-executor, Union Planters National Bank of Memphis, has no right to oppose the contest of the will and that the widow, Annabel Riggsbee Inman, has no standing to oppose the contest. These issues had not been previously raised in or passed upon by the Circuit Court or the Probate Court, and counsel for the appellants desires an initial ruling from us. We decline to rule one way or the other. This Court has no original jurisdiction. Its jurisdiction is appellate. T.C.A. 16-408. Accordingly, the motion is overruled and disallowed.

The costs of appeal are adjudged against the appellants.

NEARN and SUMMERS, JJ., concur.


text:
    In re Estate of James Frank INMAN, Deceased. Robert S. INMAN, Co-Executor of the Estate of James Frank Inman, Deceased; James Edward Inman and Mary Joyce Inman Behla, Appellants, v. UNION PLANTERS NATIONAL BANK OF MEMPHIS, Co-Executor of the Estate of James Frank Inman, Deceased, Appellee.
    Court of Appeals of Tennessee, Western Section.
    Aug. 22, 1979.
    Certiorari Denied by Supreme Court Oct. 22, 1979.
    See also, Tenn.App., 588 S.W.2d 757.
    Robert L. Taylor, Taylor, Marshall & Uhl-mann, P.C., Memphis, for Robert S. Inman.

      Fyke Farmer, Nashville, for James Edward Inman and Mary Joyce Inman Behla.
    S. Sheperd Tate, W. Thomas Hutton, Martin, Tate, Morrow & Marston, P.C., Memphis, for appellee.
   EWELL, Judge.

This litigation originated in the Probate Court of Shelby County where the estate of James Frank Inman is in the process of administration. The appeal is from an order entered on the petition of James Edward Inman and Mary Joyce Inman Behla, children of James Frank Inman and beneficiaries under his will, seeking restoration to the estate of funds allegedly improperly disbursed to Annabell Riggsbee Inman, widow of James Frank Inman and beneficiary under his will, and seeking to have the co-executors show cause why they should not be ordered to pay penalty and interest which had accrued on taxes against real property of the estate, which taxes the co-executors failed to pay when due.

The Probate Judge found that the co-executor, Union Planters National Bank, had the right to make the advancements to the widow and held that restoration was not required but that proper accounting therefor should be made upon distribution and closing of the estate. The Court further held that the co-executors, Union Planters National Bank and Robert S. Inman, should restore to the estate, the sum of $2,703.78 with interest thereon from date of payment, which amount constituted the total of penalties, interest and court costs incurred by reason of their failure to pay when due the real estate taxes in question. James Edward Inman and Mary Joyce Inman Beh-la appeal from that portion of the order relating to advancements made to the widow; and Robert S. Inman, co-executor, hereinafter referred to as Inman, appeals from that portion of the order wherein he is held jointly liable with his co-executor, Union Planters National Bank, hereinafter referred to as Bank, for the restoration of funds to the estate.

James Frank Inman died on January 31, 1972, and his will was admitted to probate on February 2, 1972. He was survived by his second wife, Annabell Riggsbee Inman, and three adult children of a former marriage, Robert S. Inman, James Edward In-man and Mary Joyce Inman Behla. Pursuant to the will Robert S. Inman and Union Planters National Bank, Memphis, Tennessee, were appointed co-executors.

Oh March 3, 1976, James Edward Inman and Mary Joyce Inman Behla filed a petition, subsequently amended, to contest that portion of the will creating trusts funded by the residuary estate. The portion of the will naming the co-executors was not contested. The will as probated was sustained in Circuit Court, and the contestants have appealed. The co-executors continue to act as such.

For a period of thirty-one months from February, 1972 through August, 1974 the Bank advanced to the widow the sum of $1,000.00 each month. In addition, on December 22, 1975, the Bank advanced to her the sum of $3,000.00 bringing the total of advances to $34,000.00. These advances were made after notice by the Bank to Inman as co-executor. He responded through his attorney stating that although he did not object to the advancements he assumed no personal liability or liability as co-executor for such in the event there were not sufficient funds to pay taxes, administration expenses, debts and other charges against the estate. No advances have been made since December 22, 1975. The petition questioning the propriety of these advances was filed in the Probate Court in February, 1977.

The will, as probated, provides that after the payment of a $10,000.00 charitable bequest and a bequest of the tangible personal property to the widow, and the payment of all debts, administration expenses and death taxes, the residue of the estate is to be held in two separate trusts, with 25% of the residue to go the Marital Deduction Trust and the remaining 75% to go the “children’s trust”. The Bank is trustee of both trusts. During the lifetime of the widow all of the net income of both trusts is to be paid to her. In addition, the testator provided in Item X of the will as follows:

My trustee shall have the right and the duty in the event the net income from the said trust profits during the life of my wife is not sufficient to maintain and support her in the manner to which she is accustomed or to provide her with all necessary medical and hospital services, to encroach upon the corpus and to pay so much thereof to my wife which, coupled with the net income, will support and maintain her in the manner to which she is accustomed and will provide her with all necessary medical and hospital services.

The estimated value of the estate is $800,000.00. At the time of the hearing there was a contested potential deficit in death taxes owed to Internal Revenue Service of $191,000.00 and a contested potential deficit in death taxes owed to the Department of Revenue of the State of Tennessee of $20,000.00. The proof is not clear as to whether or not the income of the estate was sufficient to cover all of the advances made to the widow at the time they were made. The Bank insists that advances were made from income only; and the petitioners insist that it was necessary for the Bank to invade the corpus. In any event, it appears from all the proof that the assets of the estate are more than adequate to pay all of the estate’s administration expenses and taxes and adequately fund the Marital Deduction Trust so that the prior advances may be charged thereto.

Petitioners-appellants insist that the residuary estate cannot be determined and the testamentary trusts funded until the co-executors have paid all death taxes and costs and expenses of administration and that pending such payments all assets of the estate and income therefrom must be held to be so applied. They rely heavily on the Sixth Circuit case of Smith’s Estate v. Commissioner of Internal Revenue, 168 F.2d 431 (1948), a case originating in the Middle District of Tennessee. In an opinion written by Judge Miller the Court states:

The executor was entitled to temporarily accumulate the income during the necessary period of administration, even though ultimately after the administration was completed the beneficiaries would be entitled to the unused income accruing subsequent to the date of the death of the testator. Usually a careful executor will not make distribution until after the period for the filing of claims has expired, and a legatee or beneficiary can not require it. In cases where there is practical assurance that the assets of the estate are more than ample to take care of all claims and expenses, an executor may as a practical matter and for the convenience of the legatees make partial distribution before the period has expired, but he is not required to do so.
The estate was still in the period of administration; the fiduciary had not begun to function as the trustee. The contention that the fiduciary was appointed trustee by the will and qualified as such on September 3, 1940 at the same time when it qualified as executor does not change the situation. Although it qualified as trustee at that time, it did not begin to perform the duties as trustee at that time. The positions of executor and trustee are separate, even though held by the same person. Garner v. Dowling, 58 Tenn. 48, 49. Although it was not necessary for the Bank to make a final settlement of its accounts as executor and formally turn over the assets of the estate to itself as trustee in order for it to act as trustee (Third National Company v. Commerce Union Bank, 181 Tenn. 509, 181 S.W.2d 759), and the beneficiaries of the trust are entitled to the income from the trust fund from the date the executor came into possession of sufficient assets of the estate to justify the setting apart the trust fund from the remainder of the estate (Fidelity Trust Co. v. Service Laundry Co., 160 Tenn. 57, 70, 71, 22 S.W.2d 6), yet distribution of such income is not necessarily required at the time when income begins to accrue.
We do not construe American National Bank v. Embry, 181 Tenn. 392, 181 S.W.2d 356, 359, strongly relied upon by petitioner and appellant, as holding otherwise. That case involved the question whether the life tenant or the remainder-men of a trust estate created by will were entitled to interest from assets of the decedent’s estate while in process of administration. It held that the life tenant was entitled to such income “from the date of the death of the testatrix,” but it did not hold that such income was immediately payable. To the contrary the opinion specifically stated “the residuary estate is set up as of the date of the death of the testator, subject to be charged with, and so diminished by taxes, other legacies and the expense of administration.” Obviously, time must be allowed after the death of the testator for the executor to legally determine the net assets of the residuary estate, which will constitute the trust estate, and to legally determine even through litigation where necessary, the respective rights of beneficiaries in the income therefrom. The income may accumulate or accrue during such period of time, but it is not necessarily distributable. People’s Pittsburgh Trust Co. v. United States, 6 F.Supp. 447, 454, 79 Ct.Cl. 233.

Judge Miller has concisely stated the law of this State relevant to the issue now before us. From the record we find that there was and is “practical assurance that the assets are more than ample to take care of all claims and expenses”. All beneficiaries will be properly protected under the order of the Probate Court requiring the co-executors to make proper accounting for such advances in the distribution and closing of the estate, and we find no error in the refusal of the Court to require the Bank to restore the advances to the estate.

A major asset of the estate is the acreage located at the intersection of Interstate 240 and Farrisview Road in Memphis. At the time of the testator’s death a portion of this property was under mortgage securing indebtedness to E. H. Crump and Company, and the real property taxes, city and county, were paid by Crump from an escrow account held in connection with that indebtedness. During the course of administration a small portion of the real estate in question was sold with the purchaser assuming the Crump indebtedness. Following that sale Crump ceased to pay real property taxes on the remainder of the property retained by the estate, and the co-executors failed to pay when due the city and county real property taxes for the years of 1975, 1976 and 1977. These taxes were ultimately paid by the Bank after a total of $2,703.78 had accrued in penalty, interest and court costs. The Probate Judge held the co-executors jointly and severally liable for restoration to the estate of that sum, plus interest thereon from date of payment. Inman insists that the Court erred in imposing responsibility and liability upon him and charges that the failure to pay when due resulted solely from the negligence of the Bank which had possession of all of the liquid assets of the estate.

The property was assessed as two separate tracts consisting of 15 acres and 18.6 acres. Both tracts were carried on the tax roles as being owned by “Robert S. Inman, et al, Union Planters Bank.” All tax notices relating to the 15 acre tract were addressed to Robert S. Inman, et al., 3131 Farrisview Road, Memphis, Tennessee, 38118; and all tax notices relating to the 18.6 acre tract were addressed to Robert S. Inman, et al., Memphis, Tennessee, 38118. From the proof it appears that neither In-man nor the Bank was aware of the failure to pay these taxes until February, 1977.

During this time there was pending other litigation involving the same real estate wherein Inman, individually, and the Bank, as representative of the estate, were adversaries. Inman, therefore, had an interest in this real estate both personally and as co-executor of the estate.

We think the third paragraph of Item I of the will is significant. In that paragraph the testator stated:

So that there can be no dispute with respect to the fee of my son, I direct that my son be paid a fee for his services of an amount equal to two (2%) per cent of my gross estate, and his acceptance of this appointment shall evidence his agreement to such fee. He will be particularly valuable in the administration of my estate in disposing of interests which I have in real estate.

From the above we conclude that the testator desired that Inman serve as co-executor because of his knowledge and expertise in real estate. The proof reveals that he is a successful developer of real estate in and around Shelby County, and it appears that the testator directed the payment of a substantial fee to him in compensation for his services in this regard.

When Inman accepted the appointment as co-executor he assumed the responsibilities of that office as set forth in Section 695 of Phillip’s Pritchard Law of Wills and Administration of Estates (3rd ed. 1955) as follows:

In the custody, management, and disposition of the estate committed to his charge, as in the collection of the assets, the representative is bound to perfect good faith, and to the exercise of that degree of diligence, prudence, and caution which a reasonably prudent, diligent, and conscientious business man would employ in the management of his own affairs of a similar nature; and he is responsible for any negligence causing loss, or for any want of good faith producing injury, in case of failure to perform the duties required of him according to this rule.

From the failure to pay the real property taxes when due we conclude that the co-executors did not exercise that degree of diligence, prudence and caution which a reasonably prudent, diligent and conscientious business man would employ in the management of his own affairs of a similar nature. With regard to liability for the resulting loss to the estate as between the two co-executors, the law is summarized in 34 Corpus Juris Secundum, Executors and Administrators, Section 1045 at pages 1323 and 1324, as follows:

A wrong done or a duty omitted by the person sought to be charged must lie at the foundation of liability of one representative for the acts or omissions of his associate. As a general rule, the liability of one of several executors or administrators extends only to the assets actually received by him, and he is not liable for the acts or omissions of his corepresenta-tives, unless he knew, or should have known, of circumstances requiring him to safeguard the estate. So it has been broadly stated that an executor or administrator is not liable for a devastavit committed by his cotrustee; more precisely, a coexecutor or coadministrator who has not had possession of the assets of the estate, and who has not concurred in, or negligently permitted, a devastavit by his associates, is not liable therefor. A core-presentative is, of course, liable for his own acts or omissions, or for those of his corepresentatives in which he concurs or acquiesces, or to which he assents.

Although the liquid assets of the estate were in the possession of the Bank, Inman was personally familiar with and had knowledge and expertise in relation to the real estate in question. All tax notices were addressed to him only although from the proof we conclude that neither Inman nor the Bank actually received the notices until February of 1977. There is no evidence that either of the co-executors took any action with reference to the taxes prior to that time. We find that the interest, penalty and court costs became a liability against the estate as a result of the omissions of both co-executors. Therefore, we conclude that the Trial Court did not err in holding both Inman and the Bank jointly liable and responsible for the restoration of these funds to the estate.

Accordingly, all assignments of error are overruled and the judgment of the Trial Court is in all things affirmed. The cost of appeal will be assessed óne-half against the appellants, James Edward Inman and Mary Joyce Inman Behla, and their surety, and one-half against the appellant, Robert S. Inman, and his surety.

MATHERNE and NEARN, JJ., concur.