Appellants Jacob and Louise Jensen filed a claim for $20,000 in the Probate Court of Clay County against the Estate of John R. McCall, deceased. The claim, which was *310 based upon an alleged contract between the Jensens and McCall, was allowed after a hearing. This order was appealed to the Circuit Court by the Executor, Claude C. Cooper, on behalf of the Estate. A jury disallowed the claim and judgment was entered for the Estate. Thereupon, the Jen-sens took their appeal tо the Supreme Court. On motion of the executor, the appeal was transferred to this court because it was not shown that the amount in dispute exceeds $15,000. Apparently, there had been no evidence adduced at the trial tending to prove that the net value of the assets of the Estate available to the executor for the payment of any judgment in favor of appellants is in excess of $15,000.
Jacob and Louise Jensen, man and wife, and John R. McCall, a single man then about 84 years оf age, subscribed to a written “Contract”, dated May 28, 1963. Its salient terms were:
“WHEREAS, it is the intention of the first party to make his home with the second parties upon the conditions hereinafter set out, it is by the parties now agreed as follows:
“In consideration of the sum of One Dollar ($1.00), to the second parties paid by the first party, the receipt of which is hereby acknowledged, the second parties agree that during the life time of the first party, or for that term hereinafter set out, they will furnish a home for the first party in their home in Clay County, Missouri, treating this first party as a member of the family, the meaning of which is that they will furnish his food, laundry, bedclothes, afford him the access to such parts of the house as he may desire except their bedroom, giving him free run of the property, except he is not to have any say in the management of the same, and during which time he shall pay the sum of $5.00 per month during the term of this contract.
“This contract is to last during the life of the first party and in the event the second parties have furnished the above items and services, the first party does agree that upon his death he will have by will provided and here represents he will have available for payment, the sum of Twenty Thousand Dollars ($20,000.-00) to said second parties, jointly, as husband and wife, and he represents that he has this same day executed a will leaving said parties the sum of Twenty Thousand Dollars ($20,000.00), conditioned upon their faithful performance of this agreement.
“In the event during the life time of this contract, the first party’s physician shall advise him that for his best care and treatment he should be confined to a hospital or other facility, then that event shall not be a violation of the obligations of the second parties to this contract.
“Either party may cancel this contract at any time they desire, however, in the event the first party cancels this contract, then first party shall be obligated to pay for the time he has been in the home of second parties, at the rate of Eighty Dollars ($80.00) per month.” (Emphasis added.)
On that same day, May 28, 1963, Mr. McCаll began living in the Jensen home where he remained, intermittently, until October 5, 1963. On August 26, 1963, some three months after the execution of the writing, he was admitted to the North Kansas City Memorial Hospital for surgery on his urinary tract. On September 16, 1963, he was discharged and returned to the Jensen home. Some three weeks later, on October 5, 1963, he was readmitted to the hospital for surgical repair of an inguinal hernia. It seems to have become apparent to him that henceforth he would require continuous nursing care. Uрon discharge from the hospital once again, therefore, and upon the advice of his attending physician, Dr. John M. Williams, he decided to enter the Odd Fellows’ Home where such care was available. He remained there continuously until his death in March of 1965.
*311 After he had taken up residence with the Jensens, Mr. McCall executed his Last Will and Testament, dated July 31, 1963. Paragraph II provided, in part:
“I have entered into a contract with Jacob and Louise Jensen, the terms and the conditions of which arе made a part of this will by reference, and on the condition that the terms of that contract are in force and effect as of the date of my death, I devise and bequeath to Jacob Jensen and Louise Jensen, jointly, as husband and wife, either or the survivor, the sum of Twenty Thousand Dollars ($20,000.00).”
On December 12, 1963, while interned at the Odd Fellows’ Home, Mr. McCall executed a subsequent will which neither made any bequest to the Jensens, nor mentioned them. By January of 1964, his mental condition, previously manifested generally by laрses of memory, deteriorated to the extent that he was adjudicated an incompetent by the Clay County Probate Court. In March of 1965, after an internment of seventeen months in the Odd Fellows’ Home, Mr McCall died there. His will of December 12, 1963 was admitted to probate and Mr.- Cooper was appointed its executor. The Jensens filed their claim against the McCall estate for $20,000, and it has eventually become the subject of this appeal.
Appellants raise a spate of alleged trial еrrors. To begin with, they doubt our jurisdiction. They argue (a) As no exceptions were filed by the Estate to any action taken by the probate court, there was nothing for the circuit court, as an appellate court, to determine,, and that judgment which we now review is a nullity; also, (b) As neither pleadings nor formal defenses were made in the probate court, there was nothing for the circuit court to determine, and, inferentially that court had no power to submit to the jury issues, among them the affirmative defensе of cancellation, which was not formally pleaded, and, (c) “The executor preserved nothing by the affidavit for appeal for the circuit court to acquire, jurisdiction.” We consider these points together.
Some of the questions thus raised are quickly dispelled when it is understood that the formal strictures of the Rules of Civil Procedure do not apply to cases originating in the Probate Court or on appeal therefrom to the Circuit Court. Lenhardt’s Estate v. Lenhardt, Mo.App.,
The jurisdiction of the circuit court on an appeal from the probate court is derivative. It is “no greater and no less than that which the probate court might itself have lawfully exercised”. In re Franz’ Estate, Mo.,
In determining whether it will exercise its jurisdiction on appeal, the circuit court must first conclude that an issue was presented to the probate court respecting that particular matter. That determination may be made from the information contained in the record. In re Nelson’s Estate, supra, 166 S.W.2d p. 338. As to a demand against the estate, it is the demand exhibited, itself, which, if controverted, determines the issues presented. In re Thomasson’s Estate, supra, 196 S.W.2d p. 157. It is clear that appellants’ claim for $20,000 against the Estate was based on that “contract” between them and Mr. McCall which was exhibited with their demand. Their entitlement to payment from the Estate by virtue of their full performance under its terms was the only issue presented to the probate court, and, as the transcript of the testimony presented there discloses, the only issue tried. It was precisely that issue which was tried in the circuit court and it was that trial which we now review. We conclude that the appellate jurisdiction of the circuit court was validly exercised as to it.
In addition to the points we have already discussed, appellants contend aphoristically, “(t)he executor had one trial on the facts and that is all he is entitled to”. By that we understand to mean, as the probate court heard evidence and decided the issue made up by the contro-version of their demand, the Estate was not entitled to yеt another determination of the facts in the circuit court. This ignores the express provisions of Sec. 472.250 which authorized a trial de novo upon such an appeal. The case cited by appellants, Weisguth v. Burke, Mo.App.,
Appellants also assert under Points and Authorities, but without argument or exposition of the two cases they cite, that “(t)he executor preserved nothing by the affidavit for appeal for the сircuit court to acquire jurisdiction”. Appellants have thereby preserved nothing for review. We do not consider this point.
Appellants dispute that Claude C. Cooper, Executor, had standing as an “interested person” to make the appeal from the probate court because “(a)n executor is not one of the exact persons mentioned” in the statute. It is true that executors are not specifically included among those defined as “interested persons” in Sec. 472.-010 [15]. That subsection also provides, however, “This meaning may vary at different stages and different parts of a pro *313 ceeding and must be determined according to the particular purpose and matter involved”. Sec. 472.160 provides:
“1. Any interested person aggrieved thereby may appeal from the order, judgment or decree of the probate court or of the judge thereof in the following cases:
“(1) On all claims against an estate exceeding twenty dollars.”
These sections integrally construed, have been held to extend to personal representatives of estates “a right to appeal whenever their concern appears necessary for the protection of the estate, they being the ‘interested persons’ ”. In re Dugan’s Estate, Mo.App.,
The personal representative is charged with the duty of taking possession of all the personal рroperty of the decedent (Secs. 473.260, 473.263) and must defend all actions brought against him. Secs. 473.270, 473.273. He holds the property as a trustee, for the benefit of the creditors, legatees, heirs and distributees. Rone’s Estate v. Rone, Mo.App.,
Appellants raise several additional points concerning the alleged impropriety of certain instructions submitted to the jury. We do not reach a consideration of them. We have concluded, instead, that the trial court should have sustained the executor’s Motion for Directed Verdict at the Close of All the Evidence because the written instrument of May 28, 1963 was void and unenforceable on its face for lack of mutuality as to decedent McCall’s unperformed, executory obligation to bequeath $20,000 to the Jensens and also because Mr. McCall, during his lifetime and while the “contract” was still executory, exercised his right to cancel his obligation to make the bequest. We have further concluded that appellants have not met their burden of proving that they performed their prоmise.
Our courts have held that the essential elements of a contract are (1) parties competent to contract, (2) a subject matter, (3) legal consideration, (4) mutuality of agreement, and (5) mutuality of obligation. State ex rel. St. Louis Car Co. v. Hughes,
The question becomes one of the quantum of performance. Appellants’ claim for $20,000 presuppоses that they had fully performed; that is, that they had furnished Mr. McCall the defined services *315 from May 28, 1963 until he died, unless such performance was otherwise excused. (We expressly do not pass on the validity of the remedy appellants have chosen to enforce their claim.) From the evidence, we find, as a matter of law, appellants failed to make such proof. A jury could reasonably have found that the appellants received Mr. McCall into their home on May 28, 1963 and gave him the presсribed care until October 5, 1963, when he returned to the hospital for the second time. A jury could even have found that he entered the Odd Fellows’ Home on October 22, 1963 upon the advice of his physician and remained there, upon such advice, until his death, some 17 months later, and that appellants’ obligation to furnish the services during that period was excused by the terms of the instrument. But the instrument not only expressly required Mr. McCall to pay appellants only $5 per month for such services as long as his promise to bequeath them $20,000 remained in effect, it impliedly required appellants to accept only that amount. It is essential to imply such a term in order to give effect to the express terms of the agreement and to the intention of the parties. Williston, Contracts, Vol. II, 3d Ed., pp. 33-36. This bilateral agreement, unenforceable on its face, contained Mr. McCall’s alternative promises (actually, as the promises were illusory, they are best characterized as “offers”) to pay appellants either $5 per month and bequeath them $20,000, or $80 per month without bequest. The furnishing of services by appellants was consistent with the acceptance, by performance, of either of these offers. Only by evidence of the amount accepted by appellants in monthly payment could distinctive proof be made as to which alternative offer appellants had actually accepted.
In order to support their theory of recovery — an action for $20,000 damages for breach of contract to make a bequest in that amount — appellants had the burden of proving that they had accepted only $5 per month from Mr. McCall for such services. (Once again, we do not assess the validity of the remedy appellants employ.) Appellants offered no evidence on this point. Respondent’s proof was that between May 28, 1963 and October 5, 1963, that period during which Mr. McCall lived with the Jen-sens, he wrote checks payable to either Jacob or Louise Jensen, paid from his account, totaling $1715. One, dated August, 1963, for $60, was marked “for roоm and board through August” and “Paid in full”. Another, also dated August, 1963, for $60 was marked “for room and board for September ’63”. Yet another, dated September, 1963, for $30 was marked “September 16 to October 1, 1963, room and board”. Between August, 1963 and October 12, 1963, there were additional checks issued them by Mr. McCall, but bearing no designation as to the reason for payment. Three of them were in the amount of $5, one each for $25, $30, $35 and $50, respectively. Whatever else this evidence may have tended to prove, it was not the acceptance of $5 per month by appellants during the period of their alleged performance. That proof was entirely lacking and because of it, appellants failed to establish their performance and respondent’s breach.
We have concluded as well that appellants made no submissible case because the evidence established as a matter of law that Mr. McCall, during his lifetime, and while the agreement was still ex-ecutory, effectively cancelled his obligation to make the bequest. By the agreement of May 28, 1963, Mr. McCall not only obligated himself to bequeath the Jensens $20,000, “conditioned on their faithful performance of this agreement”, but represented that he had in fact executed his will containing such a bequest. The will containing that provision was executed, in fact, on July 31, 1963. Thereafter, on December 12, 1963, while living at the Odd Fellows’ Home, he executed another will which made no mention of the Jensens and made no provision for them by bequest or devise. Mr. Me- *316 Call’s failure to make provision for such bequest was a clear manifestation of the exercise of his unconditional right to cancel the obligation which remained executo-ry, as long as he was alive. This, although the agreement did not impose upon either party the duty of manifesting the exercise of that right. The agreement provided: “Either party may cancel this contract at any time they desire.” It obviously intended an unconditional power to avoid the contractual оbligations, one to be exercised “at will”, untrammeled by any requirement to give notice. It was this unconditional power to avoid obligations of the contract that rendered them illusory to the extent that they remain executory. Corbin, Contracts, Vol. 1A, pp. 79-81; Williston, Contracts, Vol. 9, 3d. Ed., Sec. 1017A. p. 154, footnote, Cf. Burns v. Beeny, supra, 427 S.W.2d pp. 775-776.
There was no evidence that appellants had suffered any detriment or that Mr. McCall had derived any benefit by the performance of appellants after the date оf cancellation, December 12, 1963, until Mr. McCall died, in March, 1965. The positions of the parties had not changed. Mr. McCall never returned to the Jensen home and the Jensens furnished him no services during that period. Mr. McCall’s obligation to bequeath $20,000 to the Jensens had been effectively cancelled.
Appellants’ final point is that the trial court erred in admitting into evidence the December 12, 1963 will of Mr. McCall because the agreement sued on was “a separate instrument” and since the will did not mention the contract, it was irrelevant. Our discussion of the previous point makes ample answer. The December 12, 1963 will effected cancellation. It was relevant evidence.
The judgment is affirmed.