Bailey v. Richardson

• Court: Missouri Court of Appeals
• Writing for the Court: MANFORD
• Citation: Bailey v. Richardson, 667 S.W.2d 720 (Mo. App. 1984)
• Decision Date: 21 February 1984
• Docket Number: No. WD,WD
• Parties: Sylvia M. BAILEY, Appellant, v. Noel RICHARDSON, James T. Cronin, Shirley B. Cronin and John Doe and Mary Roe, and Legatees, devisees, heirs at law and all persons interested under the Will or in the Estate of the deceased, Chester I. Bailey, Respondents. 34104.

Page 720

667 S.W.2d 720

Sylvia M. BAILEY, Appellant, v. Noel RICHARDSON, James T. Cronin, Shirley B. Cronin and John Doe and Mary Roe, and Legatees, devisees, heirs at law and all persons interested under the Will or in the Estate of the deceased, Chester I. Bailey, Respondents.

No. WD 34104.

Missouri Court of Appeals Western District.

Feb. 21, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

March 27, 1984.

Joyce B. Kerber of Paxton & Block, P.C., Independence, for appellant.

John W. Dennis, Jr., of Paden, Welch, Martin, Albano & Graeff, P.C., Independence, for respondents.

Before MANFORD, P.J., and CLARK and KENNEDY, JJ.

MANFORD, Judge.

This is an original action in equity seeking specific performance of an oral agreement to devise real property. The circuit court entered a judgment of dismissal of the petition on the grounds that the cause of action was a claim within § 473.360, RSMo 1978, and by failure to have filed same within six months, the cause was barred. The judgment is reversed and the cause remanded.

Appellant's father, Chester Bailey, died on March 8, 1980. He was predeceased by his wife and appellant's mother, Hazel Bailey in January, 1979. Chester Bailey left a will and first codicil. In addition to other provisions, the Bailey will left to appellant a 40-acre tract. The first codicil, executed some six years after the will, changed the devisee of the 40-acre tract from appellant to James Cronin, the grandson of Chester Bailey. Letters testamentary were published on April 9, 1980, and Noel Richardson was appointed by the court as personal representative of the estate.

On October 8, 1980, appellant filed a petition to contest the Bailey will. On June 9, 1982, appellant filed an amended petition which, under Count I, repleaded the will contest, and under Count II, sought relief by way of specific performance. Under Count II, appellant alleged that prior to his death, Bailey had entered into an agreement with appellant whereby appellant agreed to convey 40 acres to Chester and Hazel Bailey, and in exchange, Chester and Hazel Bailey agreed to execute a conveyance releasing their joint life estate in another 120-acre tract. The Baileys further agreed to devise back to appellant the 40 acres. Under Count II of the amended petition, appellant alleged that the decedent, Chester Bailey, breached the agreement by executing the first codicil to his will wherein the 40 acres was devised to James Cronin, Bailey's grandson.

The case was set for trial, and on the calling up of same, appellant voluntarily dismissed Count I (the will contest) and elected to proceed upon Count II (specific performance). This was met by respondents' motion to dismiss. The motion to dismiss alleged that appellant's "claim" was subject to § 473.360, RSMo 1978, and hence, the statute required the filing of the "claim" within six months of the first publication notice of letters testamentary, and that appellant had failed to file her "claim" within six months, as prescribed by the statute. The circuit court sustained the motion to dismiss and subsequently overruled appellant's motion to reconsider. This appeal followed.

Section 473.360, RSMo 1978 reads as follows:

"473.360. Limitations on filing of claims--when claims barred.--1. Except as provided in section 473.370, all claims against the estate of a deceased person, other than costs and expenses of administration, exempt property, family allowance, homestead allowance, claims of the United States and claims of any taxing authority within the United States, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, which are not filed in the probate division, or are not paid by the personal representative, within six months after the first published notice of letters testamentary or of administration, are forever barred against the estate, the personal representative, the heirs, devisees and legatees of the decedent. No contingent claim based on any warranty made in connection with the conveyance of real estate is barred under this section.

2. Unless written notice of actions instituted or revived under section 473.363 or 473.367 is filed in the probate...