Basler, Estate of v. Delassus

• Decision Date: 29 May 1985
• Docket Number: No. 66344,66344
• Citation: 690 S.W.2d 791
• Parties: In re the Estate of Mary M. BASLER, Deceased, Louis Naeger, Ad Litem, Respondent, v. Margaret DELASSUS and Gertrude M. Valle, Heirs, Appellants, Earl Basler, Respondent-Appellant.
• Court: Missouri Supreme Court

Page 791

690 S.W.2d 791

In re the Estate of Mary M. BASLER, Deceased, Louis Naeger,

Ad Litem, Respondent, v. Margaret DELASSUS and Gertrude M. Valle, Heirs, Appellants, Earl Basler, Respondent-Appellant.

No. 66344.

Supreme Court of Missouri,

En Banc.

May 29, 1985.

Herbert A. Kasten, Jr., Ste. Genevieve, for appellants.

Albert C. Lowes, W. Eric Cunningham, Cape Girardeau, for respondent-appellant.

Ray Dickhaner, Hillsboro, Frank Elpers, Ste. Genevieve, for respondent.

BLACKMAR, Judge.

This case involves important questions of the power of personal representatives and of the authority of the probate divisions of the circuit courts, under the statutory provisions now in force.

The fact situation is not complicated. The testatrix owned, among other holdings, a 209-acre tract of land in Ste. Genevieve County ("the tract"), which she devised to her four children in equal shares. The children were also the residuary legatees and heirs at law, and so the specific devises were in a sense redundant. She named two of her children as coexecutors, with a grandson as alternate executor, and conferred on "my executor or executors as the case may be" a discretionary power of sale of real and personal property, at a price satisfactory to the selling fiduciary. She also specified that, if the devisees of the tract wanted to sell it, her grandson, Earl F. Basler, (not the grandson named as alternate executor) was to have the "first option to purchase ... at market value."

Earl filed identical pleadings in the regular division and the probate division of the circuit court, in five counts. ¹ Count One asserted an oral contract with the testatrix and her husband, who predeceased her, to purchase the tract for $20,000 in consideration for farming it for many years. The remaining four counts sought, in the alternative, monetary awards on various theories with the largest prayer seeking $300,000. The probate pleading was attached to a regular claim form and was not verified.

After Earl filed his claim one of the co-executors filed an application for leave to resign, for removal of the remaining coexecutor, who was Earl's father, and for the appointment of an administrator ad litem. The application was granted and Louis Naeger was appointed. Naeger as administrator ad litem negotiated a compromise with Earl which called for the conveyance of the tract to Earl for a net consideration of $60,000 cash ² plus the release of all Earl's remaining claims. Two of the devisees of the tract objected to the compromise but the probate division, after hearing evidence, approved it, with the proviso that the land was to be surveyed to settle a dispute as to the acreage and that Earl was to pay for any acres in excess of 209 at the rate of $621.53 per acre.

The objecting devisees appealed from the order of the probate division approving the compromise. Earl appealed from the order of the regular division dismissing his petition for specific performance. The appeals were and remain consolidated. The Court of Appeals, Eastern District, affirmed the judgment of the regular division, but reversed the judgment of the probate division, holding that the real property in issue passed from the testatrix to the four devisees and that the personal representative had no authority to convey it elsewhere in settlement of a claim for specific performance. We granted transfer because of the importance of the case, and take the case as on initial appeal.

Section 473.427, RSMo Supp.1984, reads as follows:

When a claim against the estate has been filed or suit thereon is pending, the creditor and personal representative, if it appears for the best interest of the estate, may compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated.

It is argued for reversal of the probate division that the administrator ad litem had no authority to enter into the compromise, on the following bases: (1) that the personal representative had no authority to enter into an agreement affecting title to real estate because, at common law, "title to a decedent's real estate vests directly in the decedent's heirs subject to administration"; (2) that the power of sale was personal to the named executors and could not be exercised by the administrator ad litem; (3) that Earl had not sought specific performance in accordance with the governing statutes, § 473.303, and RSMo Supp.1984 ss473.307 and 473.313, RSMo 1978; (4) that § 473.427, RSMo Supp.1984, authorizing compromise of claims, has no application to a compromise involving title to real estate, at least when the administration is court-supervised administration rather than independent administration; and (5) that the procedures appropriate to court-approved sale or exchange pursuant to §§ 473.460, 473.490, 473.537 and 473.620, RSMo 1978 were not followed. None of the reasons adduced supports the denial of the owner to compromise the claim here involved.

Missouri in 1980 adopted substantial portions of the Uniform Probate Code. The job was patchwork, and some of the existing provisions were continued without harmonization. ³ The general purposes of the revision were: (1) to upgrade the status of the probate courts by establishing them as divisions of the circuit court pursuant to the authority conferred by the revised Article V, Sec. 17 of the Missouri Constitution, adopted in 1976, including the granting of "general equitable jurisdiction"; (2) to vest broader discretion in personal representatives; and (3) to allow greater flexibility in the administration of estates.

The compromise of Earl's claim with court approval is consistent with the letter and spirit of the 1980 revision. There are no statutory inhibitions, appropriate procedures have been followed, and the procedural rights of the objecting devisees have been fully respected. The result, under the particular facts of this case, might have been the same had the case come up before the statutory revision. The revision, however, furnishes the occasion to reexamine the maxims and precepts which are adduced to defeat the authority to compromise. We should not take a myopic view of the court's powers because of inappropriate and outmoded analysis.

The ancient proposition that real property descends to the heirs or devisees while personal property passes to the personal representative should not bar the attempted compromise of the claim now before us. The objecting devisees do not have a specific right to possession and enjoyment of the tract. It is not Naboth's vineyard (I Kings 21), which even the king could not take by fair means. The tract was devised to four persons, only two of whom objected to the compromise. Any one or more of these could have forced a partition and sale of the tract in accordance with Chapter 528, RSMo. There was no guarantee of specific enjoyment.

Further reason for not applying the venerable maxim is that the will granted Earl an option to purchase the tract at "market value," in the event that any of the four devisees wanted to sell. It cannot be objected that two of the four devisees do not desire to sell, for any one of the four has the power to force a sale. The two devisees who did not object presumably want the compromise to be given effect. The property then could have been sold to Earl at market value and a consideration paid to him in compromise of his monetary claims, with the result that he would pay the same amount and obtain the same property as contemplated by the approved compromise. It is appropriate to allow the fiduciary and the court to achieve directly what could be achieved by artistic indirection.

The presence of the unrestricted power of sale is another circumstance demonstrating that the ancient maxim is not appropriately relied on. A power of sale in a personal representative created by will may be personal to the named fiduciary or may be exercised by the incumbent personal representative, depending on the intent of the testator. Flynn v. Danforth, 547 S.W.2d 132 (Mo.App.1976); Houser, J., and cases there cited. A power is considered to be personal if it is independent of and designed to survive the administration. A power which is ancillary to the administration may be exercised by a successor fiduciary. A reading of the Basler will demonstrates that the power of sale is not designed to be personal. The will named coexecutors and an alternate executor. The clause conferring the power did not mention any executor by name, and the clear intendment was to permit its exercise by whatever executor or executors happen to be serving. It of course was entirely appropriate to replace an executor whose son was prosecuting a claim against the estate with a disinterested administrator ad litem, but it would be unfortunate if the serving fiduciary were to be shorn of powers designed by the testatrix to facilitate the administration of the estate. No authority compels such a holding. The administrator ad litem should be able to make use of the power of sale in effecting the compromise.

The Court, furthermore, may authorize a successor personal representative to exercise a power of sale even though the power is personal to a designated executor. Section 473.457, RSMo 1978, adopted in its present form in 1955, reads in pertinent part as follows:

1. The sale and conveyance of property under a will shall be made by the acting executor or administrator with the will annexed, if no other person is appointed by the will for that purpose, or if such person fails or refuses to act.

2. Whenever power to sell or otherwise deal with property under a will, by the terms thereof, is personal to the executor therein designated, the court may direct the exercise thereof by a successor executor or by administrator or by some other person. The court has full power to supervise the exercise of such powers and to make such orders as are necessary to effectuate the will of testator.

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