Estate of Curtis, Matter of

Citation663 S.W.2d 420
Decision Date29 December 1983
Docket NumberNo. 12944,12944
PartiesIn the matter of the ESTATE OF Errington R. CURTIS, Deceased. Roger Andrew CARNAHAN, Personal Representative, Plaintiff-Respondent, v. Sarah CURTIS, Roy Duncan, and Elaine Wiggs, Defendants-Respondents, Marcella Duncan, Defendant-Appellant.
CourtCourt of Appeal of Missouri (US)

Roger A. Carnahan, Rolla, for plaintiff-respondent.

John D. Beger, Salem, for defendant-respondent Howard Jones, Guardian of Sarah Curtis, Incompetent.

Jay White, Rolla, Morton K. Lange, Cuba, for defendant-appellant.

PER CURIAM.

The Personal Representative of the Estate of Errington R. Curtis, deceased, instituted this proceeding under § 473.340 to determine title to 28 items of personal property. Errington R. Curtis died intestate. The defendants were the decedent's widow, Sarah Curtis, and two daughters by a prior marriage, Marcella Duncan and Elaine Wiggs. Roy Duncan, husband of Marcella was also joined. A hearing was held upon the Personal Representative's petition for the announced purpose of determining title to six enumerated certificates of deposit and a designated savings account. For the purpose of this appeal it may be conceded those certificates of deposit and the savings account were held in a statutory joint tenancy between the decedent and Marcella Duncan. The day of the hearing the guardian of the widow filed an instrument purporting to constitute an election to treat those items and others as a testamentary disposition per § 474.150. The Probate Division of the Circuit Court found two of those certificates of deposit had been issued before the decedent's marriage to Sarah Curtis and adjudged the same to be the property of Marcella Duncan. However, it found that four certificates of deposit and the savings account in the name of E.R. Curtis or Marcella Duncan were so established in fraud of the marital rights of Sarah Curtis. It was further determined the proceeds thereof "should be delivered over to the personal representative of the estate for payment of debts, expenses and distribution as provided by law." Marcella Duncan was ordered to pay the proceeds of those intangibles to the Personal Representative. Marcella Duncan has appealed.

By her brief Marcella Duncan asserts this was a final judgment for the purpose of appeal. By their joint brief as respondents, the Personal Representative and the widow, Sarah Curtis, concede this to be true. Nonetheless, it is the duty of this court, sua sponte, to determine if, in fact, an appeal lies from that judgment. Shell v. Shell, 605 S.W.2d 185 (Mo.App.1980). This determination must be made upon the basis of the statutes and rules applicable to procedures in and appeals from the Probate Division of the Circuit Court in general, and to a proceeding to discover assets under § 473.340 in particular. State ex rel. St. Hwy. Com'n v. Armacost Motors, Inc., 502 S.W.2d 330 (Mo.1973).

E.R. Curtis died May 19, 1981. The Probate Code resulting from the Revision of 1980 is applicable. § 472.005. Under the provisions of § 472.160, any interested person aggrieved may appeal from an order, judgment or decree of the Probate Division in thirteen specifically defined categories. The judgment in question does not fall within those categories. However, with certain exceptions not applicable to this case, such an appeal may also be taken "[i]n all other cases where there is a final order or judgment of the probate division of the circuit court under this code ...." § 472.160.1(14). Substantially similar language is found in § 512.020. The parties by implication concede that, in the absence of a statute or rule providing otherwise, for a judgment to be final within this language, it must determine the rights of all the parties concerning all the issues in the proceeding. State ex rel. Townsend v. Holtcamp, 330 Mo. 1101, 55 S.W.2d 428 (banc 1932); In re Estate of Ritter, 510 S.W.2d 188 (Mo.App.1974). They likewise concede the judgment in question does not meet that standard. However, they contend the judgment is final for purpose of appeal by reason of Rule 81.06.

The statutory Civil Code does not apply to practice and procedure in the Probate Division of the Circuit Court "except to the extent that such provisions are otherwise specifically made applicable." § 506.010.2. Generally, Rules 41 through 101, except Rules 56 through 62, are not applicable to proceedings governed by the Probate Code. Rule 41.01(a)(2) and (c). The Judge of the Probate Division did not order that any or all of Rule 41 through 101 should be applicable to this matter. Rule 41.01(e). However, it has been the experience in some courts that certain civil rules, including Rule 81.06, should be invoked in every adversary probate proceeding. Borron, Jurisdiction and Practice in the Probate Division Under the Court Reform Act, 36 Mo.B.J. 13, 20 (1980).

A proceeding under § 473.340 falls within the definition of an adversary probate proceeding. § 472.140.2. An adversary probate proceeding is to be conducted, as nearly as practicable, in accordance with the rules of civil procedure. § 472.141.1. More specifically, in any proceeding under § 473.340 "[s]ervice of summons, petition and answer thereto together with all subsequent proceedings shall be governed by the Missouri Rules of Civil Procedure." § 473.340.2. (Emphasis added). All appeals from the Probate Division shall be taken within the time prescribed by the rules of civil procedure relating to appeals. § 472.180. Such appeals shall be taken in accordance with the rules of civil procedure relating to appeals. § 472.210. These statutes and rules do not spell out precisely the extent to which the statutory code of civil procedure and the Rules shall be applied to each of the numerous probate proceedings and appeals therefrom. Those guidelines must be developed upon a case by case basis.

The Probate Code does not by statute more explicitly define a final judgment. Nor does it other than by reference prescribe the time within which an appeal must be taken after a judgment has become final. By necessity, and by statutory direction, such determinations are to be made under the Rules. Rule 81.06 refers to final judgments for the purpose of appeal within the meaning of § 512.020. Section 512.020 is a part of the Code of Civil Procedure as adopted in 1943. That code is not per se applicable to proceedings in the Probate Division of the Circuit Court, except to the extent such provisions are otherwise specifically made applicable. § 506.010.2. However, as noted, § 472.160.1(14) specifically applicable to the Probate Division authorizes an appeal from a final order or judgment in substantially the same language contained in § 512.020. Even though Rule 81.06 was drafted in reference to § 512.020, it is practicable to apply that rule to this adversary proceeding. By necessity and statutory direction, that seems to have been the intent of the legislature. The statutes cited above dealing with the right of appeal are sufficiently clear to make Rule 81.06 applicable notwithstanding the restrictions of § 506.010.2 and Mo. Const. Art. V, § 5.

The part of Rule 81.06 directly applicable reads as follows:

When a separate trial is had before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case the judgment entered shall not be deemed a final judgment for purposes of appeal within the meaning of § 512.020, RSMo, unless specifically so designated by the court in the judgment entered. However, when a separate trial is had before the court without a jury of an entirely separate and independent claim unrelated to any other claims stated or joined in the case, then the judgment shall be deemed a final judgment ... unless the court orders it entered as an interlocutory judgment to be held in abeyance.... Rule 81.06.

The second quoted sentence of the Rule has been construed in context with the remainder of the Rule and other Rules in several cases. Welch v. Continental Placement, Inc., 583 S.W.2d 251 (Mo.App.1979); State ex rel. Ashcroft v. Gibbar, 575 S.W.2d 924 (Mo.App.1978). The general applicability of the quoted sentence of Rule 81.06 has recently received the following expression: "[T]he claims and parties separated and the result adjudged must constitute an independent unit which finally disposes of the claims and the parties within the unit." Shell v. Shell, supra, at 191.

To determine if the judgment in question is final by reason of Rule 81.06, it is necessary to consider in more detail the status of the pleadings in the proceedings under § 473.340. The petition of the Personal Representative was in three counts. Count I purported to state a cause of action against Roy and Marcella Duncan. In that count he alleged there was "certain money and other personal property of decedent ... in the possession ... of defendants Roy Duncan and Marcella Duncan." He specifically alleged a 1971 Chevrolet was in their possession. Among other general requests for relief, he prayed the court to order Roy Duncan and Marcella Duncan to deliver all property of the decedent to him. Count II was directed against Sarah Curtis, the widow. In that count he asked the court to determine title to four certificates of deposit in the name of Sarah Curtis, trustee for E.R. Curtis. Named as defendants in Count III were Sarah Curtis, Marcella Duncan and Elaine Wiggs. In that count he prayed the court to determine title to eleven accounts or certificates of deposit in the names of E.R. Curtis or Sarah Curtis, five certificates of deposit in the names of E.R. Curtis or Elaine Wiggs and one account and six certificates of deposit in the names of E.R. Curtis and Marcella Duncan.

The Probate Division did not specifically designate the judgment of August 16, 1982 to be final for the purpose of appeal. That judgment makes no reference to the...

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  • Estate of Desterbecque, In re
    • United States
    • Missouri Court of Appeals
    • December 10, 1990
    ...has become final. By necessity, and by statutory direction, such determinations are to be made under the Rules." Matter of Estate of Curtis, 663 S.W.2d 420, 423 (Mo.App.1983). "Because finality of judgment and entitlement to appeal are interrelated, the rules of civil procedure, of necessit......
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    ...The correct procedure is an equitable suit in her own right to recover property to the extent of her interest therein. In re Estate of Curtis, 663 S.W.2d 420 (Mo.App.1983). See also Bernskoetter, 693 S.W.2d at 251; In re Estate of Mitchell, 610 S.W.2d 681, 684 ...
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    ...Bernskoetter in his capacity as personal representative of the estate, rather than as a surviving spouse. In Matter of Estate of Curtis, 663 S.W.2d 420, 425 (Mo.App.1983), the court said it was recognized that a personal representative lacks the authority to bring an action for fraud of mar......
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