Estate of Foster, In re
| Decision Date | 30 June 1994 |
| Docket Number | No. 63909,63909 |
| Parties | In re the ESTATE OF Rosemarie J. FOSTER, Deceased. |
| Court | Missouri Court of Appeals |
Robert F. Garzza, Briegel, Baylard, P.C., Union, for appellant.
Edward C. Cody, Michael H. Izsak, Klutho, Cody, Kilo, Flynn, Billingsley & Trame, P.C., St. Louis, for respondent.
This is an appeal from an order of the probate court determining title to property in the estate of Rosemarie Foster (decedent) and an order removing appellant, A. Bryant Foster (appellant), as personal representative of his wife's estate. Respondent, Ernst Oltmann, father of the deceased and co-personal representative with appellant, filed an objection to the inventory submitted by appellant. Respondent claimed appellant failed to list decedent's one-third interest in ERB Investment Associates (ERB) and wrongfully commingled and claimed the asset for himself. Respondent also requested appellant be removed as the personal representative of the estate. The trial court determined the pleading was a petition to determine title to assets under § 473.340 RSMo 1986 and a petition for removal. The court then determined appellant made a gift of the partnership interest to decedent and found she owned the interest at her death. The court ordered appellant to pay decedent's interest to the estate and removed him as personal representative.
Appellant raises three points on appeal. First, he argues the court erred in ruling the pleading was a petition to determine title to assets because it did not comply with the pleading requirements of § 473.340 RSMo 1986. Next, he argues the evidence was insufficient to support the trial court's determination decedent owned a one-third interest in the ERB partnership because respondent failed to make a prima facie case that the decedent owned the property at her death and there was no evidence respondent intended to make a gift to decedent when he paid for her share of the partnership. Third, appellant claims the trial court erred in removing him as personal representative because there was insufficient evidence to warrant removal under § 473.140 RSMo 1986. We disagree with respondent on each point. The trial court's judgment is affirmed.
In 1980, appellant and decedent, husband and wife, along with respondent, decedent's father, formed ERB, a general partnership. Each partner contributed $25,000 at the onset of the venture. Decedent's and appellant's shares were paid from a joint tenants account with funds earned by appellant as a bonus. The decedent died on September 30, 1989, leaving a will appointing appellant personal representative of her estate. The residuary clause of the will provided for the unbequeathed assets of her estate to pour over into a trust which named respondent as trustee. The income was to be paid to appellant for life with the remainder to the couple's two children. Respondent petitioned the court to be named co-personal representative of his daughter's estate in order to fulfill his duties as trustee. The court granted his request.
Appellant filed an inventory and statement of account in January 1991 which respondent refused to sign. He did not file his own, instead, he filed this suit alleging appellant failed to inventory the decedent's one-third interest in ERB. Respondent also alleged appellant wrongfully commingled funds from the asset with his own personal funds. Respondent asked the court to order the inventory supplemented to account for the missing asset and further requested appellant be removed as personal representative.
The court found one-third of the ERB partnership was the property of decedent at the time of her death, ordered appellant to pay over decedent's interest to her estate and removed appellant as personal representative. This appeal followed.
In appellant's first point he argues respondent's petition did not comply with § 473.340 RSMo 1986 which sets out the pleading requirements for a petition to determine title to assets and, therefore, it did not give him notice. We disagree. First, we note the strict rules of pleadings applied to circuit court petitions do not apply in probate proceedings. Barrett v. Flynn, 728 S.W.2d 288, 291 (Mo.App.W.D.1987). A probate petition is sufficient if it gives reasonable notice of the nature and extent of the claim. Id. In this case, the pleadings gave appellant sufficient notice of the nature and extent of the claim.
Section 473.340(1) RSMo 1986 states in relevant part "a petition shall describe the property, if known, shall allege the nature of the interest of petitioner and allege that title or possession of the property, or both, are being adversely withheld or claimed." In the case at bar, the petition described the property that was the subject of the petitioner's claim, a one-third interest in ERB. The petition designated respondent as the co-personal representative of the estate and, therefore, identified the nature of his interest in the property and alleged appellant adversely withheld or claimed the property by claiming it as his own and failing to list the asset in the inventory.
The caption on the petition read "Objections to inventory submitted by A. Bryant Foster" but we do not consider this fatal to the pleadings. There is nothing in the discovery of assets statute that requires a specific caption in order to state a cause of action under § 473.340 RSMo 1986. The issues in a discovery of assets proceeding are made up by the pleadings and the answers. Matter of Stickler, 551 S.W.2d 944, 951 (Mo.App.W.D.1977) (emphasis added). The pleadings, in their entirety, must give the opposing party notice of the nature and extent of the claim and respondent's petition met this requirement. Therefore, the trial court did not err in characterizing it as a petition to determine title to assets.
Appellant also argues in his first point the petition was deficient in giving him notice of a proceeding to determine title to assets and, therefore, he was not properly served with summons under the Missouri Rules of Civil Procedure as required in § 473.340 RSMo 1986. Because we have found the petition did comply with the pleading requirements of the statute, respondent's argument is rejected. He had notice. Appellant's point one is denied.
In point two, appellant argues the trial court erred in finding title to a one-third interest was decedent's property at death because respondent failed to make a prima facie case that decedent owned the property. Appellant further alleges error, in point two because there was no evidence to support the trial court's finding that he made a gift of the partnership interest to decedent. We disagree with both arguments.
The issue is whether appel...
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