Estate of Livingston

• Decision Date: 20 January 1982
• Docket Number: No. 11973,11973
• Citation: 627 S.W.2d 673
• Parties: In the ESTATE OF Daisy Belle LIVINGSTON, Incompetent, Appeal of Ethel L. HAYES.
• Court: Missouri Court of Appeals

Page 673

627 S.W.2d 673

In the ESTATE OF Daisy Belle LIVINGSTON, Incompetent,

Appeal of Ethel L. HAYES.

No. 11973.

Missouri Court of Appeals, Southern District, Division Two.

Jan. 20, 1982.

Ivella McWhorter Elsey, Springfield, for appellant.

Leland C. Bussell, Dale L. Davis, Bussell, Hough & O'Neal, Springfield, for respondent.

MAUS, Chief Judge.

This is an appeal from a judgment in a guardianship estate of an incompetent declaring that by reason of § 473.360 (the non-claim statute applicable to the estates of decedents) the claim of appellant cannot be satisfied from any assets being administered upon as a part of the ward's decedent estate. The background of this appeal is unique. The proceedings commenced under Mo.Const. Art. 5 before the effective date of the 1976 amendments and concluded after that effective date.

On July 20, 1977, the ward was adjudged to be incompetent and Shelby J. Raney was appointed guardian of her person and estate. On October 18, 1977, the claimant duly filed in the probate court her "claim against estate" of the ward for personal services rendered prior to the adjudication. The claim was in the amount of $6,500. Following a hearing on August 28, 1978, the probate court allowed the claim in the amount of $5,000. On September 14 the probate court entered an order granting the guardian of the estate an appeal to the circuit court. That order did not specify the extent of any supersedeas of the order allowing the claim. § 472.230, RSMo 1969 (Repealed by Laws 1978, page 696).

The ward died on March 13, 1979. On March 22, 1979, Shelby J. Raney and Ruth Raney were appointed executors of the estate of the deceased ward. Notice of their letters testamentary was duly published, the first publication thereof being had on March 29, 1979. On April 2, 1979, the executors filed a suggestion of the death in the circuit court in the appeal proceedings. On July 9, 1979, upon the motion of the claimant, the executors "were substituted as parties defendant" for the guardian. By leave of the circuit court, the executors then filed their answer to the claim and their counterclaim. By their counterclaim, the executors sought a declaratory judgment in general terms interpreting § 473.360. On December 5, 1979, the parties submitted the counterclaim for a declaratory judgment to the court upon written briefs. On September 17, 1980, the circuit court entered a judgment in favor of the executors which declared, among other things, that by reason of the failure of the claimant to comply with § 473.360, by filing her claim or a notice of substitution of parties in the probate division of the circuit court within six months after the first publication of notice of letters testamentary, the assets of the decedent's estate could not be used to satisfy any judgment rendered upon the claim; that there were no other assets; the executors were ordered not to defend the claim or to pay any judgment thereon from the assets of the decedent's estate; and that none of the devisees, personal representatives or legatees of the ward were obligated to pay the claim. The claimant appeals.

The appellant argues that upon the effective date of the 1976 Amendment to Mo.Const. Art. 5 and House Bill 1634 implementing the Amendment, the appeal should have been transferred to this court. Section 472.160, as amended by House Bill 1634, provides that appeals from the probate division of the circuit court shall be to the appropriate appellate court. However, that amendment is prospective. The appeal in this case was taken before January 2, 1979, and the circuit court had jurisdiction of the appeal as provided in Mo.Const. Art. 5 and the implementing statutes in force at the time the appeal was taken. Nothing in the 1976 amendment to Art. 5 or in House Bill 1634 deprives the circuit court of that jurisdiction.

The respondent's argument that this appeal must be dismissed is well taken. With certain exceptions an appeal may be taken only "from any final judgment in the case". § 512.020. A judgment is not final if it does not dispose of all of the issues before the court. Hill v. Boles, 583 S.W.2d 141 (Mo. banc 1979). This proceeding originated in a claim in the probate court. It was in the circuit court as an appeal from a judgment allowing that claim. The judgment of the circuit court does not allow or disallow that claim and is not a final judgment. Hill v. Boles, supra; Civil Rule 81.06.

Nevertheless, in view of the contentions made by the parties, and lest this opinion be construed as approving the substitution ordered, this court would be remiss if it did not consider the questions presented. The proceeding before the circuit court was not an action filed in that court. It was an appeal from an order of the probate court taken before January 2, 1979. Under the law in force at the time the appeal was taken, the circuit court had jurisdiction to hear the matter de novo. State ex rel. Russell v. Mueller, 332 Mo. 758, 60 S.W.2d 48 (1933). However, the jurisdiction of the circuit court was derivative. State ex rel. Townsend v. Mueller, 330 Mo. 641, 51 S.W.2d 8 (banc 1932). The only issue before the circuit court was the allowance of the claim in the guardianship estate. Cooper v. Jensen, 448 S.W.2d 308 (Mo.App.1969). The counterclaim was improperly filed.

A more difficult question is the propriety of the substitution of the executors in the place of the guardian. This point involves a consideration of the nature of the proceeding before the court and the relationship of the guardianship estate to the decedent estate. There is a distinction between an action in the circuit court to recover upon a cause of action against a ward and the presentation of that cause of action by a claim against the estate of the ward. ¹ Vanderbeck v. Watkins, 421 S.W.2d 274 (Mo. banc 1967). In the absence of statute, such a cause of action could be enforced only by an action against the ward in the circuit court. Rhodes v. Frazier's Estate, 204 S.W. 547 (Mo.App.1918). Such an action is based upon jurisdiction of the person of the ward and will result in an in personam judgment against the ward. That judgment shall be enforced in the manner provided for the enforcement of judgments against the estates of decedents. § 475.260.

By statute, Missouri first provided for the presentation in the probate court of "demands" against the estate of an incompetent, which was construed to include only liabilities accruing before the guardianship. § 458.320, RSMo 1949 (Repealed); Evans v. York, 195 S.W.2d 902 (Mo.App.1946). By amendment, this authority has been expanded to include liabilities of the ward accruing before and after guardianship, and liabilities incurred by the guardian for the benefit of the ward or his estate. The applicable statute excludes claims arising in tort. § 475.205. The allowance of a claim against the estate is a judgment to be satisfied from the assets of the estate in the manner prescribed by statute. § 475.205. "And in this state it is to be noted, also, that no judgment is rendered against an administrator when a claim is allowed. The judgment of allowance and classification is rendered against the estate. It is, in all of its essential incidents and consequences, a judgment in rem ...." Moody v. Peyton, 135 Mo. 482, 491, 36 S.W. 621, 623 (1896). Also see First Nat. Bank of Brush, Colo. v. Blessing, 231 Mo.App. 288, 98 S.W.2d 149 (1936). It is not an in personam judgment which can be made the basis of a subsequent action against the ward. Fogle v. Kaster, 212 S.W. 565 (Mo.App.1919); Johnson v. Castor, 199 Mo.App. 501, 204 S.W. 196 (1918).

Concerning the second consideration, it is often assumed a ward's guardianship estate is the same as his decedent estate. In most cases this will be true, but it is not necessarily so. "It does not follow, however, that where there is an identity of ward and deceased there is also an identity of the respective estate of the ward and deceased." Kelly v. Smith, 7 Ohio App.2d 142, 219 N.E.2d 231, 235 (1964). A ward may be possessed of a cause of action that cannot be enforced after his death. Kelly v. Smith, supra. Compare Clark v. Mississippi Valley Trust Co., 357 Mo. 785, 211 S.W.2d 10 (1948). There may be assets a part of his decedent estate not a part of his guardianship estate. A prime example is a life insurance policy payable to the estate. Further, the availability of assets for the payment of claims is not the same. The statutes of Missouri provide no specifically applicable exemption for the support of the ward. "An insane person, who is the head of a family, is entitled to precisely the same exemptions, under our statutes, as a sane person similarly situated, and no more; ...." Frost v. Redford, 127 Mo. 492, 498, 30 S.W. 179, 180 (1895). With one exception there is no statute establishing the priority of payment of claims against an incompetent's estate. Section 475.215 provides if there are insufficient assets to pay in full all allowed claims based on debts incurred before the appointment of a guardian, the assets shall be prorated. Section 475.125 provides that appropriations for the support of the ward and his dependents, the expenses of administration and allowed claims shall be paid from the personal property or income of the estate. Section 475.200 prescribes the purposes for which real property may be sold, including the payment of the ward's debts. Of course, the statutes applicable to a decedent estate in effect provide exemptions for a surviving spouse and/or minor children of a decedent, §§ 474.250 to 474.300, and provide an order of priority for the payment of claims. §§ 473.397 and 473.430. The relationship between the two estates is ill defined in Missouri, but in applying the present statutes, care must be taken to recognize the differences in the two estates. ²

In an action in the circuit court against a ward, which would result in an in personam judgment against the...