Estate of Sawade v. State, 71869

Citation787 S.W.2d 286
Decision Date17 April 1990
Docket NumberNo. 71869,71869
PartiesIn re ESTATE OF Myrtle M. SAWADE, Louise C. (Dewey) Hornstein, Personal Representative, Appellant, v. STATE of Missouri, Respondent.
CourtUnited States State Supreme Court of Missouri

John L. Sullivan, St. Louis, for appellant.

William L. Webster, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for respondent.


Louise C. (Dewey) Hornstein, personal representative of Myrtle M. Sawade, deceased, filed a notice of appeal following the trial court's denial of a petition for refund of an inheritance tax payment. Jurisdiction of this Court is invoked because the claim involves construction of the revenue laws. Mo. Const. Art. V, § 3. The appeal is premature and is dismissed.

Myrtle Sawade died testate in 1978. Her will was admitted to probate on November 20, 1978. Proceedings regarding assessment of inheritance tax were delayed at the request of the personal representative because of litigation in federal courts relating to federal estate tax liability.

In 1987, the probate division of the circuit court was advised that the federal estate tax litigation was resolved. The personal representative was ordered to file a petition to assess inheritance tax. Instead of complying with the court's order, the personal representative filed a receipt showing partial payment of the inheritance tax in the sum of $41,348.00.

On February 8, 1989, the personal representative filed a petition in the trial court seeking a refund of the inheritance tax payment. The petition was denied. The personal representative filed a notice of appeal.

The inheritance tax statutes in effect at the time of Ms. Sawade's death were repealed in 1981 and new sections were enacted. However, the repeal did not affect inheritance tax obligations of those dying before 1981 "in any respect, including, but not limited to, the determination of tax, interest, penalties, procedures, and periods of limitations." § 145.009, RSMo 1986. Accordingly, all statutory references below are to RSMo 1978, unless stated otherwise.

The petition for refund asserts that any claim for inheritance tax is barred by § 145.305. That section provided that no action by the state shall be commenced under chapter 145 unless filed within five years of the filing of the inheritance tax appraiser's report in the court, or within ten years of the death of the decedent, whichever occurs first. In her brief on appeal, the personal representative candidly admits that the assessment of the tax provided for in § 145.150 has no limitation period, and that the only limitation is on actions to collect the tax. She argues that because decedent died more than ten years ago, no collection action could be commenced pursuant to § 145.280, and therefore the assessment is "effectively barred." She claims to be entitled to an order of the probate division of the circuit court requiring a refund of the $41,348.00 payment. See § 145.250. The answer to the question presented must await another day.

Regardless of whether the parties raise the issue, an appellate court must determine whether the judgment or order appealed from is final. Kansas City Power & Light Co. v. Kansas City, 426 S.W.2d 105, 107 (Mo.1968); In re Estate of Curtis, 663 S.W.2d 420, 422 (Mo.App.1983). The right to appeal from a probate judgment is statutory, but the statutes authorizing such appeals are to be liberally construed to extend the right of appeal. State ex rel. Baldwin v. Dandurand, 785 S.W.2d 547 (Mo. banc 1990). Without statutory authority, no right to appeal exists. In re Estate of Seabaugh, 654 S.W.2d 948, 957 (Mo.App.1983).

Under the applicable 1978 statutes, the court exercising probate jurisdiction determines the amount of the inheritance tax due, with or without the aid of an inheritance tax appraiser. § 145.150. If the...

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14 cases
  • In re Estate of Forhan
    • United States
    • Missouri Court of Appeals
    • 8 Noviembre 2004
    ... ... See Stelts v. Stelts, 126 S.W.3d 499, 502 (Mo.App.2004); Barlow v. State, 114 S.W.3d 328, 331 (Mo.App.2003). Insofar as it is pertinent here, § 512.020 permits an aggrieved party to appeal "from any final judgment in the ... See In re Estate of Sawade, 787 S.W.2d 286, 288 (Mo. banc 1990). This statute authorizes an appeal from a number of specific orders issued in a probate proceeding.3 Thus, it ... ...
  • In re Smith
    • United States
    • Missouri Court of Appeals
    • 1 Mayo 2018
  • Leone v. Leone
    • United States
    • Missouri Court of Appeals
    • 5 Marzo 1996
    ...the finality of the trial court's order, this court must determine whether the order is final for purposes of appeal. Estate of Sawade v. State, 787 S.W.2d 286, 288 (Mo. banc 1990). The trial court's certification of its order as final is not binding on this court. State ex. rel. Solid Stat......
  • Henningsen v. Independent Petrochemical Corp., 63695
    • United States
    • Missouri Court of Appeals
    • 11 Enero 1994
    ...Plaintiffs appeal an order denying relief after a trial. In accord with our affirmative duty to determine jurisdiction, Estate of Sawade v. State, 787 S.W.2d 286, 288 (Mo. banc 1990), we find the equity court did not acquire subject matter jurisdiction. We conclude that the order dismissing......
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