Kopp v. Thomson

• Decision Date: 14 March 1955
• Docket Number: No. 44259,No. 1,44259,1
• Citation: 277 S.W.2d 579
• Parties: George C. KOPP, Administrator of the Estate of Thomas P. Thomson, Deceased, Appellant, v. Margaret K. THOMSON and Nona E. Thomson, Respondents
• Court: Missouri Supreme Court

Page 579

277 S.W.2d 579

George C. KOPP, Administrator of the Estate of Thomas P.

Thomson, Deceased, Appellant, v. Margaret K. THOMSON and Nona E. Thomson, Respondents.

No. 44259.

Supreme Court of Missouri, Division No. 1.

March 14, 1955.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 11, 1955.

R. B. Caldwell, Stanley Garrity, Robert S. Eastin, Scott R. Timmons, Caldwell, Downing, Garrity & Eastin, Kansas City, for appellant.

David M. Proctor, Jr., Paul S. Kelly, Kansas City, for respondents.

COIL, Commissioner.

The second appeal in this case is from the judgment of the circuit court affirming the probate court's action denying appellant-administrator's application for a refund made pursuant to the provisions of Section 465.400 RSMo 1949, V.A.M.S. The former case is Kopp v. Thomson, 362 Mo. 1043, 246 S.W.2d 791, 29 A.L.R.2d 1239.

George C. Kopp, Administrator of the Estate of Thomas P. Thomson, deceased, filed an application on March 9, 1950, to obtain the probate court's order directing Thomson's heirs to refund to the estate the sum of $50,000 received by them on or about November 22, 1932 ($12,500 to each of the four heirs) as partial distributions. The stated reason was that there were not sufficient assets remaining in the estate to pay the claim of the assignee of creditor Pryor. The averments of the application were set forth in detail at page 792 of our former opinion. We held on the first appeal that the circuit court erred in affirming the judgment of the probate court dismissing the administrator's application on the ground that it showed on its face the administrator's laches; that, while the application showed that 18 years had elapsed between the partial distribution (November 1932) and the filing of the application (March 1950), and that 12 years had elapsed between the time when the amount and validity of the Pryor claim were finally established, nevertheless, because Section 465.400, supra, permitted the filing of a refund application at any time before final settlement; because laches was not established by the lapse of time standing alone but depended also upon the inequity, if any, resulting from the lapse of time due to some change in the condition of the parties or property, or to some prejudice to the parties against whom the claim was to be enforced; and because any such determination must necessarily be based upon facts shown in evidence, laches did not appear, as a matter of law, on the face of the application.

We also held that, while ordinarily the equitable doctrine of laches may be invoked only in a court of equity and in a proceeding wherein a party seeks affirmative equitable relief (and thus ordinarily would not be available as a defense to a statutory application for a refund in a probate court), nevertheless, at a hearing on an administrator's application for refund under the provisions of Section 465.400, the probate court and circuit court on appeal could properly consider the equitable defense of laches asserted against an administrator.

Upon remand, a hearing was had and evidence was adduced in the probate court which resulted in a judgment denying the application for refund. On appeal to the circuit court the matter was heard de novo and evidence, consisting of a stipulation of facts and the testimony of two witnesses, was again adduced. It is this evidence, of course, which has been included in the transcript on this appeal, and it is this evidence which we review in the instant case. Our statement of the evidence (including the testimony of the two witnesses and the stipulation of facts) includes those matters which in our view are decisive of this case.

Thomas P. Thomson, a bachelor, died intestate, April 6, 1932, leaving as his sole heirs two brothers and two sisters, viz., John, George, Margaret, and Nona Thomson. None of the brothers and sisters had ever married except George, whose childless wife predeceased him. On April 11, 1932, the brothers and sisters renounced their rights to administer and requested that Kopp be appointed. Margaret Thomson, one of the two witnesses at the instant hearing, testified that she was responsible for this request because of her absolute confidence in Kopp. On April 12, 1932, Kopp was appointed, qualified, and has acted as administrator continuously since.

The inventory listed personal property valued at $204,899.32. Various tracts of unvalued land in Kansas City, Missouri, were listed.

John J. Pryor filed suit in the circuit court on August 20, 1932, against Kopp as administrator, in which he sought a decree declaring that plaintiff and Thomson were partners during Thomson's lifetime, and that plaintiff recover from the estate profits due him from said partnership. No specific amount was prayed in the petition. The circuit court adjudged the existence of the partnership, ordered an accounting, and, after exceptions, affirmed the referee's report and, on September 22, 1934, entered judgment against the estate in the sum of $123,786.27 with six per cent annual interest from date and costs, and ordered that said judgment be classified as a claim in the probate court. Kopp appealed to this court, and, on May 4, 1938, the judgment was affirmed. Pryor v. Kopp, 342 Mo. 887, 119 S.W.2d 228. This court's mandate was filed in the circuit court on August 31, 1938. On September 29, 1938, when the claim represented by the affirmed judgment was, at least purportedly, allowed in probate court, its total was, including principal and interest, $155,229.79.

Subsequent to the time Pryor filed suit, and after the expiration of six months from Kopp's appointment and qualification as administrator, and on November 22, 1932, Kopp petitioned the probate court for an order of partial distribution. He averred that all demands had been paid except Pryor's claim in an undetermined amount, then pending in the circuit court; and he requested distribution of $50,000-$12,500 each to the four Thomson brothers and sisters; that after such distribution there would be a sum remaining in the estate in cash and available securities exceeding $125,000, sufficient to more than satisfy the Pryor claim. After a hearing, an order of distribution as prayed was entered, reciting that, after hearing evidence, the court was satisfied that, after the partial distribution requested, there would be sufficient money remaining to satisfy any further demand against the estate. The sum of $12,500 was paid to each brother and sister and the administrator took and was allowed credit therefor in his next annual settlement. No refunding bond was required or given by any distributee and no appeal was taken by anyone from the order of distribution.

As noted, there were some unvalued tracts of land listed in the inventory. In March 1945, 35 of these vacant lots were sold by the administrator for a total of $900 and in May 1946, other lots were sold for $3,500. In both instances Margaret and Nona Thomson, then the only surviving heirs (George having died in 1937 and John in 1939) were personally served with the administrator's petition to sell and did not oppose the sale. The two remaining inventoried lots were acquired in 1948 by the Jackson County Land Trust for nonpayment of taxes.

From November 3, 1938, through December 21, 1942, various amounts totaling $101,500 were paid on the Pryor claim. As of the date of trial, there was $22,286.27 principal due on the Pryor claim and in excess of $100,000 interest and the only asset remaining in the estate was cash in the sum of $6,011.23.

Margaret Thomson was executrix and sole beneficiary of George Thomson's estate (George Thomson died in 1937), and the inventory filed by her listed as an asset a one-fourth undivided interest in Thomas P. Thomson's estate, subject to the lien of an unpaid judgment then on appeal in the Supreme Court of Missouri.

Margaret Thomson testified. She was 74 at trial time. She had been graduated from business college when about 20 and thereafter had worked for 13 years as a stenographer and private secretary. She terminated her last employment about the beginning of World War I because of the illness of her mother. She took charge of the home in which her mother, sister, and brothers Thomas and John were living. After her mother's death, the two brothers and two sisters continued to live in the same home. Apparently living expenses were shared but, after the mother's death and until his death, Thomas contributed most of the money for living expenses. They lived 'well' and 'comfortably'. After Thomas' death in 1932, George, who had been living in Chicago, returned to Kansas City and lived with his two sisters and his brother John. All contributed to the household expenses when able.

In the fall of 1932, Kopp, the administrator, called the Thomson sisters and brothers and arranged to meet them at a bank for the purpose of paying each $12,500. Margaret Thomson had not applied for or suggested the distribution and knew nothing of it until Kopp's call. Kopp gave each of them two checks, one for $10,000 and one for $2,500. Each endorsed his $2,500 check and returned it to Kopp to pay a Miss Gerdes 'in settlement of a claim against the estate.' Margaret deposited $7,500 in one bank and $2,500 in another. By reason of financial difficulties of the two banks shortly thereafter, she lost a total of $3,118.96. The $10,000 (other than that lost in the two banks) was spent by her for living expenses. She estimated that that particular $10,000 had been spent by about 1949 and before the time in 1950 when this proceeding was brought, except perhaps for a small amount. She was never notified by Kopp to return the money and her first knowledge that any demand was to be made on her for its return was when Kopp's application was filed in November 1950. Her standard of living did not change by reason of the receipt of the money from the Thomson estate but remained about the same. She was in fair...