L.G. v. F.G.H.

• Court: Missouri Court of Appeals
• Writing for the Court: KAROHL; CRANDALL; CRANDALL
• Citation: L.G. v. F.G.H., 729 S.W.2d 634 (Mo. App. 1987)
• Decision Date: 21 April 1987
• Docket Number: No. 51875,51875
• Parties: L.G., Appellant, v. F.G.H., R.A.G., and Estate of H.A.G., Respondent.

Page 634

729 S.W.2d 634

L.G., Appellant, v. F.G.H., R.A.G., and Estate of H.A.G., Respondent.

No. 51875.

Missouri Court of Appeals,

Eastern District,

Division Three.

April 21, 1987.

Motion for Rehearing and/or Transfer Denied May 20, 1987.

Application to Transfer Denied June 16, 1987.

Philip Heagney, St. Louis, for L.G.

Scott O. Marshall, Clayton, for F.G.H.

Ronald E. Fox, St. Louis, for R.A.G.

Allen A. Yonder, St. Louis, for Estate of H.A.G.

KAROHL, Judge.

Plaintiff-Appellant, L.G. appeals from dismissal on motion of her first amended petition. Count I alleges a contract between L.G. and H.A.G., her father, wherein he agreed to make certain provisions in his will for her benefit, but failed to do so. Count II, in the alternative to Count I, alleges that plaintiff's claim is a probate claim within the meaning of §§ 473.360-473.443 RSMo Cum.Supp. 1984 based on a contract between plaintiff and her father the provisions of which should be ordered specifically performed.

This appeal questions a dismissal on the pleadings. The trial court did not give reasons for the order of dismissal. The separate motions of defendant F.H., plaintiff's sister, R.A.G., plaintiff's brother, and the estate of H.A.G., rely on legal defenses to plaintiff's separate causes of action. They are: 1) both counts constitute a probate claim which was not filed within 6 months of the date of first publication of notice of letters testamentary and are therefore barred by the statute of limitations, § 473.360 RSMo Cum.Supp. 1984; 2) both claims are barred by the statute of frauds because they are based upon an oral promise to make provisions in a will; and 3) because the alleged consideration furnished by plaintiff to her father was a consent to an abortion of a child. The consideration is not, or as a matter of public policy should not be, recognized as lawful consideration for a contract.

For purposes of this appeal we are required to accept the well pleaded facts in the petition as true and to consider those facts under their broadest intendment. Gaines v. Monsanto Co., 655 S.W.2d 568, 570 (Mo.App.1983).

From the pleadings, petition, answers and motions, we discern the facts. Prior to January 18, 1980, H.A.G., plaintiff's father who was a widower had prepared a will in which he treated his three children, L.G., F.H. and R.A.G. equally. On that day, plaintiff, a single woman, notified her father, brother and sister that she was pregnant and that she had no intention to marry as a result of her pregnancy. Shortly thereafter, H.A.G., revoked his existing will and executed a will dated January 18, 1980, in which he eliminated L.G., as a co-equal beneficiary of a trust from the residue of the estate. In the new will H.A.G., provided for plaintiff with a specific bequest of $25,000. The residue of the estate was to be paid to a trust and the trustees were to provide plaintiff's brother and sister with the income. On the death of the survivor distribution of corpus goes to grandchildren. The trustees are authorized to encroach upon the principal of the trust for the income beneficiaries.

Some time after execution of the new will, H.A.G. notified his daughter that he had changed the will, but would return to his original plan "if she would terminate her pregnancy without giving birth." Within a period of two weeks and prior to January 31, 1980, plaintiff terminated her pregnancy and notified her father. H.A.G. advised plaintiff he would honor his part of the agreement. However, H.A.G. died on November 30, 1984 and his will, dated January 18, 1980, was offered and accepted for probate. The validity of the will is uncontested. Plaintiff's position relies on the proposition that in addition to the terms of the will and to the extent required by agreement, the provisions of the will should be read to include the provision of the oral agreement.

On December 29, 1984, the notice of appointment of personal representatives was first published as required by § 473.033 RSMo 1978. Plaintiff's original petition was filed in circuit court on September 23, 1985.

Plaintiff has preserved five errors of the trial court which she claims justify a remand for trial on the merits. They are: 1) Count I of plaintiff's petition based upon an oral contract to make a will is not a probate claim and is therefore not barred by § 473.360 and 473.367 RSMo Cum.Supp. 1974; 2) if Count I is a probate claim then the provisions of § 473.360.2 do not constitute a limitation bar because the "claim" is not payable from any assets of the probate estate; 3) even if the alternative Count II is a probate claim then defendants are estopped to raise the six month period of limitations as a defense because after the death of their father, but before the tolling of the statute plaintiff and her brother and sister agreed that the will would be probated and the resulting trust administered so that they would be co-equal beneficiaries; 4) the legal defense of statute of frauds does not apply because plaintiff as a party to the contract had fully performed all obligations agreed to; and, 5) the oral contract was not, as a matter of law, unenforceable as against public policy or violative of § 188.039 RSMo 1978 [no physician shall perform an abortion unless, prior to such abortion, the physician certifies in writing that the woman gave her informed consent, freely and without coercion].

We look to the first two allegations of error. Both assertions of error depend upon whether or not Count I of plaintiff's petition is a probate claim as defined in the probate code. If it is not a probate claim then the special statute of limitations for probate claims does not apply, the premise of Count II fails and it is not necessary for us to consider the alternative argument of estoppel.

Section 473.360.1 RSMo Cum.Supp. 1984 mandates that claims, with exceptions not relevant here, ".. founded on contract or otherwise, which are not filed in the probate division, or are paid by the personal representative, within six months after the first notice of letters testamentary or of administration, are forever barred against the estate, the personal representative, the heirs, devisee and legatees of the decedent." Subsection 2 of that statute provides that unless timely filed "no recovery may be had in any action on any judgment therein against the personal representative out of the assets being administered upon in the probate division or from any distributee or any other person receiving the assets." (our emphasis)

Section 473.397 RSMo Cum.Supp. 1984 provides nine separate classifications of claims, the only one of which that could be relevant to our present purpose is "(9) all other claims not barred by § 473.360." Section 473.403.1 authorizes the court to allow any claim in whole or in part. Subsection 2 of this statute provides "[e]xcept in case of the personal representative's own claim, any claim may be paid by the personal representative, without allowance thereof by the court, and credit may be had therefore in his settlement, provided the same is either paid or filed within the time prescribed by § 473.360 ..." Section 473.430 RSMo Cum.Supp. 1984 provides "[a]ll claims and statutory allowances against an estate shall be paid by the personal representative, as far as he has assets, in the order specified in § 473.397; ..." (our emphasis) Section 473.433 RSMo Cum.Supp. 1984 protects a personal representative from any obligation to make any payment on claims prior to the expiration of six months and authorizes payment only if a claim has been timely filed, except costs and expenses of administration, unless a claim has been served or acknowledged by the personal representative to be a just claim. Section 473.543 RSMo Cum.Supp. 1984 requires a personal representative to file a settlement and show the amount and date of each expenditure or distribution, and to whom and for what paid. Section 473.570 RSMo Cum.Supp. 1984 provides that after every settlement and under certain circumstances the court shall ascertain the amount of claims allowable against the estate, and may order the payment of the claims so allowable. This section also makes provision for those situations where there are not sufficient assets to pay the whole of the debts and expenses of administration, in which case, the court may order the personal representative to pay the claims allowable against the estate according to an apportionment formula. Section 473.573 RSMo 1978 grants to a creditor authority to execute on any allowed claim not paid.

Section 473.583 RSMo 1978 provides that the personal representative shall petition the court to allow and approve his final settlement "if the estate is in a proper condition to be closed" and shall specify in the petition the persons to whom distribution is to be made and the proportions or parts of the estate to which each is entitled. The expression "in a proper condition to be closed" is used in §§ 473.583, 473.587 and 473.617. We find no statutory definition of this term. It apparently means when all of the assets have been administered and all claims paid because a net balance or description of assets remaining in the estate must be described in the final settlement and the petition for distribution. This is so because the court is required by the provisions of § 473.617.2 to designate the persons to whom distribution is to be made, and the proportions or parts of the estate, or the amounts, to which each is entitled under the will and the provisions of this law. The court could not comply with this requirement unless all assets had been accounted for and all claims paid. Finally, "claims" is defined in § 472.010(3) RSMo 1978 to include "liabilities of the decedent which survive whether arising in contract, tort or otherwise, funeral expenses, the expense of a tombstone, and costs and expenses of administration."

We conclude that plaintiff has not asserted a probate claim...