North v. Hawkinson, 46277
| Decision Date | 13 April 1959 |
| Docket Number | No. 2,No. 46277,46277,2 |
| Citation | 324 S.W.2d 733 |
| Parties | Harry J. NORTH, Appellant, v. Esther C. HAWKINSON, Executrix of the Estate of Axel Hawkinson, Deceased, Respondent |
| Court | Missouri Supreme Court |
Blackford, Imes, Compton & Brown, by Haskell Imes, Kansas City, for appellant.
Lawrence R. Brown, Michael J. Bogutski, Kansas City, for respondent, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, of counsel.
Hiram H. Lesar, St. Louis, Charles C. Oliver, Jr., Kansas City, for amicus curiae, Missouri Association of Probate Judges.
C. Wallace Walter, Robert E. Lusk, Mann, Walter, Powell, Burkart & Weathers, Springfield, amicus curiae.
Rush H. Limbaugh, Cape Girardeau, Floyd R. Gibson, Kansas City, amicus curiae.
BOHLING, Commissioner.
Harry J. North filed an action against Esther C. Hawkinson, executrix of the estate of Axel Hawkinson, deceased, in the Circuit Court of Jackson County based on an alleged oral partnership agreement between plaintiff and Hawkinson. The case is pending on resubmission. Defendant's motion to dismiss plaintiff's petition was sustained on the stated grounds plaintiff failed to state a claim upon which relief could be granted; laches; and, if a claim be stated, it was barred by sections 473.360 and 473.367 of the new Probate Code (Laws 1955, pp. 385 et seq., Secs. 139 and 141). Statutory references are to RSMo 1949, 1955 Supplement, and V.A.M.S. unless otherwise stated. The sole controverted issue presented for determination on resubmission is whether plaintiff's action is barred by sections 473.360 and 473.367, the nine months limitations of the Probate Code of 1955; and defendant tacitly concedes plaintiff's petition, if not barred, states a claim and does not disclose laches necessarily defeating the action.
Mr. Hawkinson died March 3, 1956. His wife was appointed executrix of his estate March 14, 1956. The first published notice of letters testamentary was on March 19, 1956, and more than nine months thereafter plaintiff's petition was filed; to-wit: Narch 12, 1957. It was captioned 'Bill in Equity for Adjustment of Partnership Accounts.' The material allegations are to the following effect: In 1938 plaintiff and Hawkinson entered into an 'oral partnership agreement' to speculate and invest in real estate. Hawkinson agreed to finance this business. Plaintiff was to purchase and improve real estate for resale at a profit, was to sell real estate for and obtain agency agreements for leasing the property of owners on a commission basis, and the profits arising from the partnership were to be divided equally between the partners. Plaintiff, acting under the agreement, purchased, improved (investing some of his money in addition to money advanced by Hawkinson) and sold some of ther properties at a profit, taking back long-term installment purchase money mortgages, and obtained, on a commission basis, agency agreements to sell and to lease, under long-and short-term leases with options to renew, property for the owners. In December, 1940, the partners mutually agreed the partnership would be dissolved; but as a large number of transactions were pending in which the partnership was interested, it was agreed that Hawkinson, without compensation for his services, would continue to handle said transactions, keep an account of the receipts and disbursements connected therewith, and eventually close out the partnership business. Any net losses or profits were to be shared equally by plaintiff and Hawkinson. This arrangement continued from 1940 until Hawkinson's death in 1956 without any settlement of the partnership affairs or any partnership transaction involved, and commissions and profits on many partnership transactions are still outstanding. Plaintiff charges that Hawkinson 'was a trustee of the firm's accounts and the transactions constituted a mutual running and current account between them' of the partnership business, and that the existence of said relationship was always recognized by plaintiff and Hawkinson. Plaintiff alleges he has no adequate remedy at law; that only an accounting can determine the amount owed plaintiff, stating he 'verily believes' he is entitled to a judgment of $80,000 against the estate of Hawkinson.
Plaintiff states his action is purely an equitable matter over which the probate court has no jurisdiction, and the limitation periods of the Probate Code are not applicable. Orr v. St. Louis Union Trust Co., 1922, 291 Mo. 383, 236 S.W. 642; Hess v. Sandner, 1917, 198 Mo.App. 636, 198 S.W. 1125, 1126; and cases following the language of the Orr case, Clay v. Walker, Mo.App.1928, 6 S.W.2d 961, 967; Bond v. Unsell,Mo. App.1934, 72 S.W.2d 871, 874; In re Main's Estate, 1941, 236 Mo.App. 88, 152 S.W.2d 696, 700; Cunningham v. Kinnerk, 1934, 230 Mo.App. 749, 74 S.W.2d 1107, 1113. These cases arose under the prior Probate Code, the new Probate Code having been enacted by Laws 1955, p. 385, to be effective January 1, 1956 (Id., Sec. 1). The Hess, Bond and perhaps other cases state or indicate probate courts only had jurisdiction of claims involving a debtor-creditor relationship.
This is a case of first impression under the new Probate Code. Consult Model Probate Code, Michigan Legal Studies, 1946, Simes. Apparent purposes of the code are to provide a speedy method for administering a decedent's estate, to establish a time after which claims are forever barred against the estate, the executor or administrator, and the distributees, and to broaden the jurisdiction of probate courts to accomplish said purposes. A discussion of some features of the Code may be found at 23 Mo.L.R. 113.
We first state the constitutional and statutory provisions bearing on the issue, with some observations in connection therewith. They read (emphasis ours):
The constitution vests probate courts and circuit courts with 'judicial power.' Art. 5, Sec. 1, V.A.M.S.
,'there shall be a probate court in each county with jurisdiction of all matters pertaining to probate business, to granting letters testamentary and of administration, * * * settling the accounts of executors, administrators * * * and the sale or leasing of lands by executors, administrators, * * * and of such other matters as are provided in this constitution.' Id., Sec. 16. (Emphasis ours.)
'Probate courts shall be courts of record and uniform in their organization, jurisdiction and practice * * *'. Id., Sec. 17.
'The circuit court shall have * * * exclusive original jurisdiction in all civil cases not otherwise provided for, and concurrent * * * jurisdiction as provided by law.' Id., Sec. 14.
Section 473.360, subd. 1. 'Except as provided in sections 473.367 and 473.370, all claims against the estate of a deceased person, * * * whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, which are not filed in the probate court within nine months after the first published notice of letters testamentary or of administration, are forever barred against the estate, the executor or administrator, the heirs, devisees and legatees of the decedent. * * *
Consult prior sections 464.020, 464.060 and 464.070.
Plaintiff mentions the following excerpt from the 'Committee Comment' to section 473.360 as favorable to his position: '(3) it does not expressly bar equitable claims (such as that decedent held property in trust) but under present laws such claims are not barred because the probate court has no equitable powers [Citing the Orr case, supra.]' Such comments are not always accurate. This comment is taken from the 'Final Report of the Joint Probate Laws Revision Committee' to the General Assembly, is dated January 5, 1955, and has reference to the prior Probate Code. The comment with regard to par. 2 reads: 'Subsection 2 is new and is self-explanatory.'
Section 473.367. 'Any action commenced against an executor or administrator, after death of the decedent, is considered a claim duly filed against the estate from the time of serving the original process on the executor or administrator and the filing of a copy of the process and return of service thereof in the probate court.' Consult prior section 464.070.
Chapter 516, relating to the 'Statutes of Limitations,' 'Real Actions,' and 'Personal Actions and General Provisions' (sections 516.010-516.370), provides in section 516.300: 'The provisions of sections 516.010 to 516.370 shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute.'
'Generally, an action is such a judicial proceeding as, conducted to termination, results in a judgment.' State ex rel. Silverman v. Kirkwood, 361 Mo. 1194, 239 S.W.2d 332, 336['6]. 'And, 'suits' or 'actions include those proceedings which are instituted and prosecuted according to the ordinary rules and provisions relating to actions at law or suits in equity.'' State v. Dalton, 353 Mo. 307, 182 S.W.2d 311, 312. Section 506.040 () provides: 'There shall be one form of action to be known as 'civil action." Articles 8 and 9, now sections 516.010 to 516.370, was part of Chapter 6. 'Civil Procedure--General Code,' RS 1939, not repealed by Laws 1943, p. 353, supra; and the word 'action' in statutes of limitation applies, as prior to Laws 1943, p. 353, to the one form of action theretofore existing under said prior Sec. 847 for the enforcement and protection of private rights or the redress...
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