Savage's Estate, Matter of, No. 12712
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | MAUS |
| Citation | 650 S.W.2d 346 |
| Parties | In the Matter of the ESTATE OF Nina SAVAGE, Deceased. Mona Joy LOVE, Claimant-Respondent, v. Joe POGUE, Personal Representative, Defendant-Appellant. |
| Decision Date | 14 April 1983 |
| Docket Number | No. 12712 |
Page 346
Mona Joy LOVE, Claimant-Respondent,
v.
Joe POGUE, Personal Representative, Defendant-Appellant.
Southern District,
Division Two.
Page 347
John Sims, Neosho, for defendant-appellant.
Page 348
Robert W. Evenson, Pineville, for claimant-respondent.
MAUS, Presiding Judge.
This action centers around the power of a judgment creditor to seize and exercise certain rights of a surviving spouse in the estate of the deceased spouse. The deceased died May 5, 1981. The controversy is governed by the 1980 Probate Code, S.B. 637, effective January 1, 1981. The judgment creditor has attempted to benefit from these rights by levying upon them, purchasing them at an execution sale and filing appropriate instruments in the Probate Division.
By one such instrument the creditor purported, on behalf of the surviving spouse, to renounce the will under the provisions of § 474.160. By separate applications she sought payment of an allowance for support under § 474.260, payment of a homestead allowance under § 474.290 and to claim exempt property under § 474.250. By motion, the personal representative sought the dismissal of the election and applications. Upon the issues being so joined, a hearing was held by the Probate Division. The parties to that hearing were the judgment creditor and the personal representative. The judgment of the Probate Division directed the personal representative to pay the creditor $7,200 for the support allowance, $7,500 for the homestead allowance and to deliver to her a pickup truck as exempt property. It declared the judgment creditor to be entitled to renounce the will and take the surviving spouse's elective share. The personal representative has appealed from that judgment.
The judgment creditor has not questioned the right of the personal representative to appeal. Nonetheless, it is the duty of this court to determine the propriety of an appeal by the personal representative. Crigler v. Frame, 632 S.W.2d 94 (Mo.App.1982); In re Estate of Hill, 435 S.W.2d 722 (Mo.App.1968); Freeman v. De Hart, 303 S.W.2d 217 (Mo.App.1957).
The right of appeal is statutory. Shock v. Berry, 221 Mo.App. 718, 285 S.W. 122 (1926). There are now two statutes, general in scope, which on their face apply to appeals from the Probate Division. Before amendment by H.B. 1634 (1978), effective January 2, 1979, § 472.160 provided for appeals from the probate court to the circuit court by "[a]ny interested person aggrieved" by the judgment. An interested person was defined as "heirs, devisees, spouses, creditors or any others having a property right or claim against the estate of a decedent being administered. This meaning may vary at different stages and different parts of a proceeding and must be determined according to the particular purpose and matter involved." § 472.010(15). This statute was held to extend the right of appeal to the circuit court to any interested person aggrieved, even though that person was not named as a party and did not participate in the proceeding in the probate court. State ex rel. Jones v. Davis, 240 Mo.App. 411, 216 S.W.2d 155 (1948). Section 512.020 extends the right of appeal to an appellate court to "[a]ny party to a suit aggrieved by any judgment ...." Before the amendment of 1978 mentioned above, this section was held to limit an appeal to an appellate court to those who participated in the proceeding in the circuit court. Ruddy v. Labar's Estate, 241 Mo.App. 98, 231 S.W.2d 833 (1950); Service Life Insurance Co. of Fort Worth v. Davis, 466 S.W.2d 190 (Mo.App.1971). The section was held to grant the right of appeal to a personal representative, a party to the proceeding in the circuit court, when he was aggrieved within the meaning of the statute. In re Estate of Hill, supra.
By the amendment mentioned, § 472.160 now provides for an appeal from the probate division to the appropriate appellate court by any interested person aggrieved by the judgment. S.B. 637 (1980). Since that amendment, the relationship between the two sections has not been the subject of an appellate decision. The scope of the right of appeal to an appellate court created by amended § 472.160 has not been defined. However, there is no reason to find that it was the intent of the legislature, by the
Page 349
amendment, to limit the right of a personal representative to appeal. Under § 472.160, before the amendment, the personal representative was held to have the right to appeal to the circuit court as an "interested party" when he was, as hereafter discussed, aggrieved by the judgment. That same construction must apply to the right of appeal under amended § 472.160. In re Estate of Hill, supra.Even though a personal representative is named as a party, he is not entitled to appeal every judgment pertaining to the estate as an "aggrieved party." In re Estate of Hill, supra; Shock v. Berry, supra. The refinements of who may be an aggrieved party are contained in numerous cases. Generally, "a party is aggrieved when the judgment operates prejudicially and directly upon his personal or property rights or interests ...." Hertz Corp. v. State Tax Commission, 528 S.W.2d 952, 954 (Mo. banc 1975). To appeal as such, a personal representative must be adversely affected in his representative capacity as distinguished from his personal capacity. In re Franz' Estate, 372 S.W.2d 885 (Mo.1963); In re Estate of Hill, supra. It has been held a personal representative may not appeal from a judgment determining interests among those claiming through the decedent. Williams v. Hund, 302 Mo. 451, 258 S.W. 703 (banc 1924); State ex rel. St. Louis Union Trust Co. v. Sartorius, 350 Mo. 46, 164 S.W.2d 356 (banc 1942). He could not appeal from an order of distribution. In re Whitsett's Estate, 237 Mo.App. 1295, 172 S.W.2d 965 (1943). Nor could he appeal from a decree proclaiming a claimant to be the adopted daughter of the decedent. Love v. White, 348 Mo. 640, 154 S.W.2d 759 (1941). He could not appeal from a decree cancelling an heir's renunciation of his part of an estate. Bostian v. Milens, 239 Mo.App. 555, 193 S.W.2d 797 (1946). Generally, he could not appeal the result of a will contest. Shock v. Berry, supra.
However, the personal representative occupies a fiduciary position in regard to the assets of the estate and the interests therein of those claiming through the decedent. Love v. White, supra; Cooper v. Jensen, 448 S.W.2d 308 (Mo.App.1969); Trieseler v. Ratican, 237 Mo.App. 490, 173 S.W.2d 595 (1943). The extent of his right to appeal against claimants adverse to those interests has been held to depend upon whether or not the heirs and devisees of the decedent were parties in the trial court. Compare Love v. White, supra; Cooper v. Jensen, supra; In re Clark's Estate, 213 S.W.2d 645 (Mo.App.1948). Also see Rone's...
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In re Brown, Bankruptcy No. 97-61897.
...13 Fed.R.Bankr.P. 1009(a). 14 11 U.S.C. § 522(b)(2)(B). 15 Garner v. Strauss, 952 F.2d 232, 234 (8th Cir.1991) (citing In re Savage, 650 S.W.2d 346, 351 (Mo.Ct.App.1983)); Merrill Lynch, Pierce, Fenner and Smith, Inc. v. Shackelford, 591 S.W.2d 210, 215 (Mo.Ct.App.1979); Kaufmann v. Krahlin......
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Garner, In re, No. 90-3068
...on the fact that only one of the holders of the entirety interest was in debt to the creditor. See e.g., Matter of Estate of Savage, 650 S.W.2d 346, 351 (Mo.Ct.App.1983); Merrill Lynch, Pierce, Fenner and Smith, Inc. v. Shackelford, 591 S.W.2d 210, 215 (Mo.Ct.App.1979); Kaufmann v. Krahling......
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Estate of Broadhurst, No. 14836
...representative has no right of appeal from the judgments in question. A similar issue was considered in Matter of Estate of Savage, 650 S.W.2d 346 The widow's contention must be determined under the applicable statutes construed in the light of well established principles. "The right of app......
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In re Smith, Bankruptcy No. 96-41156-399
...F.2d 232 at 235 n. 1 citing Otto F. Stifel's Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S.W. 67, 71 (1918) see also Estate of Savage, 650 S.W.2d 346, 351 (Mo.Ct.App.1983) ("The estate of tenancy by the entirety is well established in Missouri. Property so held is not subject to a lien or a......
-
In re Brown, Bankruptcy No. 97-61897.
...13 Fed.R.Bankr.P. 1009(a). 14 11 U.S.C. § 522(b)(2)(B). 15 Garner v. Strauss, 952 F.2d 232, 234 (8th Cir.1991) (citing In re Savage, 650 S.W.2d 346, 351 (Mo.Ct.App.1983)); Merrill Lynch, Pierce, Fenner and Smith, Inc. v. Shackelford, 591 S.W.2d 210, 215 (Mo.Ct.App.1979); Kaufmann v. Krahlin......
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Garner, In re, No. 90-3068
...on the fact that only one of the holders of the entirety interest was in debt to the creditor. See e.g., Matter of Estate of Savage, 650 S.W.2d 346, 351 (Mo.Ct.App.1983); Merrill Lynch, Pierce, Fenner and Smith, Inc. v. Shackelford, 591 S.W.2d 210, 215 (Mo.Ct.App.1979); Kaufmann v. Krahling......
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Estate of Broadhurst, No. 14836
...representative has no right of appeal from the judgments in question. A similar issue was considered in Matter of Estate of Savage, 650 S.W.2d 346 The widow's contention must be determined under the applicable statutes construed in the light of well established principles. "The right of app......
-
In re Smith, Bankruptcy No. 96-41156-399
...F.2d 232 at 235 n. 1 citing Otto F. Stifel's Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S.W. 67, 71 (1918) see also Estate of Savage, 650 S.W.2d 346, 351 (Mo.Ct.App.1983) ("The estate of tenancy by the entirety is well established in Missouri. Property so held is not subject to a lien or a......