Thomson's Estate, In re, No. 42416

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM
Citation29 A.L.R.2d 1239,246 S.W.2d 791,362 Mo. 1043
Parties, 29 A.L.R.2d 1239 In re THOMSON'S ESTATE. KOPP v. THOMSON et al
Docket NumberNo. 42416,No. 1
Decision Date11 February 1952

Page 791

246 S.W.2d 791
362 Mo. 1043, 29 A.L.R.2d 1239
In re THOMSON'S ESTATE.
KOPP
v.
THOMSON et al.
No. 42416.
Supreme Court of Missouri, Division No. 1.
Feb. 11, 1952.
Motion for Rehearing or to Transfer to Court En Banc Denied
March 10, 1952.

[362 Mo. 1044] Robert S. Eastin, Stanley Garrity, Scott R. Timmons and Caldwell, Downing, Noble & Garrity, all of Knasas City, for appellant.

[362 Mo. 1045] Paul S. Kelly, David M. Proctor, Jr., Kansas City, for respondents.

[362 Mo. 1046] COIL, Commissioner.

Appeal from a judgment of the circuit court dismissing appellant-administrator's application to require refund of $50,000 under Mo.R.S.1949, Sec. 465.400, V.A.M.S. The application was filed in the probate court of Jackson County where, upon dismissal, an appeal was perfected to the circuit court. The probate court and the circuit court on appeal dismissed the application on the ground that it should upon its face that the administrator had unreasonably delayed in filing it.

Administrator's application, filed March 9, 1950, averred essentially that Thomas P. Thomson died intestate leaving two brothers and two sisters as his only heirs at law; that he was appointed administrator on April 12, 1932 and filed an inventory on April 28, 1932, listing personal property of approximately $204,000 and some unappraised real estate; that on August 20, 1932, a certain suit was filed against the administrator by one Pryor wherein an accounting between deceased Thomson and plaintiff in that suit was sought, based upon a partnership allegedly existing between deceased and Pryor; that on November 22, 1932, the probate court made an order of partial distribution upon the application of the administrator, ordering the sum of $12,500 distributed to each heir at law, after a hearing at which evidence was presented that there would be sufficient assets remaining in the estate with which to pay all debts including any debt established by the

Page 791

Pryor suit; that on December 3, 1934, judgment was rendered in the circuit court in the case of Pryor v. Kopp, Administrator, in the sum of $123,786.27 and costs of $867.59, which judgment was affirmed by the supreme court on August 17, 1938; that the judgment was certified to the probate court and classified as a claim of the fourth class; that all claims have been paid except the claim of Pryor or his assignee, on which claim the sum of $101,500 has been paid leaving a balance due of $22,286.27 principal plus some $35,000 interest; that there is now in the estate, after all salable real estate has been sold, the sum of about $6000 of which approximately $5200 is available for application on the Pryor claim.

[362 Mo. 1047] The administrator prayed that the court enter an order requiring each of the four heirs at law to refund the sum of $12,500 to apply on the payment of the balance of the Pryor claim.

After proceedings not important here, two of the heirs at law, present respondents Nona E. Thomson and Margaret K. Thomson, filed a motion to dismiss the application on the ground that the application affirmatively showed unreasonable delay on the part of the administrator in making it. The probate court denied the application and, as noted, the administrator duly perfected an appeal to the circuit court, where the court entered its judgment sustaining respondents' motion to dismiss 'on the ground of unreasonable delay of the administrator in commencing this proceeding, as shown upon the face of said application.' It is from this final judgment of dismissal that the administrator has appealed. There was no evidence adduced at any hearing in either the probate or the circuit court; the judgments of dismissal were rendered upon a consideration of the application alone.

Section 465.400 is: 'If after the payment of the legacies or distributions, it becomes necessary that the same, or any part thereof, be refunded for the payment of debts, the court, on application, shall apportion the same among the legatees or distributees, according to the amount received by them, except that specific legacies shall not be required to be refunded unless the residue be not sufficient to satisfy such debts. If any legatee or distributee fail to refund according to such order, on motion of the executor or administrator, the court shall, ten days' notice in writing having been given to the legatee or distributee, enter judgment for the amount apportioned to him.'

Respondents contend that the judgment of the court dismissing the application is proper because an application under Sec. 465.400 must be made within a reasonable time; that the provate court is the proper court to determine whether the application has been made in a reasonable time; that where, as here, the application shows upon its face that it was filed more than 15 years after the establishment of the only unpaid

Page 793

debt and nearly 12 years from the affirmance of the judgment establishing that debt, the delay is so unreasonable as to authorize the probate court to find that the right of the administrator to apply for refund has been 'waived' or 'extinguished', or barred by laches.

Appellant contends that the application for refund states a claim on which relief can be granted under Sec. 465.400; that the probate court may not apply the doctrine of laches because it may not be invoked other than in a case wherein the plaintiff has appealed to a court of equity for relief; that waiver and extinguishment as urged by respondents are nothing more than laches; and that even if these [362 Mo. 1048] equitable doctrines may be applied to this application, delay alone is not sufficient for their invocation.

Section 465.400 contains no limitation as to time within which an application provided for by the section shall be made. It was said in Rumsey v. Otis, 133 Mo. 85, 98, 34 S.W. 551, 554, that refunding orders provided for by the section must be made prior to the final settlement of the estate. This statement was dictum in that opinion; however, in our view, it correctly states the meaning of the section. This does not necessarily mean that under all circumstances an administrator may obtain an order for a refund so long as the application is filed before a final settlement in an estate. It does mean that the statute contemplates that an application thereunder must be filed during the course of the administration, and prior to final settlement of an estate. The maximum possible time limit is any time up to final settlement.

Respondents point to Mo.R.S.1949, Sec. 463.170, V.A.M.S., which provides, in part, substantially, that if the personal estate is insufficient to pay debts and legacies, the executor or administrator may apply for a sale of all or part of the real estate to pay such debts and legacies. Respondents point out that the section fixes no time within which the application to sell shall be made. They call attention to Gunby v. Brown, 86 Mo. 253, holding that the application must be filed within a reasonable time, such reasonable time depending upon the circumstances of each case. Respondents further say that by analogy, Sec. 465.400 should be construed as including by implication the words 'within a reasonable time.'

As we view the matter, however, the question of whether the words 'within a reasonable time' are by implication a part of Sec. 465.400 is not decisive. This, for the reason that, unless an arbitrary maximum time is fixed within which the application must be made either by analogy to statutes of limitations or otherwise, then the words 'within a reasonable time' mean no more than that an appropriate court may determine on hearing or trial whether a given lapse of time under the evidence adduced should bar the right to a refund. This is simply another way of saying that in a given proceeding, because of lapse of time and the effect thereof, it may be unjust or prejudicial to permit an exercise of the statutory right. The important and decisive question is whether the probate court, or the circuit court on appeal from the probate court, may properly...

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5 practice notes
  • Franz' Estate, In re, No. 49361
    • United States
    • Missouri Supreme Court
    • 11 Noviembre 1963
    ...by statute or necessarily incident to the proper exercise of duties directly imposed. In re Thomson's Estate (Kopp v. Thomson et al.), 362 Mo. 1043, 246 S.W.2d 791, 797[7, 8], 29 A.L.R.2d 1239, the court said: 'The probate court has been given jurisdiction of the specialized function of sup......
  • Schaeffer v. Moore, No. 43657
    • United States
    • Missouri Supreme Court
    • 14 Diciembre 1953
    ...estoppel against the assertion of the right.' Vol. 2, Pomeroy's Equity Jurisprudence, 5th Ed., Sec. 419d, p. 177; In re Thomson's Estate, 362 Mo. 1043, 246 S.W.2d 791, 29 A.L.R.2d 1239; Jones v. McGonigle, 327 Mo. 457, 37 S.W.2d 892, 74 A.L.R. 550. However, lapse of time is an element enter......
  • Bohan v. United States, Civ. A. No. 16866-3.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 19 Marzo 1971
    ...is partially distributed subject to return on any later discovered prejudice to other beneficiaries or claimants. In re Thomson's Estate, 362 Mo. 1043, 246 S.W.2d 791, 29 A.L.R.2d 1239; Kopp v. Thomson, Mo., 277 S.W.2d 579. Thus, in every sense a partial distribution in Missouri is a condit......
  • Kopp v. Thomson, No. 44259
    • United States
    • United States State Supreme Court of Missouri
    • 14 Marzo 1955
    ...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 George C. Kopp, Administrator of the Estate of Thomas P. Thomson, deceased, filed an application on March 9, 1950, to......
  • Request a trial to view additional results
5 cases
  • Franz' Estate, In re, No. 49361
    • United States
    • Missouri Supreme Court
    • 11 Noviembre 1963
    ...by statute or necessarily incident to the proper exercise of duties directly imposed. In re Thomson's Estate (Kopp v. Thomson et al.), 362 Mo. 1043, 246 S.W.2d 791, 797[7, 8], 29 A.L.R.2d 1239, the court said: 'The probate court has been given jurisdiction of the specialized function of sup......
  • Schaeffer v. Moore, No. 43657
    • United States
    • Missouri Supreme Court
    • 14 Diciembre 1953
    ...estoppel against the assertion of the right.' Vol. 2, Pomeroy's Equity Jurisprudence, 5th Ed., Sec. 419d, p. 177; In re Thomson's Estate, 362 Mo. 1043, 246 S.W.2d 791, 29 A.L.R.2d 1239; Jones v. McGonigle, 327 Mo. 457, 37 S.W.2d 892, 74 A.L.R. 550. However, lapse of time is an element enter......
  • Bohan v. United States, Civ. A. No. 16866-3.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 19 Marzo 1971
    ...is partially distributed subject to return on any later discovered prejudice to other beneficiaries or claimants. In re Thomson's Estate, 362 Mo. 1043, 246 S.W.2d 791, 29 A.L.R.2d 1239; Kopp v. Thomson, Mo., 277 S.W.2d 579. Thus, in every sense a partial distribution in Missouri is a condit......
  • Kopp v. Thomson, No. 44259
    • United States
    • United States State Supreme Court of Missouri
    • 14 Marzo 1955
    ...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 George C. Kopp, Administrator of the Estate of Thomas P. Thomson, deceased, filed an application on March 9, 1950, to......
  • Request a trial to view additional results

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