Blackwood, Langworthy & Tyson, LLC v. Jon D. Knipp

In the
Missouri Court of Appeals
Western District


BLACKWOOD, LANGWORTHY & 
TYSON, LLC,  WD81006
Appellant,  OPINION FILED:

v.  JANUARY 22, 2019

JON D. KNIPP, ET AL., 

Respondents. 


Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Mark Anthony Styles Jr, Judge

Before Division Three: Anthony Rex Gabbert, Presiding Judge, Alok Ahuja, Judge,
Victor C. Howard, Judge

Blackwood, Langworthy & Tyson, L.C. (Appellant) appeals the circuit court’s grant of

judgment on the pleadings in favor of Jon D. Knipp and Linda Miller (Respondents collectively),

thereby dismissing Appellant’s Petition for Accounting. Appellant asserts that the trial court erred

in granting Respondents’ motion because Appellant’s petition complied with all pleading

requirements and stated a valid claim under Section 461.300,1 Appellant had standing to bring the

action, the action was brought in the proper forum, and Appellant had not waived its claims. We

reverse.

1
All statutory citations are to the Revised Statutes of Missouri 2016, as supplemented through 2018, unless
otherwise noted.
 Background

Walter Knipp was a resident of Jackson County, Missouri. He had three adult children, Jon

Knipp, Robin Choudhury, and Linda Miller. In August 2008, Walter Knipp became the subject of

a guardianship and conservatorship proceeding. Competing petitions were filed in the Probate

Division of the Circuit Court of Jackson County seeking the appointment of a guardian and

conservator, one filed by Jon Knipp and the other filed by Robin Choudhury. On May 5, 2009,

Choudhury was appointed as guardian of the person and conservator of the estate of Walter Knipp,

an incapacitated and disabled person, and letters of guardianship and conservatorship were issued

to Choudhury on June 11, 2009.

Walter Knipp died testate June 8, 2011. On July 8, 2011, a decedent’s estate was opened

in the Probate Division of the Circuit Court of Jackson County. Jon Knipp was thereafter granted

Letters Testamentary in the decedent’s estate.

Shortly before Walter Knipp’s death it was discovered he owned certain financial assets

that had not been included in the original inventory for his conservatorship. Those assets included

U.S. Savings Bonds titled in Walter Knipp’s name with pay on death designations to certain of

Walter Knipp’s children, U.S. Savings Bonds titled in Walter Knipp’s name jointly with certain of

Walter Knipp’s children, stock certificates titled in Walter Knipp’s name jointly with his son, Jon

Knipp, and certificates of deposit titled in Walter Knipp’s name jointly with his two daughters. In

the first “annual settlement filing” filed after Walter Knipp’s death (spanning June 12, 2010 to

April 5, 2012) Choudhury amended the conservatorship inventory to include these assets. The

assets were never physically turned over to Choudhury.

On January 27, 2012, Appellant filed a claim against the decedent’s estate “for professional

services rendered” in association with administration of decedent’s guardianship and

2
conservatorship estate. Appellant represented Choudhury from August 12, 2008, to approximately

February 21, 2012, in the guardianship proceeding.2

On August 24, 2012, Appellant filed in the decedent’s estate a demand for recovery of

nonprobate assets, demanding pursuant to Section 461.300 that the personal representative, Jon

Knipp, recover for the estate and creditors all recoverable transfers of decedent’s property

sufficient to satisfy claims of creditors and expenses of administration of the probate estate.

Appellant demanded, in the alternative, that the personal representative bring an action for

accounting against the recipients of all property of decedent transferred other than from the

administration of the decedent’s probate estate. Appellant also demanded that the personal

representative provide knowledge related to the identity of recipients of recoverable transfers. Jon

Knipp did not commence an action on behalf of the estate but filed a “Response” to Appellant’s

demand addressing Appellant as “Claimant,” not disputing Appellant’s right to make the demand

under Section 461.300, and providing four and a half pages of information regarding the identity

of alleged recipients of recoverable transfers and/or property belonging to and withheld from

decedent’s estate.3

On December 6, 2012, Appellant filed a Petition for Accounting in the decedent’s estate

against Respondents and Robin Choudhury alleging that these individuals possessed property

owned by Walter Knipp immediately before his death, or were recipients of recoverable transfers

2
Choudhury retained the law firm of Olsen and Talpers to complete the conservatorship, and that firm entered
its appearance in the conservatorship on February 21, 2012.
3
If the personal representative fails to commence the action, the personal representative must disclose to the
qualified claimant or qualified claimants who make the written demand all knowledge within the possession of the
personal representative reasonably relating to the identity of any recipient of a recoverable transfer made by the
decedent. If the personal representative fails within thirty days to commence an action, any qualified claimant may
commence an action for accounting. § 461.300.2.

3
of decedent’s property as defined in Section 461.300, and should be required to deliver those assets

so that claims and expenses of administration of the conservatorship could be paid. Jon Knipp and

Linda Miller filed answers in February of 2013 denying Appellant was entitled to relief, primarily

arguing that Appellant inadequately performed its duties as attorney in the conservatorship and

sought unreasonable fees for that service.

On December 6, 2012, Appellant also filed an Application for Allowance of Compensation

to Attorneys for Guardian and Conservator (“Application”) in the conservatorship, seeking

$28,578.43, for the period from August 12, 2008 through February 21, 2012.

On March 29, 2013, Choudhury filed a Final Settlement and Revised Third Amended

Inventory of Property in the conservatorship. The revised inventory continued to list the stock,

insurance proceeds, savings bonds, and certificates of deposit as personal property of the estate.

The Final Settlement also noted that causes of action against the recipients of those items were

being pursued in the decedent’s estate.

On April 17, 2013, Jon Knipp filed Objections to Petition for Approval of Final Settlement,

Final Settlement and Inventory. He objected, in part, to the inclusion of the stock, insurance

proceedings, savings bonds, and certificates of deposit in the inventory of the conservatorship

estate. Additionally, he objected to causes of action against the recipients of those items. Jon

Knipp then resigned as personal representative of the decedent’s estate and on April 18, 2013, the

court issued Letters of Administration De Bonis Non4 appointing Robin Choudhury personal

representative de bonis non. On December 24, 2014, the court dismissed Jon Knipp’s objections,

4
If the executor of an estate resigns, such as here, “letters of administration of the goods remaining
unadministered shall be granted” in the court’s discretion to any qualified beneficiary or to any person to whom
administration could have been granted if original letters had not been obtained. § 473.147. This person is called an
administrator de bonis non. Id.

4
holding that Jon Knipp had no vested property interest in the decedent’s estate because the

decedent’s will named the decedent’s wife as the sole beneficiary of his estate. The court

determined that Jon Knipp, therefore, had no standing to object to the settlement of the

conservatorship estate because he had no vested property interest in the decedent’s estate.5 The

court further stated that, even if Jon Knipp had standing to object to the final settlement, “[t]he

Objections seek to litigate title to various assets which Objector alleges belonged to persons other

than Walter. Such claims are the proper subject of a discovery of assets proceeding in the

Decedent’s Estate under § 473.340 RSMo., and may not be adjudicated via the procedure of ruling

on objections to a final settlement.”

On May 6, 2015, Appellant filed a Second Amended Application for Allowance of

Compensation to Attorneys for Guardian and Conservator in the conservatorship. The probate

court heard evidence on the Second Amended Application on August 27, 2015. On September 2,

2015, the court awarded Appellant’s requested total of $20,578.43, as a class 2 claim pursuant to

Section 475.211.

On February 29, 2016, Choudhury filed an Amended Final Settlement in the

conservatorship case. Among the cash distributions noted in the “Paidout/Credit” column in the

spreadsheet attached to the Amended Final Settlement was an entry dated 12/28/2015 described as

“Proportionate amount of Legal Fees Paid to Blackwood, Langworthy, & Tyson” (sic), in the

amount of $3,912.04. Other credits listed in the same spreadsheet included various causes of action

against Jon Knipp and Linda Miller for alleged wrongful disposition of assets noted as “Being

Pursued in the Decedent’s Estate.” (At the time of the final settlement, Choudhury was also

5
To maintain objections to a settlement in a conservatorship, the party raising the objection must have a
vested property interest in the protectee’s estate. Taylor v. Taylor, 47 S.W.3d 377, 383 (Mo. App. 2001).

5
personal representative of the decedent estate.) On March 7, 2016, Jon Knipp filed an objection

to the Amended Final Settlement. The court issued a “Judgment Dismissing Objections to

Amended Final Settlement” stating that nothing had changed since the court entered its Judgment

regarding Jon Knipp’s earlier objections.

The circuit court entered judgment approving the conservator’s Amended Final Settlement

on April 1, 2016, and entered an Order of Discharge on April 5, 2016, declaring “all assets have

been distributed during the administration of the estate.” The court further ordered “the

conservator and the sureties on the conservator’s bond if any be hereby discharged.”

On November 21, 2016, Respondents filed their Motion for Judgment on the Pleadings in

the decedent’s estate to dispose of the issues raised by Appellant’s Petition for Accounting. They

raised two grounds for dismissal: 1) that the remedy of “accounting” the Petition sought was not

available under the statute, only a money judgment, and 2) there was no basis to pursue recoverable

transfers for the payment of administrative expenses. Respondents’ motion acknowledged

Appellant claimed to be a “qualified claimant” of the deceased’s estate and did not challenge this

claim.

Appellant responded with Suggestions in Opposition to Respondents’ Motion for Judgment

on the Pleadings. In a Reply in support of their motion, Respondents argued that Appellant was

not a “creditor” of Walter Knipp or his decedent’s estate, but of Choudhury in her personal capacity

or capacity as conservator, and she had been discharged from any liability as conservator.

The trial court granted Respondents’ motion for judgment on the pleadings on June 30,

2017, ruling that the “primary argument of Movant is that Petitioner is not a creditor of the estate

of Decedent, and therefore cannot bring an action for accounting under §461.300 RSMo.” The

court further ruled that, although Appellant had obtained a judgment from the court in the

6
guardianship and conservatorship estate, that claim did not automatically carry over to the

decedent estate. The court additionally found: 1) The amounts due Appellants were not debts of

Walter Knipp or his decedent’s estate, nor liabilities of Walter Knipp arising in contract, tort, or

otherwise; 2) The fees were incurred during the administration of Walter Knipp’s guardianship and

conservatorship estate, and not incurred by Walter Knipp himself; 3) Appellant was not a “qualified

claimant” as defined by Section 461.300 and therefore had no standing to bring an action for

accounting; 4) Appellant’s proper recourse would have been to object to the final settlement in the

guardianship and conservatorship estate; and 5) Appellant’s failure to object to the final settlement

in Walter Knipp’s guardianship and conservatorship estate constituted waiver of its claim.

This appeal follows.

Standard of Review6

We review a court’s grant of judgment on the pleadings de novo. Seay v. Jones, 439

S.W.3d 881, 887 (Mo. App. 2014).

Review of a grant of a motion for judgment on the pleadings requires this
Court to decide whether the moving party is entitled to judgment as a matter of law
on the face of the pleadings. For purposes of the motion, the well-pleaded facts
pleaded by the nonmoving party are treated as admitted. The trial court’s grant of
judgment on the pleadings will be affirmed only if review of the totality of the facts
pleaded by the petitioner and the benefit of all reasonable inferences drawn
therefrom reveals that petitioner could not prevail under any legal theory.

Morgan v. Saint Luke's Hosp. of Kansas City, 403 S.W.3d 115, 117 (Mo. App. 2013) (internal

quotation marks and citations omitted). “The reviewing court is primarily concerned with the

correctness of the result, not the route taken by the trial court to reach it; therefore, the trial court’s

6
Respondents argue that Appellant’s appeal should be dismissed due to briefing deficiencies in violation of
Rule 84.04(d). As we prefer to resolve an appeal on the merits of the case and can ascertain Appellant’s arguments
despite any briefing deficiencies, we proceed with review of Appellant’s claims. See Payne v. Markeson, 414 S.W.3d
530, 545 (Mo. App. 2013).

7
judgment will be affirmed if it is correct on any ground supported by the record regardless of

whether the trial court relied on that ground.” Barrett v. Greitens, 542 S.W.3d 370, 376 (Mo. App.

2017).

A party moving for judgment on the pleadings assumes the pleaded facts to be true and

must show that the facts are, nevertheless, insufficient as a matter of law. Id. “If the petition sets

forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a

claim and the motion to dismiss must be denied.” Underwood v. Kahala, LLC, 554 S.W.3d 485,

493 (Mo. App. 2018) (internal quotation marks and citation omitted). “The trial court (and the

reviewing court) cannot consider matters beyond plaintiff’s petition, unless Rule 74.04’s summary

judgment procedures are affirmatively (and properly) invoked and enforced by the trial court.” Id.

(emphases original). If extrinsic matters are included, the trial court must convert the motion to

one for summary judgment by providing notice that it is doing so, giving the parties reasonable

opportunity to present all materials made pertinent by the trial court’s invocation of Rule 74.04,

and compelling adherence to the mandatory dictates of Rule 74.04 procedures for summary

judgment. Id. Where the trial court gives no such notice and the judgment expressly grants the

motion to dismiss, this is an affirmative statement that the trial court did not convert the motion

and did not consider matters outside the pleadings. Id. at 494. (citing Naylor Senior Citizens

Housing, LP v. Sides Construction Co., Inc., 423 S.W.3d 238, 241 n.1 (Mo. banc 2014).

Analysis

Judgment on the Pleadings

Appellant argues that the trial court erred in granting Respondents’ Rule 55.27 motion for

judgment on the pleadings. Respondents contend the court correctly determined that Appellant

was not a “qualified claimant” as defined by Section 461.300.10(3) and therefore lacked standing

8
to pursue recoverable transfers in the decedent’s estate. Respondents argue that Appellant’s only

recovery was in the conservatorship estate and its claim was released or satisfied as a matter of

law upon discharge of the conservator. Further, Respondents contend Appellant’s petition failed

to state a cause of action because it sought equitable relief or a traditional accounting rather than

the sole remedy contemplated by Section 461.300, a money judgment.

We first note that nothing within the record or the court’s judgment suggests that the court

converted Respondents’ Rule 55.27 motion for judgment on the pleadings to a motion for summary

judgment, and neither party makes this claim. The court’s Judgment states that it reviewed only

“the Motion and Response filed by Petitioner, as well as oral argument from the attorneys.”

The circuit court granted Respondents’ motion for judgment on the pleadings on the

grounds that Appellant had no standing to bring the action because Appellant was not a “qualified

claimant” under Section 461.300(2). Under Section 461.300(2), only a personal representative or

qualified claimant may bring an action for accounting, and a qualified claimant may only do so

after making a written demand of the personal representative who thereafter fails to initiate such

action. “A party has standing to sue when it has an interest in the subject matter of the suit that

gives it a right to recovery, if validated.” Portfolio Recovery Assocs., LLC v. Schultz, 449 S.W.3d

427, 434 (Mo. App. 2014). “Lack of standing cannot be waived and may be considered by the

court sua sponte.” Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 622 (Mo. App. 2009).

Lack of standing, however, is determined solely on the basis of the petition. Stander v. Szabados,

407 S.W.3d 73, 80 (Mo. App. 2013).

Appellant alleged in its Petition for Accounting that it was a “qualified claimant” of the

estate of Walter Knipp pursuant to Section 461.300(2) with authority to bring an action for

accounting to enforce the obligations of alleged recipients of recoverable transfers. Appellant

9
alleged it made a written demand of the personal representative who failed to initiate the requested

action. Respondents filed answers in February of 2013 generally denying all substantive

allegations in the petition and contending Appellant ineffectively represented the conservatorship

and requested excessive fees, but made no specific contentions that Appellant had no standing to

bring the action for want of being a “qualified claimant.”7

On November 21, 2016, nearly four years after the Petition for Accounting was filed,

Respondents filed their Motion for Judgment on the Pleadings raising only two grounds for

dismissal of Appellant’s petition – 1) that only a money judgment was available under the statute,

not the remedy of “accounting” the Petition sought, and 2) there was no basis to pursue recoverable

transfers for the payment of administrative expenses. Respondents’ motion acknowledged

Appellant’s averment that it was a “qualified claimant” of the decedent’s estate and did not

challenge this claim; similarly, Respondents’ motion did not dispute that Appellant had a pending

“Claim” against the decedent’s estate.

We find that the Petition filed by Appellants alleged standing as a “qualified claimant,” and

neither Respondent’s answer to that petition or motion for judgment on the pleadings disproved

this claim. Evidence not included within the pleadings cannot be considered in determining

whether a plaintiff lacks standing. Breeden v. Hueser, 273 S.W.3d 1, 15 (Mo. App. 2008). The

7
Jon Knipp resigned as personal representative of the decedent’s estate in April 2013. Thereafter, Choudhury
was appointed administrator de bonis non with authority to then enforce the obligations of alleged recipients of
recoverable transfers under Section 461.300. Choudhury simultaneously remained conservator. Choudhury’s Final
Settlement in the conservatorship identified the disputed assets as inventory of the conservatorship estate, with “causes
of action” against the recipients of those items being turned over to the decedent’s estate for recovery of that property.
The record reflects that Choudhury, also a named respondent in Appellant’s Petition for Accounting who filed no
answer, viewed Appellant a proper party to enforce recovery of the disputed assets under Section 461.300(2) as
evidenced by her acknowledgement that assets of the conservatorship were being pursued in the decedent’s estate
through Appellant’s petition for accounting.

10
dismissal below was based on the pleadings and the pleadings affirmed Appellant’s status as a

“qualified claimant” entitled to enforce an action for accounting. To the extent the court believed

from the face of the pleadings that the action was barred by lack of standing, the court erred.

We are cognizant, nonetheless, that “[t]he question of a party’s standing can be raised at

any time, and an appellate court may do so sua sponte.” Chastain v. Geary, 539 S.W.3d 841, 848

(Mo. App. 2017) (internal quotation marks and citation omitted). As the issues decided by the trial

court will remain on remand, and standing implicates a court’s authority to reach substantive

issues, we proceed to review the substantive issues reached by the court and raised by the parties

on appeal.

Standing

The trial court ruled that, although Appellant had obtained a judgment from the court during

the conservatorship, that claim did not automatically carry over to the decedent estate such that

Appellant could pursue recoverable transfers to pay that claim. The court determined that

Appellant was not a “qualified claimant” and had no standing to bring an action for accounting

under Section 461.300 because: 1) The amounts due Appellants were not debts of Walter Knipp

or his decedent’s estate, nor liabilities of Walter Knipp arising in contract, tort, or otherwise, and

2) the fees were incurred during the administration of Walter Knipp’s guardianship and

conservatorship estate, and not incurred by Walter Knipp himself.

A “qualified claimant” pursuant to Section 461.300.10(3) includes a “creditor, surviving

spouse, dependent child, or a person acting for a dependent child of the decedent.” A “creditor” is

“any person to whom the decedent is liable, which liability survives whether arising in contract,

tort, or otherwise, and any person to whom the decedent’s estate is liable for funeral expenses and

the reasonable cost of a tombstone.” § 461.300.10(1). Under Section 461.300.1, each recipient of

11
a recoverable transfer of a decedent’s property “shall be liable” to account for a pro rata share of

the value of all such property received, to the extent necessary to discharge, among other things,

“claims remaining unpaid after application of the decedent’s estate.” “Claims” is defined in

Section 472.010(3) as including “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.”

The statutes do not define precisely what constitutes debts or liabilities of a decedent.

Nevertheless, we find instances within the statutes supporting Appellant’s claim that services

provided to a conservatorship constitute debts and/or liabilities of the decedent surviving final

settlement of the conservatorship.

Section 475.320

Section 475.320 contemplates expenses incurred during a conservatorship surviving as

claims against a decedent’s estate. Here, Walter Knipp died testate. If a protectee in a

conservatorship dies with no will, and has only funeral/burial expenses, estate taxes, obligations

incurred by the conservator, and expenses of administration of the conservatorship, a court “may”

order that no letters of administration be granted upon his estate and “may” order those expenses

paid out of the estate by the conservator. § 475.320.1. Where there is a will or “protectee dies

leaving debts, other than those payable by the conservator under subsection 1 hereof for which

his estate would be liable in an action” … “letters testamentary shall be granted on the estate of

the deceased protectee[.]” § 475.320.2 (Emphasis added). Those subsection 1 debts of the

protectee include “obligations of the protectee incurred by the conservator, as well as expenses of

administration” of the conservatorship. § 475.320.1. The legislature’s reference to a protectee

12
“leaving debts, other than those payable by the conservator under subsection 1” suggests our

legislature considers administrative expenses of the conservatorship to be “debts” of the decedent.

Where there is a will, such as in Walter Knipp’s case, there is no provision that the

conservator pay those subsection 1 debts; the only statutory requirement is that letters testamentary

be granted on the estate of the deceased protectee. Although contracting for funeral and burial

expenses is allowed with court approval when a conservator’s authority terminates upon the death

of the protectee (if no person other than the estate of the ward or protectee is liable for those

expenses),8 there is no requirement the conservator must pay that contracted debt at final

settlement. Funeral expenses are expressly allowed as claims against a decedent’s estate. §

472.010(3).

Where there is no will and no other debt, the conservator still may only pay funeral/burial

expenses, estate taxes, obligations incurred by the conservator, and expenses of administration of

the conservatorship upon order of the court. § 475.320.1. This rule deviates from a conservator’s

general power, within certain parameters, to settle, compromise, and pay claims against the

protectee or estate without court approval. § 475.130.5,6. Significantly, Section 475.320 mandates

that “[i]n such case the conservator is subject in all respects and to the same extent to the liabilities

of an administrator and liability on the conservator’s bond continues and applies to the complete

administration of the estate of the deceased protectee, including settlements as required by section

473.540.” Moreover, after a protectee dies the default for administration of the estate is with a

personal administrator and not a conservator.

8
§ 475.083.1(5).

13
 Section 475.290 et al.

Pursuant to Section 475.290, conservators “shall make final settlement of their

conservatorship at a time fixed by the court, either by rule or otherwise, within ninety days after

termination of their authority, except for those cases where the court has ordered that no letters of

administration be granted under section 475.320.” The authority of the conservator terminates

immediately upon the death of the protectee, subject only to “such authority as may be necessary

to wind up his administration.” §§ 475.083.1(5), 475.083.3.9 The statutes do not define what

winding up of an administration entails; all conservators whose authority is terminated are to make

final settlement within ninety days, however, regardless of whether their authority ends because of

restored competency of the protectee, death of the protectee, resignation, or revocation. § 475.290.

Final settlement involves the conservator making “a just and true exhibit of the account between

himself or herself and the protectee,” filing the same with the court, and delivering a copy of the

exhibit to the protectee, succeeding conservator, or the executor/administrator of a decedent

protectee’s estate.10 Id.

Expenses of administration in the conservatorship “shall be paid from the property or

income of the estate.” § 475.125. “A person who in good faith either assists a conservator or deals

with him for value in any transaction other than those requiring a court order is protected as if the

conservator properly exercised the power.” § 475.134. A conservator is not individually liable on

a contract properly entered into in his capacity as conservator in the course of administration of

9
As noted above, with approval of the court, the conservator may also contract for the funeral and burial of
the deceased ward or protectee if there is no person other than the estate of the ward or protectee liable for funeral and
burial expenses.
10
The individual the exhibit is served upon necessarily depends on the reason for termination of the
conservator’s authority.

14
the estate unless he fails to reveal his representative capacity and identify the estate in the contract.

§ 475.132.1. “Any question of liability between the estate and the conservator individually may

be determined in a proceeding for accounting, surcharge, or indemnification or other appropriate

proceeding or action.” § 475.132.4.

The real or personal property of the protectee may be sold, mortgaged, pledged, leased or

exchanged by the conservator to pay, among other things, expenses and costs of administration. §

475.200. If, upon settlement of the conservator, it appears that the money on hand and anticipated

income of the estate is not sufficient for the payment of various things including claims against the

estate, the court may require a hearing to determine if property of the estate should be sold, etc. §

475.200.4. All claims against the estate, including “liabilities incurred by the conservator for the

benefit of the protectee or his estate” may be filed in the probate division of the circuit court. §

475.205. During the administration of the conservatorship, it is the conservator’s general duty to

“adjust, settle and pay all claims due or becoming due from the protectee so far as the protectee’s

estate and effects will extend[.]” § 475.130.5 (Emphasis added). An order allowing a claim has

the effect of a judgment. § 475.205. “Expenses of administration including fees of the guardian

and conservator and their attorneys” are recognized claims against the estate. § 475.211;

475.010(2).11

If a creditor does not file a claim after proper notice, the creditor “shall be barred from

participating in any disbursement ordered paid by the court from assets then on hand.” § 475.213.2

11
Under Section 475.265, an attorney may apply for compensation for services already performed in a
conservatorship at any time before final settlement. Respondents urge that, because compensation for services must
be applied for prior to final settlement, a judgment rendered on any claim is dispensed with in final settlement. Section
475.265 does not go so far.

15
(Emphasis added). The conservator is only obligated to pay claims filed against the estate “as far

as he has assets subject thereto.” § 475.213.1. In classifying claims against the estate of a

protectee, expenses of administration are prioritized above expenses for the reasonable support

and maintenance of the protectee, as well as “all other claims which are filed against the estate as

provided by law.” § 475.211. The conservator shall “at the termination of the conservatorship

deliver the assets of the protectee to the persons entitled thereto.” § 475.130.

In reviewing these statutes, we find no requirement that all debts and claims within the

conservatorship be paid in a final settlement; the only requirement is that an account be given as

to disbursements, etc. § 475.290; See also § 475.270 which requires compliance with § 473.543.

In a conservatorship payment of claims are made according to priority, and the court may direct

the conservator to “pay out assets available for payment” and may do so proportionally if the assets

are insufficient to satisfy a class. § 475.213. Settlements are made regularly, however, and there

is no indication that payments may not be ongoing when a claim is not fully satisfied. Under

Section 475.290, the conservator is to give the executor of a deceased protectee’s estate a copy of

the conservator’s final settlement account with advance notice prior to settlement. “Final

settlement” appears specific to each conservator and nothing within the statutes suggests that upon

final settlement of an individual conservator all outstanding claims within the conservatorship are

expunged.12

12
Notably, even in a final settlement of a decedent’s estate, claims are not expunged where assets of the
estate are discovered that could have paid those claims. Section 473.147.2 states:

If, after final settlement of an estate is had and the executor or administrator has been
discharged, unadministered assets of the estate are discovered, letters of administration of the goods
remaining unadministered, if there are unpaid allowed claims or if other good cause is shown, may
be granted to those to whom administration would have been granted if the original letters had not
been obtained. Any person to whom such letters are granted shall make his final settlement and be
discharged as soon as possible after letters are granted.

16
 Although notice of a final settlement is required to be given a succeeding conservator, the

protectee, or executor of a deceased protectee’s estate, there is no requirement for notice to

creditors. Id. After examining the accounts of the conservator, correcting all errors therein, the

court makes “final settlement with the conservator.” § 475.290. The court then orders “payment

of the amount found to be due, and the rendition of any effects, property, rights or credits belonging

to the protectee, to the protectee, or to the successor of the conservator, or to the personal

representative of the protectee[.]” § 475.300. The conservator may only be discharged after the

protectee, successor conservator, or personal representative acknowledge satisfaction of record in

the proper court of “having received all money and other estate found to be due to the estate of a

deceased protectee.” § 475.315.

Respondents suggest that an “estate” under a conservatorship is wholly separate from a

decedent’s “estate” and when debts of a conservatorship are unpaid after final settlement they

disappear. While the governance of an estate under a conservatorship and the governance of a

decedent’s estate serve unique purposes, the character of the “estate” never changes; the estate of

the protectee in a conservatorship and the estate of the protectee after death are the same. They

both consist of “the real and personal property of the decedent or ward, as from time to time

changed in form by sale, reinvestment or otherwise, and augmented by an accretions and additions

thereto and substitutions therefor, and diminished by any decreases and distributions therefrom.”

§ 472.010 (11) (Emphasis added). This definition of “estate” is found in the Probate Code’s general

provisions. Id.

Section 473.397 et al.

Section 473.397 divides claims in a decedent’s estate and statutory allowances into various

classes. These include: (1) Costs; (2) Expenses of administration; (3) Exempt property, family

17
and homestead allowances; (4) Funeral expenses; (5) Debts and taxes due the United States of

America; (6) Debts for medical assistance owed to the state of Missouri under section 473.398; (7)

Expenses of the last sickness, wages of servants, claims for medicine and medical attendance

during the last sickness, and the reasonable cost of a tombstone; (8) Debts and taxes due the state

of Missouri, any county, or any political subdivision of the state of Missouri; (9) Judgments

rendered against the decedent in his lifetime and judgments rendered upon attachments levied upon

property of decedent during his lifetime, and; (10) All other claims not barred by section 473.360.

Id. Where the decedent was under a conservatorship prior to death, the conservator may have

entered contracts for service on behalf of the protectee, and the protectee may have had expenses

related to a last sickness authorized by the conservator. Our legislature clearly understood these

to be “liabilities of the decedent” pursuant to the definition of “claims” in 472.010, allowable

against a decedent estate with no requirement that they be dispensed with in a conservatorship if

one existed.

Similarly, under Section 475.370, if the estate of any protectee is insufficient to pay his

debts, to maintain himself and family, or educate his children, his guardian or conservator may

apply to the county commission of the proper county, by petition, praying for an appropriation

from the county treasury. Pursuant to Section 473.398, if a decedent has been a participant of aid,

assistance, care, services, or has had money expended on his behalf by the department of health

and senior services, department of social services, department of mental health, or by a county

commission, the total amount paid “shall be a debt due” from the estate of the decedent.13 As such,

13
The purpose of Section 473.398 is to allow specified agencies to recover funds expended on behalf of a
deceased recipient. In re Estate of Graham, 59 S.W.3d 15, 22 (Mo. App. 2001). Our courts have held that such
agencies are “creditors” under Section 461.300, allowing them to bring a petition for accounting. See In re Estate of
Thomas, 743 S.W.2d 74 (Mo. banc 1988); In re Estate of Jones, 280 S.W.3d 647, (Mo. App. 2009); In re Estate of

18
a county expending funds on behalf of a protectee during a conservatorship has a statutory right to

recovery of that money in the deceased protectee’s estate, even though the conservatorship was

clearly insufficient to pay the same.

Case Law

Case law also supports that the judgment Appellant obtained during the conservatorship

did not dissolve with the closing of the conservatorship and remained an obligation of the

decedent’s estate.

In Capelli v. Bennett, 209 S.W.2d 109 (Mo. 1948), the probate court approved a contract

for sale of a protectee’s property and part of the purchase price was paid by buyers. The protectee

died shortly thereafter, however, and before the remainder of the purchase price had been paid and

the deed delivered, the executor of the estate repudiated the contract and brought suit against the

buyers for rent and possession. Id. at 110. Ultimately, our Supreme Court ruled that the approval

by the probate court of the sale of the real estate of the ward vested in the defendants an equitable

title to the real estate, although the purchase price had never reached the ward’s estate during his

lifetime. Id. at 112. Although Respondent contended that a guardian had no authority to bind

either the person or the estate of the ward by contract, our Supreme Court found that the guardian

Hayden, 258 S.W.3d 505 (Mo. App. 2008); In re Estate of Macormic, 244 S.W.3d 254 (Mo. App. 2008). Our Supreme
Court in Thomas declared a State’s claim for reimbursement from a decedent’s estate of medical payments made on
behalf of the decedent “a ‘claim’ of the sort contemplated in probate which falls within the scope of sec. 472.010(3),
RSMo 1986, defining ‘claims’ as ‘liabilities of the decedent which survive whether arising in contract, tort or
otherwise.’” 743 S.W.2d at 77. We determined in Jones that because a Section 461.300 petition for accounting was
a proceeding under Missouri’s probate code and the State qualified as a “creditor” under Section 461.300.10(1), the
State could utilize Section 461.300 to bring an action for accounting. 280 S.W.3d at 655. In 2018 our legislature
amended Section 473.397 to expressly include “debts for medical assistance owed to the state of Missouri under
section 473.398” in its prioritization of claims against the decedent’s estate.

19
could bind a ward’s estate by contract made pursuant to statute and under the orders and approval

of the probate court. Id.

Williams v. Vaughn, 253 S.W.2d 111 (Mo. 1952), discussed the doctrine of equitable lien.

The Court stated that the right to an equitable lien arises “when a party at the request of another

advances him money to be applied, and which is applied, to the discharge of a legal obligation of

that other but when, owing to the disability of the person to whom the money is advanced, no valid

contract is made for its repayment.” Id. at 115 (internal quotation marks and citations omitted).

The Court gave as an example when money is advanced to a minor to pay a debt incurred for

necessaries and no action at law under contract lies to recover of the minor for repayment of the

money, “yet as the money was loaned to discharge a debt for which the minor was liable at law

and it was used for that purpose a court of equity will charge a lien on the minor’s property to

repay the sum advanced.” Id. The Court found that parties who advanced or loaned money that

paid lawful claims against the ward’s estate (money was borrowed to pay ward’s necessities and

lender sought remuneration after ward’s death) “are equitably entitled to be subrogated to the rights

of the parties who had lawful claims against the ward’s estate to the extent that the monies

advanced or loaned by respondent’s paid such claims.” Id. at 115-116. Williams concluded:

‘If the guardian of an insane person may be sued in the circuit court for necessaries
furnished the ward during guardianship then we see no good reason why after the
death of the ward the administrator cannot be sued in the circuit court the same as
the guardian, as the guardian’s duties end ipso facto with the death of the ward and
the administrator then becomes the personal representative, and can be sued for the
obligations of the deceased.’

Id. at 116 (quoting Tock v. Tock, 120 S.W.2d 169, 172 (Mo. App. 1938).

In discussing potential challenges facing estates where a protectee under a conservatorship

dies, our Southern District quoted the following from a 1937 Arizona case:

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 When a person is under guardianship both of the estate and person and
subsequently dies, what portion of his estate is subject to disposal under the law
fixing priorities for the estates of decedents? Is it the gross assets in the hands of
the guardian at the time of death, or is it the net property left after the guardianship
has been properly closed? We are of the opinion that the logical answer is that the
estate of the decedent consists of whatever assets remain after the legal claims
arising by virtue of the guardianship have been properly satisfied. If this were not
true, there would be endless confusion created by contests between guardians on
the one hand and executors or administrators on the other. The guardian might have
created an indebtedness which, according to the law, was a proper and prior claim
against the estate of the incompetent, and yet, by the sudden death of his ward, such
claim might be utterly defeated by proceedings in the estate of the decedent. In the
absence of a statute expressly declaring so unjust a rule, we are of the opinion that
all debts legally incurred by the estate of an incompetent during the course of
guardianship are just as much liens upon such estate as are formal mortgages
thereon, and that the administrator takes the estate subject thereto.

Estate of Livingston, 627 S.W.2d 673, 679 n.2 (Mo. App. 1982) (quoting State v. Greenshaw, 50

Ariz. 436, 72 P.2d 950, 951 (1937)).14

We conclude that Appellant’s claim survived the closing of the conservatorship and

represents a “claim” pursuant to Section 472.010(3) recoverable in the decedent’s estate. Appellant

is, therefore, a “creditor” pursuant to Section 461.300 with authority to enforce an action for

accounting under that statute.

14
In Livingston, a claimant filed in a guardianship/conservatorship a “claim against estate” for personal
services rendered the ward prior to adjudication. 627 S.W.2d at 675. Judgment was entered on the claim by the
probate court and the guardian was allowed an appeal to the circuit court. Id. at 676. The ward thereafter died and
the executors of the decedent’s estate were substituted for the guardian. Id. The claimant, however, did not file a
claim in the decedent’s estate within the time frame authorized by statute. Id. Consequently, the circuit court found
the claim barred such that assets of the decedent’s estate could not be used to satisfy the judgment. Id. On appeal,
our Southern District found that substitution of the executors for the guardian was improper under Section 475.260,
however substitution was unnecessary to recover the claim because the cause of action had been reduced to final
judgment and “would not abate in absence of substitution.” Id. at 679-680. The court found the guardian continued
to have authority in winding up the guardianship to represent the estate in paying claims allowed by a final judgment.
Id. at 680. Livingston did not hold, however, that the claim was required to be dispensed with in the
guardianship/conservatorship and here, unlike Livingston, a timely claim was filed in the decedent estate.

21
 Waiver

The trial court concluded that Appellant’s failure to object to the final settlement in the

decedent’s guardianship and conservatorship estate constituted a waiver of its claim. The court’s

Judgment suggests that the terms of the conservator’s final settlement were such that Appellant

was on notice that its claim was being completely disposed of with the closing of the

conservatorship. We find no such notice.

All parties and the court were aware when the conservatorship closed that there was alleged

to be property owned by the decedent prior to death that could be used to pay estate debts. Pursuant

to Section 475.130, the conservator of the estate takes possession of all of the protectee’s property.

The conservator of the estate must make an inventory and appraisement of the estate of all the

property of the protectee which comes to the possession or knowledge of the conservator. §§

475.145, 473.233 (emphasis added). “The inventory shall include property as to which the

protectee is a joint tenant or tenant by the entirety[.]” §475.145.15 If, after making the first

inventory and appraisement, any other real or personal estate comes to the possession “or

knowledge” of the conservator, an additional inventory “shall” be filed. §§ 475.145, 473.240

(emphasis added). Subject to a conservator’s right to possession, “the title to all such estate, and

to the increment and proceeds thereof, is in the protectee and not the conservator.” § 475.130.2.

The conservator must protect, preserve and manage the estate, apply it as provided in the probate

code, perform all other duties required by law, and at the termination of the conservatorship, deliver

the assets of the protectee to the persons entitled thereto. § 475.130.1.

15
In 2018, our legislature added to Section 475.145: “The inventory shall also disclose any nonprobate
transferees designated to receive nonprobate transfers after the protectee’s death.”

22
 The law is clear that a conservator has no authority to act as administrator or executor of a

deceased protectee’s estate unless appointed to do so. “[T]he death of the protectee does not

convert the administration of the guardianship of the estate into an administration of a decedent’s

estate.” Summers v. Correll, 817 S.W.2d 553, 555 (Mo. App. 1991). Under Section 475.290,

conservators are to make final settlement of their conservatorship within ninety days of the

protectee’s death, with authority only to wind up their administration. Where, as here, assets of an

estate become known just prior to the death of a protectee, ninety days may not be sufficient for a

conservator to physically acquire those assets such that they might be physically delivered to the

personal representative upon closing the conservatorship.16 There is no requirement that such be

physically delivered to an executor, however, as the conservator may upon final settlement turn

over any “rights or credits belonging to the protectee.” § 475.300. Here, in the estate inventory

the conservator listed as “credits” assets belonging to the protectee prior to his death that were

alleged to be improperly withheld.17 The conservator also noted that “causes of action” were being

pursued in the decedent’s estate to secure possession of those assets. This was true.

We disagree that Appellant waived its pending claim within the decedent’s estate by

accepting partial payment in the final settlement of the conservator, and there is no indication in

the record that at the time of final settlement the court, or anyone else, considered Appellant’s

claim expunged. The terms of the final settlement were not adverse to Appellant. The conservator

only had authority to pay claims with assets then on hand and was required to promptly wind up

16
Further, it is unclear whether ongoing pursuit of the physical acquisition of estate assets would constitute
“winding up” of the conservator’s administration.
17
In a final settlement of a decedent estate, under Section 473.593, the court shall give “credit” to the
administrator for any debt charged in the inventory as due to the estate if from any cause it was impossible for the
executor or administrator to have collected the claim by the exercise of due diligence.

23
her administration. Responsibility for collection of additional assets belonging to the estate was

turned over to the executor; the court approved this settlement and the executor accepted the

settlement on these terms.

Notably, Respondents never appealed the final settlement which included the disputed

property as assets of the estate. Although Jon Knipp objected to the conservator’s inclusion of

those assets in the final settlement, he never sought to determine title under Section 475.160 when

the conservatorship was still open. (He also did not appeal the court’s Judgment dismissing his

objections for lack of standing.)18 Under Section 475.160, “[a]ny conservator, protectee, creditor

or other person, including a person interested in expectancy, reversion or otherwise who claims an

interest in property which is claimed to be an asset of the estate of a protectee or which is claimed

should be an asset of such an estate, may file a verified petition in any court having jurisdiction of

such estate seeking determination of the title and right of possession thereto.” Section 475.160

mirrors the discovery of assets procedure in decedent’s estates under Section 473.340 and the court

is to proceed on a Section 475.160 petition “in accordance with the provisions of section 473.340.”

“In a discovery of assets proceeding, the court’s role is to determine whether specific property has

18
In finding Jon Knipp had no standing, the court cited Taylor, 47 S.W.3d at 383, which cited Houston v.
Zaner, 683 S.W.2d 277 (Mo. App. 1984). Houston concluded that a party raising an objection to a final settlement in
a conservatorship proceeding had standing to object to the final settlement of the conservatorship because the objector
had an actual and justiciable property interest in the estate as the primary beneficiary of the deceased protectee’s will.
Id. at 282. Section 474.010(15) defines “interested persons” as “heirs, devisees, spouses, creditors or any others
having a property right or claim against the estate of a decedent being administered and includes children of a protectee
who may have a property right or claim against or an interest in the estate of a protectee.” Although the latter half of
the definition of “interested persons,” (which states that the meaning of “interested persons” may vary at different
stages and different parts of a proceeding and must be determined according to the particular purpose and matter
involved) had been interpreted to mean that heirs to a protectee’s estate had no standing to dispute issues regarding
the administration of a conservatorship because “no one is heir to the living,” Houston and Taylor concluded that an
heir to a deceased protectee did have standing. Id. Here, the court concluded that Jon Knipp had no standing to
challenge the final settlement because the sole “heir” to Walter Knipp’s estate under his will was Walter Knipp’s wife.
In spite of the settlement including as estate assets property Jon Knipp claimed to be his own, Jon Knipp did not appeal
the court’s Judgment.

24
been adversely withheld or claimed.” Ryan v. Spiegelhalter, 64 S.W.3d 302, 305 (Mo. banc 2002)

(emphasis added). Hence, the conservator’s claim to the disputed property as estate assets was

never challenged under Section 475.160 although four years elapsed between the time the property

was first included in the estate inventory and the conservatorship closed.19

“Every executor or administrator … shall take possession of all the personal property of

the decedent….” § 473.263. Because the disputed property was considered part of the estate

released to the executor by the conservator, the executor had a duty to take possession of that

property. Section 461.300 provides a means to recover money from that property that can pay

estate debts. If this disputed property consists of recoverable transfers, defined as “a nonprobate

transfer of a decedent’s property … and any other transfer of a decedent’s property … that was

subject to satisfaction of the decedent’s debts immediately prior to the decedent’s death,” Section

461.300 mandates that each recipient of such property “shall be liable” to account for a pro rata

share of the value of all such property received to the extent necessary to, among other things,

discharge estate claims remaining unpaid after application of the decedent’s estate.

At the time of the conservator’s final settlement, Appellant had filed a claim in the

decedent’s estate for recovery of the balance of the Judgment not paid during the conservatorship.

Appellant had also filed as a “qualified claimant” a petition for accounting to recover transfers that

might expunge that claim. At the time of the final settlement, no party disputed Appellant’s status

as a qualified claimant. As personal representative, Robin Choudhury had a duty to recover estate

19
Respondents also never filed a discovery of assets petition in the decedent’s estate as was suggested by the
court to be the proper recourse against inclusion of the assets in the estate inventory. We are inclined to believe the
proper recourse to prevent inclusion of the assets in the conservatorship inventory would have been to pursue discovery
of assets in the conservatorship. Nevertheless, a discovery of assets option may still be available in the decedent’s
estate, and not foreclosed by failure to file the same during the conservatorship. The conservator’s authority ended
upon Walter Knipp’s death and the disputed property was alleged to have been discovered by the conservator only
shortly before his death.

25
assets to pay estate claims. The final settlement evidences that Choudhury was essentially

allowing Appellant to pursue those assets for her via a petition for accounting in the decedent’s

estate, in part to expunge Appellant’s claim.

We find that Appellant was aggrieved by nothing within the final settlement of the

conservator requiring an objection or appeal.

Failure to State Cause of Action

Respondents contend that, even if Appellant can be considered a “qualified claimant” under

Section 461.300, the court did not err in granting judgment on the pleadings because Appellant

failed to state a cause of action by seeking equitable relief or a traditional “accounting” rather than

the sole remedy contemplated by Section 461.300, a money judgment. Respondents contend

Appellant improperly requested delivery of “all assets” necessary to discharge the claims of

creditors.

“Probate pleadings are not to be judged by the strict rules of pleadings applied to a petition

in the circuit court.” In re Estate of Clark, 83 S.W.3d 699, 702 (Mo. App. 2002). “The pleadings

need only give reasonable notice of the nature and extent of the claim.” Id. at 702-703. “The

general rule is that where a party seeks relief under a particular statute, he is not required to refer

to the statute or use its terms literally, but he is required to plead facts which bring his case within

the purview of the statute.” Id. at 705. Here, Appellant’s pleadings provided reasonable notice of

the nature and extent of Appellant’s Section 461.300 claim.

Further, Section 461.067 provides that unless the payment or transfer (of a nonprobate

transfer) can no longer be questioned because of adjudication, estoppel or limitations, a transferee

of money or property that was improperly distributed or paid, “is liable to return to the transferring

entity or deliver to the rightful transferees the money or property improperly received[.]” Pursuant

26
to Section 461.031, “[p]rior to the death of the owner, a beneficiary shall have no rights in the

property[.]” According to the final settlement of the conservator, the rightful transferee of at least

some of the disputed property, or portions thereof, was the estate itself as these were assets

belonging to Walter Knipp prior to his death that could have been used to pay claims within the

conservatorship. Consequently, although Section 461.300 provides only for a monetary judgment,

if this property was improperly distributed to begin with, then the transferees may very well be

liable for return of the property under Section 461.067 rather than a monetary share of the value

sufficient to discharge unpaid claims.

Conclusion

We conclude that the circuit court erred in granting Respondents’ motion for judgment on

the pleadings. The court’s Judgment is reversed, and the case remanded.

Anthony Rex Gabbert, Judge

All concur.

27