Schwarz v. Stemme

GARY M. GAERTNER, Judge,

dissenting.

I respectfully dissent.

Section 473.340(4) (1986) mandates that a court “order the joinder of the personal representative if he is not named as a party.” See also Estate of Pilla, 735 S.W.2d 103, 104 (Mo.App., E.D.1987). Appellants in the case before us named as parties to the action the personal representatives of Walter Bloemker’s estate in their individual capacity. I believe this satisfied the requirements of the statute. For, RSMo § 473.340(4) (1986) does not state that personal representatives must be named in their representative capacity. This court is not permitted to add provisions to a statute under the guise of construction if they are not plainly written or necessarily implied. Wilkinson v. Brune, 682 S.W.2d 107, 111 (Mo.App., E.D.1984). “We are not to supply, insert or read words into a statute unless there is an omission plainly indicated and unless the statute is incongruous, unintelligible or leads to absurd results.” State v. Weinstein, 395 S.W.2d 525, 527 (Mo.App., E.D.1965). Nor does case law, as set forth in Pilla, require such a designation. Pilla merely reiterates the statute’s dictate that “the court [is] to order the joinder of the personal representative of the estate if he is not named as a party.” Id. at 104. And, although Pitta classified the personal representative as an indispensable party to an action to discover assets, Id. at 105, subsequent case law has not consistently followed that holding. See Simpson v. Shelker, 747 S.W.2d 259, 260 (Mo.App., E.D.1988). The majority opinion distinguishes Simpson’s holding that the personal representative was not an indispensable party under the facts presented in that case. The majority opinion states that the failure to join the personal representative in Simpson did not harm the estate; thus, Simpson differs from the present case. I disagree, as I cannot discern how the Bloemker estate was harmed by the failure to join the personal representatives in their representative capacity. It is true that Arland and Wesley Stemme, the per*690sonal representatives, were not asserting the interests of the estate. However, appellants’ position certainly put them in the role of vigorous advocates for the estate’s interests. Simpson requires that the “interests of the estate [be] fully protected.” Appellants’ advocacy fully protected the interests of the Bloemker estate. Finally, the majority refers to Matter of Estate of Mapes, 681 S.W.2d 476, 478 (Mo.App., W.D. 1984) for the proposition that one cannot fairly represent his own interest and at the same time represent those of another which are in conflict with his own. Id. at 479. In the present case, Arland and Wesley Stemme were not called upon to represent the estate’s interests. Instead, as stated previously, appellants took this position. Appellants freely chose to name the personal representatives of the Bloemker estate in their individual capacity. Now, because this court today reads into RSMo § 473.340(4) (1986) a requirement that appellants should have named the personal representatives in their representative capacity, appellants are given a “second bite at the apple” and the estate’s funds will most likely dissipate substantially due to the further litigation.