State ex rel. Armstrong, Teasdale, Schlafly & Davis v. Kohn

COVINGTON, Judge,

concurring in result.

I concur in the result of the principal opinion that the probate court exceeded its jurisdiction in the opening of the Corrigan estate. I do so for reasons different from those expressed in the principal opinion. In my view, even if there were an allegation that unadministered assets had been discovered, I do not believe that the property which is or may be alleged to be an “asset” in this case should be construed to be an asset under any circumstances for purposes of application of § 473.147.2, RSMo 1986.

Assets for the purposes of administration of a decedent’s estate are generally defined as property of any kind, whether real or personal, tangible or intangible, legal or equitable, which can be made available for the payment of debts. Mutual Life Ins. Co. of New York v. Farmers and Mechanics Nat’l Bank, 173 F. 390, 397 (C.C.S.D.Ohio 1909); State ex rel. Hills v. District Court, 118 Mont. 622, 169 P.2d 556, 558 (1946); Citizens Bank, Drumright v. Satcher, 521 P.2d 819, 821 (Okla.1974). This definition can be traced to Justice Story’s definition:

[A]ll personal property of the deceased, which is of a salable nature, and may be converted into ready money is deemed assets. But the word is not confined to such property, for all other property of the deceased which is chargeable with his debts and legacies, and is applicable to that purpose is, in a larger sense, assets.

Bragdon v. Smith, 136 Me. 474, 12 A.2d 665, 666 (1940) (quoting Story, Equity Jurisprudence, para. 531).

The “assets” to which the petitioners in the underlying case seek access, the rela-tors’ confidential papers, are neither of a salable nature nor are they property of any kind that can be made available for the payment of debts.

Section 473.147.2 can be read, however, to broaden the traditional definition of an asset as property available for the payment of debts in that “the goods remaining unad-ministered” may be administered not only if there are unpaid allowed claims, but also if “other good cause is shown.” § 473.-147.2. What may constitute “good cause” for the purposes of reopening an estate for administering the newly discovered assets or goods has.not been previously decided. Missouri commentators assume, however, that “other good cause” is distribution of the assets or goods to distributees having a right to the personal property or entitlement to the real property. 5A John Bor-rón, Jr. and Francis M. Hanna, Missouri Practice, Probate Law and Practice, § 1523, p. 732 (2d ed. 1990). Judge Borron and Professor Hanna’s assumption appears correct in that passing title to property to distributees of an estate and making payment of unpaid debts, claims or demands against the decedent or his estate are the very purposes of administration of an estate.

There are other forums in which the petitioners in the underlying case can seek or could have sought relief. As the principal *90opinion notes, the probate code is exclusive. It provides a limited forum for limited purposes. The probate code is replete with time limitations, presumably in the interests of accountability and finality. Section 473.147.2 permits the reopening of an estate for the narrow purposes of administering assets or goods discovered after an estate is closed if there are unpaid allowed claims or if there is need for passing title to distributees, nothing more. To expand § 473.147.2 in the manner in which petitioners in the underlying case seek to do is to broaden § 473.147.2 to a point where any conceivable property is an “asset” and any “cause” is “good.”

For the reasons above stated, I concur in the result of the principal opinion insofar as it holds that the probate court exceeded its jurisdiction.