Brannan v. Perry

978 S.W.2d 28, 1998 Mo. App. LEXIS 1713
CourtMissouri Court of Appeals
DecidedSeptember 29, 1998
DocketNo. 21718
StatusPublished
Cited by1 cases

This text of 978 S.W.2d 28 (Brannan v. Perry) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brannan v. Perry, 978 S.W.2d 28, 1998 Mo. App. LEXIS 1713 (Mo. Ct. App. 1998).

Opinion

GARRISON, Presiding Judge.

Shirley Mae Perry (“Decedent”) died intestate in September 1994. At the time of her death, she was married to Paul A. Perry (“Husband”) who was | appointed personal representative of her estate. J. Collin Bran-nan (“Collin”), a son of Decedent by a former marriage, filed an action to remove Husband as personal representative; to require an accounting based on allegations that Husband had consented to the payment of claims from estate assets for joint secured obli[30]*30gations of he and Decedent; and seeking reimbursement for his attorney’s fees. Husband sought an allowance of exempt property. The trial court denied the request that Husband be removed as personal representative; entered a judgment against Husband in favor of the estate for expenses totaling $11,-533.19; denied Collin’s claim for attorney’s fees; and entered a judgment concerning the exempt property as well as the ownership of other items of personal property. Collin appeals.

Rule 73.01(c)1 provides the scope of review in this judge tried ease. Accordingly, the judgment of the trial court will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Collin’s first point on appeal relates to his claim for an accounting in which he contested Husband’s consent, as personal representative, to the payment of claims filed against Decedent’s estate by the Stone County National Bank (“Bank”). The claims were for payment of three loans. One of those loans is not at issue here. The two loans that are in issue are described below.

Loan No. 1 was evidenced by a note for $10,000, signed by both Decedent and Husband, and secured by the assignment of a life insurance policy on Husband’s life, including its cash surrender value. The policy was owned by Husband and had a cash surrender value of approximately $11,240. The proceeds of this loan were apparently used to purchase inventory for an antiques, collectibles, and gift business operated by Decedent and Husband, as well as to repair the building in which it was conducted. The balance of this loan was $10,978.37.

Loan No. 2 was evidenced by an unsecured note for $1500. The note was signed by Husband and guaranteed by Decedent pursuant to a separate instrument. According to Husband, the proceeds of this loan were used “to buy inventory and operating expenses, travel expenses, ... whatever kind of business expense we needed it for.” The loan balance was $1585.89.

Bank filed a claim against Decedent’s estate for the payment of Loans No. 1 and 2. Husband, as personal representative, consented to the claim and made payments in the amounts indicated above from estate assets. In Count II of his suit, Collin sought an accounting concerning all payments made from estate assets, and an order requiring Husband to present evidence of the fair market value of any collateral securing the bank loans. He alleged that no assets had been inventoried in the estate which were security under any of the loans; that Husband wrongfully paid the loans; that Husband had paid personal debts from the estate assets; that Decedent and Husband were jointly and severally hable on the notes; and that the estate is entitled to contribution for Husband’s proportionate part of the debts.

The trial court found, among other things, that Decedent and Husband were partners in the antique business; that they borrowed money to finance that business, using the proceeds to pay both business and personal expenses; and that Husband’s inventory filed in the estate made no reference to the business or its assets. It concluded that Husband was entitled to have the estate pay only one-half of Loans No. 1 and 2.

Collin’s first point relied on is:

The trial court erred in ruling that the estate is entitled to contribution from [Husband] for only half of the amount outstanding on two business loans payable to the Stone County Bank, rather than contribution for the full amount outstanding on those loans, because it is inequitable to require the estate to pay the debt, in that upon Decedent’s death Husband became the sole owner of the business assets, the value of which equaled or exceeded the amount of the debt, and also received his life insurance policy back free of the lien of the loan, and hence the estate received no corresponding benefit of the assets in consideration of its payment.

[31]*31The trial court relied on In Re Estate of Wray, 842 S.W.2d 211 (Mo.App. E.D.1992), in reaching its conclusion that Husband was entitled to have the estate pay one-half of the loans. Wray involved a claim by a widow against her husband’s estate, by which she sought reimbursement for payments on notes and a credit card debt. The trial court allowed the claim, but was reversed by the appellate court. The appellate court noted § 473.290.2 It also noted that the decedent and his widow were jointly and severally liable on the debts, that the property securing the indebtedness became the widow’s property after decedent’s death, and that the property was not subject to administration in his estate. The court held that “one who is jointly and severally liable is not permitted under § 473.290 to assert a claim for the indebtedness against the decedent’s estate.” Id. at 214. It also held, however, that a joint and several obligor who pays an indebtedness is entitled to contribution from other comakers and ordinarily would be entitled to contribution for one-half of the payment made on the note. Id. The court concluded that the widow received the property securing the indebtedness, and that she was entitled to contribution “for one-half of any amount by which her payments on the notes exceeded the fair market value of the tenancy by entirety property received by [her] and given as security for the indebtedness.” Id.

On this appeal, Collin contends that the trial court misapplied Wray, and that the estate should not be responsible for any of the notes because the security, which became Husband’s property, had a value greater than the balance owing on the notes. Husband, on the other hand, contends that the trial court reached a correct result. He argues that Loan No. 1 was secured by his life insurance policy, which was wholly owned by him; that the loan proceeds were shared by he and Decedent; and that while $5,000 to $5,500 of the proceeds went to improve the building in which he and Decedent operated their business, the building was owned by Collin. Because of these considerations, he argues that the fair market value of the security for Loan No. 1 is unrelated to the debt. He also argues that there was no evidence that any of the inventory purchased with the loan’s proceeds remained at Decedent’s death. With regal’d to Loan No. 2, he argues that it was unsecured, and that there was no evidence that he retained any asset purchased with its proceeds.

The result in Wray was reached by applying principles of contribution and recognizing that, except to the extent that the surviving joint obligor received the property securing the debt, there should be contribution for one-half of the obligation from the deceased maker. 842 S.W.2d at 214.

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Bluebook (online)
978 S.W.2d 28, 1998 Mo. App. LEXIS 1713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brannan-v-perry-moctapp-1998.