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08/17/93 JOHN E. TUCHSCHMIDT v. THOMAS C.

August 17, 1993

JOHN E. TUCHSCHMIDT, PLAINTIFF-RESPONDENT
v.
THOMAS C. TUCHSCHMIDT AND NORMA B. TUCHSCHMIDT, DEFENDANTS-APPELLANTS



Appeal from the Circuit Court of the County of St. Louis. Probate Division. Honorable Louis M. Kohn.

James A. Pudlowski, Judge, William H. Crandall, Jr., Presiding Judge, and Stanley A. Grimm, Judge, Concur.

The opinion of the court was delivered by: Pudlowski

Appellants, Norma Tuchschmidt and her son Thomas Tuchschmidt, appeal from a probate court order revoking their independent letters testamentary and removing them as personal representatives of the estate of John A. Tuchschmidt, decedent.

Appellants claim that their actions as personal representatives did not constitute substantial evidence or grounds to justify revocation of letters testamentary and removal of personal representatives under § 473.833, or under § 473.140 of the Mo. Probate Code, RSMo 1986. We disagree, and we affirm the probate court order.

I. Facts

On Nov. 1, 1990, decedent died testate. The Probate Division of the St. Louis County Circuit Court ordered decedent's will entered to probate and granted independent letters testamentary to appellants, who were designated in the will as joint personal representatives. As required, appellants posted a surety bond in the amount of $475,000.00, and engaged legal counsel to assist them in the administration of the estate.

Appellants filed, on Jan. 30, 1991, a flawed "Inventory & Appraisement" which listed the total value of the estate at $457, 411.78. The Inventory & Appraisement included two shares of stock in N.Carson Co., a closely held family corporation valued at $353,970.00. On the Inventory & Appraisement, appellants improperly listed three acres of Illinois real property as an underlying asset of N.Carson Co., and deemed the value of the property to be "zero" pending a subsequent appraisal. Evidence revealed, however, that the property was, in fact, owned by appellant, Norma Tuchschmidt, not N.Carson Co., and that the property had been cited by the Illinois Environmental Protection Agency for hazardous waste violations and potential penalties of up to $150,000.00, plus $10,000.00 for each succeeding day of violation. Because appellants improperly listed the property as an asset of the estate, they also improperly charged the estate with a $175.00 fee for an appraisal of the Illinois property. The Inventory and Appraisement also failed to take account of the dividends and interest earned on the estate assets.

Appellants awarded themselves each $11,535.86 as compensation for serving as independent personal representatives. The probate court found these fees to be "unreasonable and excessive," and reduced the fees substantially. Appellants have not challenged the probate court's reduction of their compensation.

On Oct. 7, 1991, respondent John E. Tuchschmidt, (appellants' son and brother, respectively), filed a pro se petition to revoke appellants' letters testamentary and to remove appellants as personal representatives of the estate. Respondent proceeded pro se at both the probate hearing and on appeal.

The probate court conducted a hearing on July 16, 1992, regarding respondent's petition. In its final judgment, the probate court surcharged appellants for the difference between the unreasonable fees they paid themselves and the reasonable fees they should have been paid, and for the $175.00 appraisal fee on the Illinois property. In addition, the probate court revoked appellants' independent letters testamentary and removed them as personal representatives. A successor personal representative was appointed and the estate was converted from an independent to a supervised administration.

II. Analysis

In our review of the probate court's decision, we are limited by the standard set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976) and Rule 73.01.

The decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is "against the weight of the evidence" with caution and with a firm belief that the decree or judgment is wrong.

Murphy, 536 S.W.2d at 32. Due regard should also be given to the opportunity of the trial court to have Judged the ...


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