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08/19/93 MATTER ESTATE MONTA RUTH WOODRUM TERRY

August 19, 1993

IN THE MATTER OF THE ESTATE OF MONTA RUTH WOODRUM; TERRY WEYRAUCH, PLAINTIFF-APPELLANT
v.
RONALD WAYNE WOODRUM AND WESTERN SURETY COMPANY, DEFENDANTS-RESPONDENTS



APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY. Honorable Patricia Scott, Judge

Parrish, Crow, Shrum

The opinion of the court was delivered by: Parrish

This is an appeal from an order dismissing a petition for discovery of assets filed in a decedent's estate. The trial court found that the petition for discovery of assets failed to state a claim upon which relief could be granted against the persons it named as respondents. This court affirms in part, reverses in part and remands.

Monta Ruth Woodrum is survived by Ronald W. Woodrum, *fn1 her husband, and three children from a previous marriage, one of whom, Terry Weyrauch, is appellant in this case. Before her death, Mrs. Woodrum was incapacitated and disabled. Mr. Woodrum had served as conservator and guardian for Monta Ruth Woodrum. He was appointed guardian and conservator by the probate division of the Circuit Court of Pulaski County, Missouri. However, the court revoked his appointment by order dated April 2, 1985, "because of . . . failure to discharge his official duties, failing to answer citation and attachment to make settlement, and failing to pay necessary bills to maintain the said Monta Ruth Woodrum." Terry Weyrauch was appointed "successor guardian" and conservator May 7, 1985.

Mrs. Woodrum died October 1, 1991. Letters of Administration of her estate were granted November 26, 1991, by the probate division of the Circuit Court of Laclede County, Missouri. Mr. Woodrum was appointed administrator.

After Mrs. Woodrum's death, appellant filed a final settlement in the conservatorship proceeding in the probate division of the Circuit Court of Pulaski County. The final settlement was approved and appellant was discharged as guardian and conservator. Property that appellant held as conservator was transferred to the decedent's estate.

Following the transfer of property to the decedent's estate, appellant filed a petition for discovery of assets. The petition named Ronald Wayne Woodrum and Western Surety Company as respondents. Mr. Woodrum and Western Surety Company filed separate motions to dismiss for failure to state claims for which relief could be granted and for failure to state causes of action against them. Western Surety Company's motion further alleged that the claim was "barred by the Statute of Limitations, RSMo. Section 516.120." *fn2 The trial court granted both motions to dismiss. The trial court further found, in separate orders granting the motions, that there was no just reason for delay of entry of judgment with respect to the petition for discovery of assets and that the dismissal was "a final judgment within the meaning of Rule 74.01(b) of the Missouri Rules of Civil Procedure."

Appellant contends the trial court erred in granting the motions to dismiss the petition for discovery of assets because the petition set forth all the allegations required by § 473.340 and therefore stated an actionable claim. Appellant further contends that, as to the motion of Western Surety Company, the claim is not "on its face" subject to dismissal "for being barred by the statute of limitations in section 516.120 RSMO."

The adequacy of pleadings in a probate proceeding brought pursuant to § 473.340 was addressed in Estate of McCormack v. McCormack, 676 S.W.2d 928 (Mo.App. 1984).

Probate pleadings are not to be Judged by the strict rules of pleadings applied to a petition in the circuit court. If the pleadings give reasonable notice of the nature and extent of the claim strict rules of pleadings applied to a petition in the circuit court are not required. See Jensen v. Estate of McCall, 426 S.W.2d 52, 55 (Mo.1968). . . . Further, "the trial court's ruling on a motion to dismiss for failure to state a claim must be construed liberally and favorably to plaintiffs, giving them the benefit of all inferences fairly deducible from the facts stated therein (citation omitted). The facts alleged in the petition should be assumed to be true (citation omitted). The dismissal will be upheld only if plaintiff could not recover on any theory pleaded (citation omitted)." Gaines v. Monsanto Company, 655 S.W.2d 568, 570 (Mo.App.1983).

Id. at 930.

The petition for discovery of assets included allegations about property that Mr. Woodrum possessed while he was Mrs. Woodrum's conservator. Paragraph 9 of the petition stated:

That the said Ronald Woodrum has unlawfully, without consideration, obtained possession of said personal property of the decedent Monta Ruth Woodrum and now has the said property which he is adversely withholding and claiming as his own and not the property of Monta Ruth Woodrum.

In re Estate of Goldenberg, 601 S.W.2d 637 (Mo.App. 1980), was an action for discovery of assets in a decedent's estate. The petition in Goldenberg alleged there were certificates of deposit that the decedent owned at the time of his death that were not included in his estate. The petition also alleged that the decedent "had a savings account which he withdrew shortly prior to his death." Id. at 639. The court explained that a pleading had to "plead the existence of an asset at the time of death to be cognizable under the statutory cause of action." Id. The allegation that the decedent had certificates of deposit at the time of his death ...


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