Paul Vaughn Johnson, Appellant, v. Laura Akers, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Paul Vaughn Johnson, Appellant, v. Laura Akers, Respondent. Case Number: 74086 Handdown Date: 04/06/1999 Appeal From: Circuit Court of St. Louis County, Hon. Louis M. Kohn Counsel for Appellant: Michael A. Campbell and Lynn K. White Counsel for Respondent: James P. Leonard Opinion Summary: Appellant Paul Vaughn Johnson appeals from an Order setting aside the grant of letters of administration appointing him personal representative for the Estate of William N. Akers (the "Decedent"). He argues that because this case does not involve the administration of assets as contemplated by the statute, the one year statute of limitations for filing letters of administration does not apply. AFFIRMED. Division Two holds: The Uniform Probate Code requires that an estate be opened within one year of death, and the Probate Code statute of limitations applies to the appointment of a personal representative. There is no statutory or case law exception to the time limitation of the Probate Code for cases in which assets will not be administered. Appellant did not file letters of administration seeking to be appointed as the personal representative of Decedent's estate within one year of the Decedent's death, therefore the probate court was correct in setting aside the letters of administration. Citation: Opinion Author: Richard T. Teitelman Opinion Vote: AFFIRMED. Crahan, J., concurs. J. Dowd, P.J., dissents in a separate opinion. Opinion:

Appellant Paul Vaughn Johnson appeals from an Order in favor of Respondent Laura Akers' Petition to Set Aside Letters of Administration.(FN1) Appellant argues that the court erred in setting aside the letters of administration appointing him personal representative of his deceased half brother, William Akers. We affirm. Background William Akers ("Decedent") was an adult male, age forty-six, employed as an ironworker by Ben Hur Construction Company at the time of his death on May 20, 1994. Appellant Paul Vaughn Johnson is the Decedent's half-brother. At the time of his death, the Decedent was survived by his wife, Respondent Laura Akers, and William James Steffen, his son with Maureen Steffen, who was born on March 20, 1990. In February of 1995, Winifred Steffen, Legal Guardian and Custodian of the minor William Steffen, filed a claim with the Division of Workers' Compensation seeking death benefits on his behalf. On March 18, 1997, in connection with William Steffen's claim for death benefits as a dependent and the natural child of the Decedent, Appellant filed his Petition for Letters of Administration seeking appointment as personal representative of the Decedent's estate in order to represent the Decedent in paternity proceedings. Decedent's estate had not previously been opened. The St. Louis County Circuit Court, Probate Division, granted Letters of Administration on April 29, 1997, appointing Appellant the Personal Representative of the Estate of William N. Akers. Appellant, as the Personal Representative of the Decedent's estate, subsequently filed a Petition for the Determination of the Father-Child Relationship to establish the paternity of William Steffen. On June 24, 1997, Respondent filed her Petition to Set Aside Letters of Administration in St. Louis County Court, Probate Division. A hearing on Respondent's Petition was held before Judge Louis Kohn. On February 11, 1998, Judge Kohn entered his Order setting aside the grant of letters of administration after finding the application for letters to be out of time in accordance with Section 473.070, RSMo 1994, because the application was not filed within one year of the Decedent's death. Discussion Appellant argues that Judge Kohn erred in setting aside the Letters of Administration because this case does not involve administration of assets as contemplated by the statutes so the one year statute of limitation does not apply. Missouri courts have held that the proper party defendant in an action to establish paternity when the putative father is deceased is the personal representative of the putative father's estate. See Travis v. Contico International, Inc., 928 S.W.2d 367, 370 (Mo.App. E.D. 1996); Richie By and Through Laususe v. Laususe, 950 S.W.2d 511, 514 (Mo.App.

E.D. 1997). A personal representative of an estate is appointed by the Probate Division of the Circuit Court in the applicable jurisdiction upon the filing of letters of administration with the Circuit Court. See Section 473.110. The Uniform Probate Code requires the opening of an estate to occur within one year of death, and the statute of limitations of the Probate Code applies to the appointment of a personal representative. Section 473.070 RSMo 1994; Kemp v. Balboa, 959 S.W.2d 116, 118 (Mo.App. E.D. 1997); Richie By and Through Laususe v. Laususe, 950 S.W.2d at 515. Neither the applicable statutes nor prior case law provides an exception to the statute of limitations in which a personal representative may be appointed for cases in which assets will not be administered. Section 473.070, RSMo 1994, in effect when the Decedent died, and Section 473.050, RSMo Cum. Supp. 1996, in effect when Appellant filed his application for letters of administration, provide only one express exception to the general rule that a probate division shall not issue administration for the estate of an intestate unless application is made within one year of the decedent's death. That exception, which involves "loss [sic] chance of recovery or survival" is found in Section 537.021 RSMo Cum. Supp. 1996 and does not apply to the case at bar.(FN2) Moreover, Section 210.828.3 of Missouri's Uniform Parentage Act provides that an action to determine the existence of the father and child relationship does not "extend the time within which a right of inheritance or a right to a succession may be asserted beyond the time provided by law relating to distribution and closing of decedents' estates or to the determination of heirship, or otherwise." Section 210.828, RSMo 1994. Therefore, the Uniform Parentage Act does not provide a means by which the time limits of the Uniform Probate Code may be extended in cases where a putative father has died.(FN3) Appellant did not file letters of administration seeking to be appointed as the personal representative of Decedent's estate within one year of Decedent's death, therefore the court was correct in setting aside the letters of administration. The Order of February 11, 1998 setting aside the grant of letters appointing personal representative, terminating proceeding and closing court files is affirmed. Footnotes: FN1. This Court has jurisdiction to hear an appeal of this Order. See Section 472.160, RSMo 1994; Kemp v. Balboa, 959 S.W.2d 116, 118 (Mo.App. E.D. 1997). FN2. The "loss [sic] chance of recovery or survival" exception is applicable in medical malpractice cases. Section 537.021, RSMo Cum Supp 1996; Wollen v. DePaul Health Center, 828 S.W.2d 681 (Mo. banc 1992); Kemp v. Balboa, 959 S.W.2d 116, 119 (Mo.App. E.D. 1997). FN3. We agree with Judge Kohn's suggestion that this is a matter that should be corrected by the legislature. If it is believed that the one year statute of limitations is too brief, the way to increase the limitations period, as was indicated

by the legislature's enactment of Section 537.021, RSMo 1994, is through amendment to the legislation, not by judicial fiat. Separate Opinion:

the circuit court setting aside its prior grant of letters of administration. I would not apply the Probate Code's limitation period when a personal representative is requested solely for the purpose of representing the interests of a deceased putative father in a paternity action. At the very least, a child's opportunity to learn the identity of his or her natural father should not be terminated during minority. I. Factual Background On May 20, 1994, William Akers ("Decedent") was killed during the course of his employment with Ben Hur Construction Co. Decedent was survived by Laura Akers, his wife and respondent herein, and by then four year old William James Steffen ("William"), who is allegedly Decedent's illegitimate minor child. In February 1995, William's legal guardian and custodian filed a claim for death benefits on William's behalf with the Division of Workers' Compensation ("Division"). On March 18, 1997, Paul Vaughn Johnson, Decedent's half-brother, filed a Petition for Letters of Administration with the Probate Division of the Circuit Court of St. Louis County. The petition requested the appointment of Johnson as the personal representative of Decedent's estate for the sole purpose of representing Decedent's interests in a paternity action. On April 29, 1997, the circuit court granted the petition and appointed Johnson as the personal representative of Decedent's estate. On June 2, 1997, in his capacity as personal representative, Johnson filed a Petition for the Determination of the Father-Child Relationship to establish William's paternity. The trial court presiding over the paternity action ultimately entered a judgment establishing that Decedent was William's natural father.(FN1) On June 24, 1997, Ms. Akers filed a Petition to Set Aside Letters of Administration in the Probate Division. On February 11, 1998, the court entered an order setting aside the grant of letters of administration on the ground that the Petition for Letters of Administration was not filed within one year of Decedent's death as required by section 473.070 RSMo 1994.(FN2) Johnson appeals from this ruling. II. Analysis The dispositive issue in this case, which appears to be one of first impression in Missouri, is whether the Probate Code's time limitation on the administration of an estate applies to the appointment of a personal representative for the sole purpose of representing a decedent's interests in a paternity action filed within the Uniform Parentage Act's statute of

limitations. The majority concludes the Probate Code's limitation period applies for two reasons. First, because the petition for letters of administration was not filed within one year of Decedent's death, the circuit court lacked jurisdiction to appoint a personal representative. Second, the circuit court lacked jurisdiction to appoint a personal representative because Decedent left no assets requiring administration. I find neither of these reasons persuasive. A.Probate Code's Time Limitation on Petitioning for Letters of Administration At the time of Decedent's death, section 473.070 provided as follows: "[N]o written will shall be admitted to probate and no administration granted unless application is made to the court for the same within one year from the death of decedent." In holding that this provision applies to the appointment of a personal representative in a paternity action, the majority misconstrues the purpose of the Probate Code's limitation period. The clear purpose of section 473.070 is to ensure that probate proceedings are concluded within a reasonable period of time and to prevent fraudulent or stale claims. To promote these purposes, the legislature prohibited administration of estates unless application for administration is made within one year of a decedent's death. According to Black's Law Dictionary, "administration of estates" constitutes [t]he management and settlement of the estate of an intestate decedent, or of a testator who has no executor, performed under the supervision of a court, by a person duly qualified and legally appointed, and usually involving: (1) the collection of the decedent's assets; (2) payment of debts and claims against the estate; (3) payment of estate taxes; and (4) distribution of the remainder of the estate among those entitled thereto. Black's Law Dictionary 44 (6th ed. 1990). Administration of an estate clearly involves the management of a decedent's assets. Here, no administration is required because (1) Decedent died without assets and (2) the Petition for Letters of Administration expressly limited the duties of the personal representative to representing Decedent's interests in the paternity action. Whether a paternity action may be filed after the putative father has died is determined by the Parentage Act. Section 210.826.3 RSMo 1994 provides as follows: An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 210.822 may be brought by the child, the mother or the person who has legal custody of the child, the division of child support enforcement, the personal representative or a parent of the mother if the mother has died, a man alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor. An action to determine the existence of the father and child relationship as to a child who has no presumed father may be brought within eighteen years of the child's birth, unless the action is brought by the child, in which case the action must be brought within twenty-one years of the child's birth. Sec. 210.828.1 RSMo 1994. Thus, the Parentage Act expressly

provides that the personal representative of a putative father's estate may bring a paternity action until the child's eighteenth birthday.(FN3) As noted by the majority, this Court has previously held that the personal representative of the decedent's estate is the proper party to substitute for a deceased putative father. See Richie By and Through Laususe v. Laususe, 950 S.W.2d 511, 513 (Mo.App. E.D.1997); Travis v. Contico Int'l, Inc., 928 S.W.2d 367, 370 (Mo.App. E.D.1996). The majority reasons that because the Probate Code requires a personal representative to be appointed within one year of a decedent's death, the same limitation period must apply even when a personal representative is requested to represent a deceased putative father in a paternity action. I disagree with this line of reasoning. Effectuating the clear purposes of the Probate Code and the Parentage Act would foreclose the result reached by the majority; however, assuming these provisions may somehow be viewed as inconsistent, this Court must attempt to harmonize them so as to give meaning to both statutes. State ex rel. Riordan v. Dierker, 956 S.W.2d 258, 260 (Mo. banc 1997). The simplest way to harmonize these provisions is the most obvious: only apply the Probate Code's limitation period to cases where administration of a decedent's estate is sought beyond the one-year limitation period and apply the Parentage Act statute of limitations in actions to determine the existence of the father and child relationship. This is a reasonable interpretation of legislative intent and furthers the purposes of both statutes. No estate will be subject to administration more than one year after a decedent's death, and no child's right to a determination of his or her paternity will be prematurely cut off. As evidence that the Probate Code's limitation period takes precedence over the Parentage Act, the majority relies on section 210.828.3. This reliance, however, is misplaced. The Parentage Act clearly provides that it does not "extend the time within which a right of inheritance or a right to a succession may be asserted beyond the time provided by law relating to distribution and closing of decedent's estates." This provision does not support, much less compel, the majority's decision to apply the Probate Code's limitation period to the appointment of a personal representative to represent the interests of a deceased putative father in a paternity action. Indeed, by stating that the right to determine a father and child relationship cannot extend the time within which a right of inheritance or a right to a succession may be brought, the Parentage Act recognizes that the declaration of paternity is separate from a right of inheritance or a right to a succession. Moreover, the right to recover death benefits under the Workers' Compensation Act is neither "a right of inheritance" nor "a right to a succession." With all due respect to the majority, this is not a problem crying out for a legislative solution. After all, it is this Court, not the legislature, that has determined that the proper party to substitute for a deceased putative father is the personal representative of the father's estate and that the Probate Code's limitation period applies exclusively to the

appointment of a personal representative in paternity actions. I believe a fair reading of the statutes compels a conclusion that the legislature intended for a child to have a right to a determination of paternity independent of any right of inheritance or right to a succession. However, in light of the majority's decision, I hope the legislature will restore the right of an illegitimate child to obtain a determination of paternity after the putative father's death. B.Requirement that Decedent Die with Assets The majority also implies that the appointment of a personal representative to represent the interests of a deceased putative father in a paternity action is limited to cases where the decedent dies with assets requiring administration. Accordingly, illegitimate children of decedents who die without assets will be denied the opportunity to establish their paternity; however, illegitimate children of decedents who leave assets could successfully petition for letters of administration and establish their paternity. This requirement is ill-advised because it creates a classification based upon wealth that is not rationally related to any legitimate governmental interest, and again highlights the error of applying the Probate Code in situations not involving the administration of estates. C.Workers' Compensation Act Provides Independent Relief Even though William is deprived of the opportunity of legally establishing his paternity, his entitlement to death benefits is not contingent on a prior determination of paternity. According to section 287.240 RSMo 1994, an employer shall pay a death benefit to the employee's total dependents. Section 287.240(4) provides that a "natural, posthumous, or adopted child . . ., whether legitimate or illegitimate" is conclusively presumed to be a total dependent. (emphasis added). The plain language of this section classifies illegitimate children as total dependents. Had the legislature intended that a prior determination of paternity was a necessary precursor to the recovery of death benefits, it could have eliminated illegitimate children from the class conclusively presumed to be totally dependent on the deceased employee. Here, William's guardian filed a timely claim for death benefits with the Division. If William establishes that he is Decedent's illegitimate child in the workers' compensation proceeding, he is entitled to recover a death benefit. Therefore, today's decision does not stand as a bar to William's recovery of death benefits. III. Conclusion For the reasons stated herein, I would reverse the trial court's order and remand with instructions to reinstate the prior order granting the petition for letters of administration. Footnotes: FN1.In a separate appeal currently before this Court, No. ED73584, Ms. Akers appeals the trial court's judgment on the ground that, inter alia, the trial court exceeded its jurisdiction in entering a decree of paternity because

letters of administration had been improperly granted. FN2.At the time of Johnson's application for letters of administration, the General Assembly had amended the Probate Code's limitation period. See Sec. 473.050 RSMo Cum.Supp.1996. The court found that the Petition for Letters of Administration was also barred by this section. FN3.Decedent's mother or father could also bring an action under the Parentage Act to establish William's paternity. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.