Section 1.5 Enlarging Concepts of Probate Business

• Library: Estate Administration 2014 Supp

E. (§1.5) Enlarging Concepts of Probate Business

In the progress of probate law in Missouri and in the changing concepts of what is encompassed in the meaning of the term “probate business,” the legislature, from time to time, adapted the powers and jurisdiction comprehended by that term to the exigencies of the changing time. In making these adaptations, the legislature did not enlarge the jurisdiction of probate courts. It prescribed the methods and devised the procedures by which these courts gave effect to the constitutional powers they possessed. The following are specific instances in which the legislature used this process of adaptation:

Discovery of assets. The use of this remedy originated in ancient chancery courts. It was early used in Missouri (Laws Mo. 1825, 100, § 22), but it was then a purely ex parte process designed solely as a summary means of discovery. In re Huffman’s Estate, 111 S.W. 848 (Mo. App. E.D. 1908). In 1845, the legislature evolved an effective procedure, unique in Missouri jurisprudence, by which it authorized the court to determine the rights in property and to call a jury to try the issues. RSMo 1845, ch. 3, art. II, § 11. By the process of further amendments (RSMo 1855, ch. 2, art. II, § 10; RSMo 1879, ch. 1, art. IV, §§ 75–79), the legislature broadened the scope of the remedy so that it is no longer simply a means of discovering assets but an effective method of expediting administration. See:

· In re Weingart’s Estate, 170 S.W.2d 972 (Mo. App. E.D. 1943)

· Lolordo v. Lacy, 88 S.W.2d 353 (Mo. 1935)

· Davis v. Johnson, 58 S.W.2d 746 (Mo. 1933)

· In re Trautmann’s Estate, 254 S.W. 286 (Mo. 1923)

· In re Clinton’s Estate, 123 S.W. 1 (Mo. 1909)

The remedy was enlarged by the 1955 Probate Code, §§ 473.340–473.357, RSMo Supp. 1955. Kearney Commercial Bank v. Deiter, 407 S.W.2d 575 (Mo. App. W.D. 1966); In re Myers’ Estate, 376 S.W.2d 219 (Mo. banc 1964). In 1973, § 473.340, RSMo 2000, was amended and §§ 473.343–473.357, RSMo, were repealed, effectuating a radical change in the concept of discovery proceedings. No longer was it proper to regard the discovery process as an ex parte summary means to determine title to personal property. Essentially, the 1973 amendment provided that any “person who claims an interest in property” had standing to file a petition to determine title to specified personal property. See § 473.340, RSMo 2000. The amendment mandated the joinder of the personal

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