Schwarz v. Stemme

GRIMM, Presiding Judge. This is a suit wherein appellants, devi-sees under the will of Walter R.H. Bloem688 ker, brought suit for discovery of assets, pursuant to § 473.340, RSMo 1986, against Arland and Wesley Stemme. Devisees appeal from the trial court’s order granting the Stemmes’ motion for a directed verdict. We reverse and remand. Although devisees’ briefs state five points relied on, the resolution of one point disposes of the appeal. That point is whether the trial court erred in not joining the co-personal representatives of the estate as a party, and in not appointing an administrator ad litem during the pendency of this litigation. Reviewing the evidence in the light most favorable to devisees, it discloses that in 1976, Walter Bloemker added Arland,* his niece by marriage, to his checking account “so that [she] could assist him, if he became ill, in paying bills, signing checks, so forth.” In 1983, when Walter moved into a retirement community, he authorized Ar-land and her husband to have access to his apartment in case he became ill. Walter entered a hospital on November 1,1983 with pneumonia; later, he was diagnosed as having cancer. On November 30, Walter, while in the hospital, gave Arland a power of attorney over his assets at County Bank, where he had his checking account. On December 13, while still in the hospital, Walter sent Arland to St. Louis Federal Savings and Loan Association to have her name added to his savings account. This was done for her convenience so that she “could assist him in paying his medical and other bills.” On January 10, 1984, Arland drove Walter to St. Louis Federal Savings and Loan Association where Walter cashed his $20,-000.00 certificate of deposit. Walter put $15,000.00 of the funds into a certificate of deposit with Arland. This, too, was done, according to Arland, so she “would be able to pay his bills and assist in handling whatever emergency might arise.” The remaining $5,000.00 was deposited into Walter’s savings account, to which Arland’s name had been added. As to each of these accounts, the Stemmes contend that a joint account with right of survivorship was created. Edward Bloemker, another nephew, testified that in the early 1970’s, Walter told him that “all the funds and everything, was to go into the estate” and be divided equally among his nieces and nephews. On January 14, 1984, Walter, according to Edward, gave him a list of his accounts, including the checking account and the certificate of deposit. He then told Edward “if anything ever happened to him that — to make sure these go into the estate.” Arland acknowledged that the accounts to which her name had been added were not gifts to her. She also told three heirs, after Walter’s death, that “maybe [the money] should have been put into the estate.” Walter died March 18, 1984; his bills totaled less than $900.00. The dispositive issue is whether the trial court erred in not joining the co-personal representatives of the estate as a party, and in not appointing an administrator ad litem during the pendency of this litigation. A personal representative of the estate is an indispensable party in discovery of assets actions brought pursuant to § 473.340, RSMo 1986. In Re Estate of Pilla, 735 S.W.2d 103, 105 (Mo.App.E.D.1987). In Pilla, we said that the “estate is, by statute, an indispensable party to the statutory proceeding to discover assets. The statute requires the court to order the joinder of the personal representative of the estate if he is not named as a party.” Id. at 104; § 473.340(4), RSMo 1986. Arland and Wesley Stemme were named as parties to this action. However, they were named as parties only in their individual capacity. The Stemmes, as co-personal representatives of the estate, were not named as parties in their representative capacity. The Estate of Walter Bloemker was not named as a party. Thus, there was a failure to join an indispensable party to this action. The Stemmes argue that this point was not presented to, or decided by, the trial court, and therefore, is not preserved error. In Pilla, however, we held that the [689] failure to join an indispensable party is a jurisdictional failure which may be raised at any stage of the proceedings, even on appeal. Id. at 105. At oral argument, the Stemmes argued that Simpson v. Shelker, 747 S.W.2d 259 (Mo.App.E.D.1988) was applicable. We disagree. However, even if Simpson was applicable, the facts in this case are clearly distinguishable. Here, Walter’s estate did not receive the contested assets; in Simpson the estate did. In Simpson, the failure to join the personal representative did not harm the estate; here the estate was affected to its detriment. Further, we find that the trial court erred in not appointing an administrator ad litem for the estate during the pendency of this litigation. Here, the devisees brought suit on behalf of Walter’s estate against the Stemmes, who were also serving as co-personal representatives of that estate. As stated in Matter of Estate of Mapes, 681 S.W.2d 476, 478 (Mo.App.W.D.1984), “it is contrary to general experience that one is able to fairly represent his own interest and at the same time represent those of another which are in conflict with his own.” Id. at 479, quoting Matter of Estate of Stickler, 551 S.W.2d 944, 949 (Mo.App.S.D.1977), citing Davis v. Roberts, 206 Mo.App. 125, 226 S.W. 662, 664 (1920). The Stemmes’ position was entirely in conflict with the position of Walter’s estate. The Stemmes are trying to retain funds, while the estate would be benefitted if it is determined that the funds belong to the estate. Consequently, the Stemmes could not represent the estate. Thus, an administrator ad litem should have been appointed for the estate in this litigation. The judgment of the trial court is reversed. The matter is remanded to the trial court with directions to appoint an administrator ad litem to represent the estate during this litigation. The administrator ad litem shall be joined as a party to this action. KAROHL, J., concurs. GARY M. GAERTNER, J., dissents in separate opinion. Footnotes [*] We refer to individuals by their first name for ease of reading, and not out of disrespect.