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Factual Background:

In 1997, the decedent loaned his friend James Tambke $8,000.  Decedent died later that year.  No estate was opened, and no will was offered for probate within one year of his death.  Tambke made two partial payments to decedent’s heirs after the first year, $1,100 in 2002 and $1,000 in 2004.  In 2007, the heirs applied to the probate division of the Cole County Circuit Court for a judicial determination pursuant to RSMo. §473.663 that they were the decedent’s sole heirs at law and therefore the owners of the balance receivable for the loan to Tambke.  The probate division granted their petition and determined the extent of their respective interests in the loan.  Decedent’s heirs then demanded payment of the balance of the debt from Tambke.  When Tambke did not pay the balance, the heirs filed a petition seeking judgment against Tambke for the unpaid $5,900.  They alleged that he owed them the money pursuant to the determination of heirship.  Tambke filed a motion to dismiss on the basis that the decedent’s heirs do not have standing to bring the action because only a personal representative of the estate would have authority to do so and that the action is barred by the statute of limitations.

Held:

The Circuit Court of Cole County issued a judgment sustaining the motion to dismiss but did not state the reason for dismissal.

On Appeal:

Reversed and remanded.  A decedent’s judicially determined heirs have standing to bring an action to recover debts owed to the decedent, and partial payments of a debt to the heirs tolls the statute of limitations.

Rationale:

RSMo. §473.663.1 provides that “any person claiming an interest in [a decedent’s] property as heir or through an heir may file a petition . . . to determine the heirs of the decedent at the date of the decedent’s death and their respective interests or interests as heirs in the estate” if no administration was commenced on the decedent’s estate and no will was presented for probate within a year of death.  The statute was designed for instances in which there has been no estate administration, which means it operates to allow the resolution of pending property matters where there are heirs and there was no administration.  Though the statute refers to “property” without any distinction as to types of property, in view of its apparent purpose as a “mop up” provision, the word “property” should not be narrowly construed to exclude intangibles, such as choses of action.  If a person has been declared to have an ownership interest in a chose of action as an heir of the decedent, pursuant to RSMo. §473.663, then that declared owner should be entitled to pursue and recover it.

RSMo. §516.120.1 provides that the statute of limitations for actions upon obligations is five years.  However, generally, partial payment on a debt tolls the statute of limitations.  Even if such payments owed to a decedent are made to his heirs before they are judicially declared to be legal heirs, the payments still toll the statute.  Assumedly, the debtor makes payments to the persons to whom he understands payment is due and that he makes such payments as an implied promise to pay the balance.  The fact that the payments are made to the heirs before judicial determination of heirship and that the petition to recover the balance is brought after determination of heirship is of no consequence.  The decedent’s property interest devolves to the heirs at the time of death, even though the interest is not cognizable for litigation purposes until the determination of heirship.