State Ex Rel. Department of Social Services v. Bowling
743 S.W.2d 74
Mo.
1988
Check Treatment

*1 life, get er can on with his and so turning himself purpose ant had had a in, he have this get would announced two children can on with their evidence when arrested. Inasmuch this lives, think, having every instead objection, the State was received without years, they next have a day argument. to refer to it in was entitled inup peni- or a father locked brother tentiary. gentlemen, I Ladies and sub- I serious reservations about have only admissibility you that there is one verdict propositions broader as to mit II, VI of post-arrest silence as set out in Part as to and that is you can return Count opinion principal opinion. principal a verdict of death. particular convincing on facts of the arguments is The first of these obscene case, commenting I no but see occasion point reminding days us of the broadly more these circumstances. under place no an American Hitler. It has opinion narrowly drawn principal argument relieving about courtroom. The argument limiting possibility about the presence family of his the defendant’s killing engaging in of the defendant’s objection No was made little better. ap- penitentiary, in the so that it violence arguments, and the second either these killing in custo- plies only to cases in which response, I but was the of effective aggravating dy assigned as an circum- they may properly believe limitation, I spite stance. believe this sidered context. that the rule defendant’s arguments prosecutor’s I Because of the predict- future criminal conduct not be willing to affirm the death sen- am should here.1 oral tence, re- would remand the case for distinction, attempted the basis phase. penalty trial phase is im- penalty trial here, in a pacted jury is not sufficient. A

one-phase trial would have occasion un- future conduct

consider defendant’s guilty. less it him found prosecuting limit to

There should be a attempts jury.

attorneys’ to inflame the unduly has tolerant In the of the ESTATE OF Susie Court Matter THOMAS, arguments capital prosecutors’ other Deceased. respond- murder cases.2 Prosecutors have Missouri, By DEPART STATE of inflammatory ed with continued broad- SERVICES, MENT OF SOCIAL sides. I that there a time for believe Plaintiff-Appellant, control. My conclusion is fortified

examples present prosecu- in the case. The BOWLING, Representa Personal Wanda argued tor as follows: tive, Defendant-Respondent. I, lawful, you Why and as work- should No. 69242. community, work the citizens Missouri, just Supreme lives Calvert Court rest of our natural so penitentiary for can En Antwine live Banc. his life or at least rest of natural 20, 1988. Jan. years prison? until he’s served 50 He continued: sen- it much more humane to

And isn’t his broth- this man to death so that

tence Driscoll, (Mo. e.g., See 711 S.W.2d 512 Raspberry, 2. State v. 1. See State v. (Mo.1970); Roberts, 1986); Mobley, 709 S.W.2d 857 banc 172-73 (Mo. 1963); Tiedt, McDonald, 1986); State v. 357 Mo. (Mo. banc State v. Heinrich, 527-29 113-16 *2 Barry filed claim Circuit

Court, Division, seeking Probate reim- $1,923.16 pay- for medical bursement by ments made on behalf of the deceased Department of Social Services. The 473.398, premised on sec. RSMo claim was provides pertinent part which recipient upon the death of a of aid or of expended for monies have one whom Services, Department of Social paid “total amount shall a debt due the state ... provided by ... as [collectible] the Probate Code of Missouri.” personal representative refused the claim, pointing 473.360.1, to sec. RSMo amended in which bars claims not filed within six months from the publication first of notice of letters. Re- sponding, the State contended its claim fell exemption provision, within the statute’s relieving it from the six months limitation period. provision specifically exempts any taxing authority “claims of within the United States” which the State ar- gued the claim for a debt due the State, “taxing within enjoyed protection United States” it court, exemption. apparently The trial unimpressed contention, with that summar- ily denied the claim and after the was affirmed in Appeals, the Court of Webster, Gen., Atty. William L. William District, accepted Southern we transfer Cornwell, Gen., E. Atty. Asst. Jefferson though original and decide the cause as City, plaintiff appellant. Const, V, appeal. Mo. art. sec. 10. Crane, Wiley, Robert S. for defendant respondent. The sole issue is whether the State’s claim, concededly beyond the statu RENDLEN, Judge. tory period, six-month non-claim falls with provision exempting in the statute’s Missouri, Department claim from the statute’s narrow limitation (Department), appeals Social Services does, requirement. Holding that it we re dismissing trial court’s order its claim verse and remand. Bowling, personal repre- Wanda Thomas, sentative of the Estate of Susie 473.360.1, which re- payments reimbursement of medical prior flects a 1980 amendment to the stat- made on behalf of the decedent ute, provides pertinent part: Department through Family its Division of Except provided 1. in sec. 473.370 Services. [pertaining judgment creditors], opened The estate was March the estate of a deceased publication person, with the first expenses notice March other than costs September administration, 20. On six months and six ... claims of the United any taxing notice, author- days following publication States States, ity paid ... which paid (Emphasis added)

are not filed ... or within six period.” ... published months urges language She the sole testamentary or of letters administra- change claims” to “claims of from “tax tion, against the es- are forever barred taxing authority” was to allow tax claims tate. ... from other states and their sudivi- *3 Before the amend- beyond peri- sions to be ment, portion emphasized of sec- the above od. exempted tion “tax 473.360.1 claims the state Missouri subdivisions thereof.” and However, language of the when the 473.360.1, RSMo 1978. conveys unambiguous plain and a changes pertinent amendment effected meaning, definite courts have no “the inquiry: expanded to our It the class of foraging among such rules business [of eligible for the entities whose claims are impose to look for or another construction] “any by substituting exemption the words meaning.” DePoortere v. Commercial authority for taxing in the United States” Corporation, 500 S.W.2d Credit phrase the “the of Missouri and its state (Mo.App.1973). When statutes are “[with thereof”; and it broadened subdivisions the regard ambiguity, courts laws out should exempt from tax category claims claims meaning they say; what General taxing Now, authority. to any claim a have Assembly presumed to intended exempt tax Missouri claims directly exactly it and unam what states statute, from non-claim but the six months Id, Although biguously.” personal also, any taxing author- all claims representative’s contention not without ity the United States or literature1, support scholarly outside the State of Missouri. operate only to re canons of construction personal representative disputes this statutory ambiguity. solve a not to create plain language construction Haid, Mo. ex rel. Sei statute, phrase contending that the “claims taxing authority in any the United words sive term ative tention to exempt from predecessor section its the tax claims of such tion’s legislative intent She (adopted [1980] 1978) exempted Committee) urges “tax States” argues exempt property, family claims” argues scope. that we look following “taxing authority” amendment contains from the Missouri Bar qualify “claims,” to the revised this must subdivisions, Despite the State Missouri and filing requirement, the term and from its a legislature’s narrowing Committee Comment to Subsection 1 would beyond latent (sec. 473.360, the statute’s personal represent- taxing true exemption: indicates operation only ambiguity refers exempt only words for authorities. use of the Drafting exemp- expan- RSMo an in- us “The to a joy thority” text of the non-claim heretofore provides an principal entity tion, to include: auchority.” limitation water bills, tering hereafter municipality, school any As “taxing previously governmental, the state Missouri exemption. district, or other lawful is defined period judicially authorities]” empowered by law to exemption While this governing revenue and among sewer discussed, for considered The term district, in sec. managing, phrase has not been district, authority, whose claims of Missouri the six months class or sec. 473.360.1 of a road any “taxing au- levee issue intended adminis- district, “taxing county, now or can be taxa- dis- tax en- a trict, district, special drainage benefit homestead allowance taxes of district, district, actually special assessment type, other claims as well Hanna, exemption (legislature and Proce- intended restrict 1. See 4 Missouri Practice authorities). Manual, dure, (1986) sec. 473.360 tax claims of Probate Code district, 473.398 to recov- State of Missouri under park affected sections 141.210 paid to or on of decedent. er funds behalf to 141.810. definition, it is manifest Assisted following is a concise statement “taxing authority” in the context question. presenting that Susie the facts governmental possessing entity here is a 22, 1985, February a resident Thomas died levy taxes. County. Barry Her will was admitted By the 1980 amendment testamentary probate and letters were modify prior clear intent made 15, 1985. Notice of let- granted on March law, unambiguous statute’s terms and the duly published. publica- ters was given plain ordinary must be their tion on March 1985. The State Petroleum, meaning. Dunn v. Bemor Services, Missouri, Department of Social 187, 189 (Mo. 1987). As noted Services, Family filed its claim Division of above, paid sums sec. 473.398 describes the 27,1985. September That claim was *4 state, as a debt due the decedent collectible $1,932.16 of medical services on account probate pro code. provided in the provided by Department that the dece- “liability” if typically, the term not bate pursuant dent. claim was made to the The exclusively, pecuniary refers to a debt or a provisions The Divi- of 473.398. Probate Strumberg v. Mercantile obligation. the the sion claim was barred held Co., (Mo.1963); Trust 538 Judg- non-claim. 473.360.1. statute of Hartog Siegler, denying ment entered the claim. On Hence, we conclude the appeal the of the state contends press statutory liability to the State under applicable. not non-claim is expended for monies the sec. 473.398 statute of non-claim under basic Department of Social on behalf of Services sideration reads follows. “claim” the sort the deceased is a of con 473.370, Except provided in section templated probate which falls within the against a de- all claims the estate of scope of sec. defin ex- person, ceased other than costs and the “liabilities decedent ing “claims” as of administration, penses exempt proper- of contract, arising in which survive whether allowance, ty, family homestead allow- tort or otherwise ance, of the United States court is re- trial any taxing authority within claims of cause for further versed the remanded States, or to whether due proceedings. due, contingent, liqui- become absolute or unliquidated, or founded on con- dated BLACKMAR, ROBERTSON otherwise, are tract or which not HIGGINS, JJ., concur. division, paid by probate or are not J., DONNELLY, separate dissents in representative, six personal opinion filed. published months of testamentary or administra- letters BILLINGS, WELLIVER, J., C.J. and tion, es- forever barred separate dissent and concur tate, personal representative, DONNELLY, dissenting opinion of J. heirs, legatees of dece- devisees and DONNELLY, Judge, dissenting. contingent based on No claim dent. warranty made in connection with adopt respectfully I dissent and would of estate is barred under conveyance real by Judge opinion Almon H. written this section. the Southern District Maus Appeals: Court added). Be- (emphasis Section 473.360.1 1980, the Revision of fore the Probate Code question presents case not hereto- emphasized portion read of that section appellate by an court of this fore decided of Missouri “tax claims state question is: Does non- state. That 473.360, The Probate Code subdivisions thereof.” a claim of the claim bar “exempt property, indistinguishable also added held Revision claims and of statutes family homestead allowance.” “[t]he expedite is to settlement nonclaim parties have filed excellent briefs. public estates interest of welfare and They cite cases which consider statutes for the benefit those interested terms bar “all claims” and contain estates. We think the state itself should exceptions. The cases are divid rule for the be held same same or not upon of whether Estate, supra, reason.” State v. Moore’s such a statute bars the claim of a state or 821-822. Other found at cases have holding such subdivisions. cases a claim for is not barred taxes be generally claims are not so barred are contract, Reith v. cause founded on proposition upon based that a statute Mountrail, supra, or was ex of limitations does not run the sov cepted representative the personal ereign state. See State Board Trustees pay being a claim could same without (1960); Boyer, 52 Del. 159 A.2d 793 Randall, made. P.2d Will, Bogert’s P.2d In re 64 N.M. (Colo.1968). topic Department Public Annot., an annotation. Nonclaim Statute— O’Brien, 475, 292 200 Tenn. Welfare Government, 34 A.L.R.2d Claim (1956). the con S.W.2d 733 The cases to (1954). The cases are also collected in rely primarily upon trary one both Estate, supra, State v. Crocker’s De principles establish the intent of Anderson, partment Public Welfare that such be so 377 Mass. N.E.2d *5 Estate, v. Ala. barred. State Crocker’s 38 question presents Section 473.360.1 306, (1955). App. 83 So.2d 261 of the status of of the state a principle overriding pur The first presented by context different than that gener pose of the non-claim “The statute. of considered the statutes non-claim principle that the immune from al state is cited cases. Those statutes were terms consequences lapse of of time any express applicable to all claims without general concerned is where limitations are exception. The did con- Missouri statute specific derogation of not to extended express exception tax claims an of of tain expedite statutory requirements adopted to pro- It now the state and subdivisions. of the settlement estates.” express “claims exception an vides Dockham, 80, 774, 775 108 N.H. 227 A.2d taxing authority within United Estate, Moore’s (1967). Also see State v. appropriate It is to first States.” consider ex rel. State (Fla.1963); 153 819 So.2d if it applicability of 473.360.1 § Reed, Hosp. v. Mem. Cent. State Griffin no tained Bower, (Okl.1972); State v. 493 P.2d 815 doctrine recognized Missouri has (Wyo.1901). 362 P.2d 814 against of limitations did not run statutes principle second a distinction be is “There no doubt but that the state. can be ordinary statutes of limitations tween limitation common law statutes of did at of non-claim. cases hold statutes “These apply to the state. This actions merely withholding the rem that instead of expressed by maxim concept was ‘No ordinary in the case of statute edy, (Nullum an tem runs the Crown’ time limitation, operates a statute of non-claim regi). Annotations 101 pus occurrit Am.St. Powell, the claim or the debt.” State v. destroy County v. 144; to St. Charles Rep. Estate, supra, 637.” 525, 83 So.2d at 263. Crocker’s Mo. 66 Am.Dec. 22 320, 311, Goldfarb, Dalton, 160 Conn. Also see 307, Mo. 312 353 Estate, Asking’s (1971); In re legislature (1944). A.2d 818 did the is (1958); In re 259, enacting 250 Iowa N.W.2d 587 the non-claim statute Dockham, supra; Reith v. doctrine Estate for that the Probate Code intend Mountrail, This court deter 104 N.W.2d to that statute. statutory it did That intent estab (N.D.1960). In the mines that not. absence following. claim of for taxes has lished exception, the a state

7« definition, statutory and the “purposes provide of the code are to words, a speedy administering meaning method for a dece of the common Summerlin, estate, States v. dent’s to establish time authority. which claims forever barred 84 L.Ed. 1283 310 U.S. 60 S.Ct. estate, administrator, executor (1940) holds it is the that because sover- distributees, juris to broaden the eign, a non-tax claim the United States probate accomplish diction of courts to said by a state non-claim statute. not barred Hawkinsan, purposes.” North 324 S.W. exception excludes “claims” of the (Mo.1959). 2d de It has been term must include non- United States which non-claim has clared the “the attrib taxing authority tax claims. “Claims” utes, consequences of characteristics and Further, meaning. must bear the same general of limitation and should be statutes instant non-tax claim falls within statu- Hawkinson, so enforced.” North v. su 472.010(3). tory of “claims” in definition (Storckman, P.J., separate opin pra, at Therefore, meaning the state concludes Nonetheless, ion). the non-claim statute clear, no exception is ambi- to be a different nature. has been held no for a guity and basis construction A has exclusion. ex to waive the of that statute. bar However, That is well stated. Daues, rel. Dean v. 321 Mo. 14 S.W. “uncertainty has been observed Bank v. Bar 2d 990 Skidmore meaning may of a statute arise from tram, (Mo.App.1940); 142 S.W.2d 657 interpretation giving the fact that a literal Gooldy Lavender, Mo.App. lead words would unreason pertinent S.W.2d 681 “It able, unjust, impracticable, or absurd con statutes, here to that non-claim even note sequences compel as to a conviction act, under our former were held to be they could not have been intended jurisdictional.” mandatory and effect legislature.” 73 Am.Jur.2d Statutes Organ, Clarke (1974). The court finds that observation clearly has Further, case. the mean applicable concerning pressed its intent un of the exclusion made less than pre statutes "The of limitation. limitation *6 ambiguous language fixing in by the used scribed in sections 516.010 516.370 shall entity an qualifications in brought to actions the name argument exclusion. It is a reasonable benefit, state, this or for its the same exemption language limiting that the by private parties.” manner as to actions “taxing authority" it carries with a limi 516.360. It would be anomalous to § existing by to claims reason of that tation general clude claims of the state from the i.e., tax claims. Cf. Matter qualification, language of the non-claim statute. Nay, Estate (Ind.App. 489 N.E.2d Finally, applicability general of the ambig 1986). scope The is the exclusion language of the non-claim statute is estab- determining is applicability its it uous. exception. by general lished If that appropriate look to rules of construction. language applicable, is not provide need to an The rule is to determine the The fundamental state, legislature. state’s intent of Sermchief sovereign, by gener- 1983). is Gonzales, (Mo. not bound banc 660 S.W.2d language of the non-claim is al statute subsidiary rules that have been enunci- The language of the non- valid. The determining guidance in that intent ated applicable to of the claim claims statute many. rules determinative of are Those being so, this state. That the resolution of hereafter stat- case are those upon dependent case is the construction and discussed. express exception. made, tracing The should be endeavor legislation subject, history of on ques- The contention the claim in state’s uniform and consistent supported to ascertain the exception tion falls within state, legislature, or to discover following argument. purpose of the Probate Code Revision of 1980. The policy with how the draft of that revision contained comments respect matter has been Drafting of The Missouri Bar Committee. changed or modified from time to time. proposed revision of 473.360 was words, determining In other the mean- following accompanied by the comment. statute, particular resort of a “The amendment to Subsection 1 would policy legis- of the had the established filing requirement, exempt from the claims by general course of lature as disclosed family exempt property, legislation. taxes of homestead allowance Spra State ex rel. Jackson type, actually as all other claims well (Mo. 1975); dling, banc paid by within pur 82 C.J.S. Statutes § period.” Missouri Bar Pro- pose of non-claim has been of the statute (emphasis Deskbook bate Code CLE pur history noted. The of that added). purpose of the amendment to legis pose policy of the and the established explained. 473.360.1 has been succinctly sagaciously lature has been enlarge 473.360 is amended to summarized. filing exemption respect to the with of the nonclaim statute any ‘foreign of claims to include promote set to terminate claims authority’ as as the State of Mis- well estates, public a matter of tlement subdivisions thereof. souri Bierman, interest. necessary provision particularly (Mo.App.1966). The 346[3] Missouri where the estates of Western (patterned enacted in 1955 probated Kansas residents are numerous 135) was after the Model Probate Code § problem in Missouri. The arises far-reaching for considerably more than taxes. nection with state income mer nonclaim statutes. Clarke Or Borron, Proposed Revisions Comments (Mo. gan, banc 673[1] III, J. of Mo. Bar of Probate Code—Part 1959). contingent required It 1975). (July claims, omitted the as well as absolute legisla It has held that when infants, prisoners saving provision for the Model Penal ture enacts a section of mind, and de persons of unsound placed adopt[s] interpretation Code “it proce mandatory, fined a non-waivable commentary by the drafters thereon in the orderly processing of all for the dure Anderson, model act.” against an estate. It accompanying the revi the comment (Mo. clear 1, 3 Orphant Orphan, great accorded sion of 473.360.1 is (footnote omitted). App.1981) determining weight the intent falling To the extent of the *7 John Deere Co. DeWitt legislature. Jeff policy of the exclusion the established Co., Auction (Mo.App. Those claims had legislature is defeated. thing of one mention “[T]he claims of Missouri and limited to tax implies the exclusion of another.” Brooks illogical It is to find the its subdivisions. (Mo. Pool-Leffler, to further thwart legislature intended mentioning “taxes of App.1982). By excluding claims but policy by tax implied the exclusion of type” the drafters all states and their all claims of taxing authorities. For non-tax claims of a construction would subdivisions. Such holds that reasons stated this court excep- the maxim that run counter to also claims do not fall such non-tax strictly construed and tions are to be exception 473.360.1. resolved in favor of doubts should be is affirmed. the trial court general provision and not the Bastow, City Nevada v. importance is that A of decisive factor present form was a 473.360 in its