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Kennedy v. Estate of Kennedy

Court of Appeals of Mississippi

September 30, 2014

TIMOTHY KENNEDY, APPELLANT
v.
ESTATE OF THOMAS M. KENNEDY, DECEASED, THOMAS M. KENNEDY, JR., EXECUTOR, APPELLEE

Page 1034

COURT FROM WHICH APPEALED: HARRISON COUNTY CHANCERY COURT. DATE OF JUDGMENT: 07/15/2013. TRIAL JUDGE: HON. SANFORD R. STECKLE. TRIAL COURT DISPOSITION: ORDERED HEIR TO REPAY THE ESTATE $91,700 IN OUTSTANDING DEBT BEFORE RECEIVING HIS ONE-SIXTH DISTRIBUTIVE SHARE.

FOR APPELLANT: ROBERT THOMAS SCHWARTZ, JEFFREY WARD BERTUCCI.

FOR APPELLEE: CHARLIENE ROEMER.

BEFORE GRIFFIS, P.J., MAXWELL AND FAIR, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.

OPINION

Page 1035

NATURE OF THE CASE: CIVIL - WILLS, TRUSTS, AND ESTATES

MAXWELL, J.

[¶1] The executor of an estate has the right to recover any debt owed to the testator before he died. But the executor must do so within the applicable statute of limitations, which is not tolled by the testator's death. Here, Thomas Kennedy Jr., as executor of his father Thomas Kennedy Sr.'s estate, sought repayment of a series of loans Thomas Sr. had made to his son Timothy Kennedy, Thomas Jr.'s brother. But by the time Thomas Jr. asserted the estate's claim to repayment in the motion for first and final accounting and to close the estate, the statute of limitations had run on half the loans. So the chancellor held that Timothy had to repay $91,700--the amount of the loans not barred by the statute of limitations--before he received his distributive share of the estate.

[¶2] On appeal, Timothy argues he should not have to repay anything. As he sees it, his brother's motion in the estate matter did not stop the limitations period. Instead, Timothy insists the only way Thomas Jr. could have recovered the debt--and consequently stopped the running of the limitations period--was to file a separate legal action.

[¶3] We disagree. Timothy was no mere debtor but rather an heir to the estate, properly brought into the estate matter through a waiver of service of process. And his outstanding debt to the estate directly related to the amount of his distributive share. So the estate matter was a proper place for Thomas Jr. to assert the estate's repayment claim. Because Thomas Jr. lodged this claim before the limitations period ran on half the loans, we agree with the chancellor that the estate could recover $91,700 in debt from Timothy before distributing him his share. Therefore, we affirm.

Background Facts and Procedural History

[¶4] Thomas Sr.'s will directed his estate be divided into six equal parts--one part for each of his six children. The will also named his son Thomas Jr. as executor. In carrying out this role, Thomas Jr. noted his brother Timothy had not repaid a series of loans from his father. And Thomas Jr. argued his father's wishes to equally divide the estate could not be honored if Timothy refused to repay these loans.

[¶5] A year and a half after Thomas Sr.'s estate had been opened, Thomas Jr. filed a motion for first and final accounting and to close the estate. In this motion, Thomas Jr. requested that Timothy, before receiving his share, either repay the estate the $180,900 in outstanding debt or have his share of the estate reduced by this amount.[1] Timothy responded that the twenty checks their father had written him--ranging from $1,000 to $40,000--were not loans. But even if they ...


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