Recovering Loans for the Estate

October 9, 2014 § Leave a comment

Thomas Kennedy, Sr., during his lifetime wrote twenty checks payable to his son, Timothy. The checks, ranging from $1,000 to $40,000 totaled in the aggregate $180,900. Timothy did not dispute that the checks constituted loans to him from his father.

Thomas, Sr., died, and Thomas, Jr., became executor of his father’s estate. A year and a half after opening the estate, Thomas filed a final account and petition to close the estate. In his prayer for relief, he asked that Timothy be required to repay the amounts loaned to him, or that his distributive share be decreased by that amount.

Timothy raised three defenses: (1) that filing the pleading in the estate action was not sufficient to toll the statute of limitations; (2) that the executor should have filed a collection action in circuit or county court; and (3) that collection of some or all of the loans was barred by the statute of limitations (SOL).

The chancellor found that the checks were, indeed, loans, and that, since they had no specific due dates, the general 3-year SOL applied, running from the date of each check, and that, therefore, some of the loans were barred from recovery. He calculated that Timothy owed $91,700, and that he could either repay the estate or have his share reduced by that amount. The chancellor did not buy Timothy’s argument about a separate action in a different court. Timothy appealed.

In Kennedy v. Estate of Kennedy, decided September 30, 2014, the COA affirmed. Here are the takeaways from this case:

  • Although Mississippi law is less than clear as to whether loans to a legatee should be treated differently than loans by the decedent to others, the COA held that they should be treated the same, and that the SOL does apply. The SOL is not interrupted by the death of the decedent. Judge Maxwell’s reasoning and authority on this point is so sound that it’s hard to imagine that the MSSC would reach a different conclusion, despite the fact that there is some old authority to the contrary. You might want to watch this case for cert if you do a lot of estate work.
  • The COA agreed with the chancellor that the SOL began to run on each transaction on the date of the check. The chancellor had analogized the checks to demand notes, which become due and payable from the date of execution, with no demand being necessary.
  • The executor was not required to file a separate collection action in circuit or county court to reduce the claim(s) to judgment. Since Timothy was an heir, his waiver of process in the estate matter made him amenable to the claims of the estate against him. The COA cited an 1870 case that said when ” … distributees are debtors of the estate there is no reason why their indebtedness should not be treated in the light of a set-off against their distributive share.” Judge Maxwell also cited one of the maxims of equity in support of his rationale. Hear, hear.

If you are representing an executor in an estate which is owed debts, keep in mind that the SOL is ticking away every day, and that your dilatoriness could cost the estate some money that you might have to find a way to repay. In my opinion, if your executor is not successful in collecting those debts from non-distributees, it would be better practice to get chancery authority to sue to collect them in circuit or county court, and to get a judgment. If the debtors are distributes, make sure you get process on them promptly in the estate action on a pleading to collect, so as to stop the SOL from running.

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