Lile v. Kincaid

Decision Date04 December 1911
PartiesLILE v. KINCAID et al.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Ray County; Francis H. Trimble, Judge.

Action by William H. Lile against James Kincaid and others. From a judgment for defendants, plaintiff appeals. Affirmed.

M. G. Roberts and Lavelock & Kirkpatrick, for appellant. F. P. Divelbiss and J. L. Farris, Jr., for respondents.

BROADDUS, P. J.

The facts set forth in the second amended petition are, in short, about as follows: That Thos. B. Kincaid of Ray county died in November, 1891, leaving a widow and minor children surviving him. He owned certain real estate at the time of his death, a part of which he occupied as a homestead. M. C. Hill was appointed his administrator, and duly qualified and acted as such. There being but little personal property, it was turned over to his widow. Certain claims were proved up against his estate, among which was that of plaintiff. The real estate that was not a part of the homestead was sold by the administrator to pay debts. The proceeds of the sale were not sufficient to pay the claims so proved; consequently a part of them remained unpaid, among which was that of plaintiff. The widow and children resided upon the homestead until the death of the widow and the majority of the youngest child in 1909.

It is alleged that, the probate judge, the administrator, and creditors being doubtful of the authority of the administrator to subject the homestead to the payment of debts and to convey title, it was deemed advisable by the administrator and the probate court and to the best interest of the minor children to defer the sale of the homestead until the youngest attained legal majority, and thereupon it was determined that said administration should be suspended and a sale of the homestead be postponed until the youngest of the children should reach majority; that the administrator gave due notice that he would make settlement of the estate at the January term of the court for 1894; that he did file his settlement which was duly approved and made an order entered of record upon petition filed finally discharging the administrator from his trust, but by inadvertence further ordered and adjudged, viz., "that all the allowed claims have been paid in full, and that the balance on final settlement has been distributed in conformity to the order of this court, and it further appearing that said administrator has fully accounted for all assets that have come into his hands belonging to said estate since his appointment, and that said estate has been fully administered, it is therefore ordered and adjudged that said administrator and his bondsmen be and the same are hereby discharged;" that afterwards the said administrator died; that afterwards, on the 10th day of April, 1909, on petition of plaintiff setting forth that the said judgment of January, 1894, was entered inadvertently, etc., the court made an entry of record setting it aside, and appointed James H. Kincaid administrator de bonis non, who duly qualified and petitioned the court to sell said homestead; that the court duly made an order directing him to sell said homestead to pay unpaid claims; that he did make sale of the same and reported his action to the court; that thereafter, on the 24th of January, 1910, the court at the instigation of the defendants revoked the appointment of said Kincaid as administrator on the ground that administration had been closed by said judgment of January 8, 1894. The petition alleges that all the minors are now of age, and that the homestead rights in said land have been determined, and that the order of the probate court made on April 25, 1910, setting aside the order appointing said Kincaid administrator de bonis non, was without authority and void in law, and that plaintiff did not know that said illegal judgment of January 8, 1894, had been rendered until shortly before the appointment of said Kincaid as administrator aforesaid. The relief asked is that the judgment of the probate court rendered on the 8th of January, 1894, and that of April 25, 1910, be canceled, and that the administration of the decedent's estate be declared open, and for all such further relief as may be right and proper. The defendants moved to strike out paragraphs 10, 11, 12, 13, and 14 of the second amended petition, which was sustained by the court. Afterwards defendants filed a demurrer to the petition as it then stood, which the court also sustained. Plaintiff refusing to further plead, judgment was rendered against him, from which he appealed.

Many grounds were set forth in said motion to strike out said paragraphs and also in the demurrer. Those most vital we will discuss, but first, however, we will consider plaintiff's view of the case.

He insists that the first entry of record January 8, 1894, was not a final judgment or intended as such, as all the debts...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT