Smith v. Hauger
| Decision Date | 14 June 1899 |
| Citation | 51 S.W. 1052,150 Mo. 437 |
| Parties | Smith et al., Appellants, v. Hauger |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. -- Hon. W. S. Herndon, Judge.
Affirmed.
Turney & Goodrich for appellants.
(1) If this was a contest between William H. Hauger and the defendant the judgment of the circuit court must be reversed unless the probate court lost jurisdiction by the final settlement, its approval and the discharge of the executrix because: First. All the parties interested in the estate of William Hauger, deceased, among them the defendant, had personal notice of all the proceedings which culminated in the sale of the land, its approval by the probate court and the conveyance to the plaintiffs; and if any of the orders and judgments of the court were irregular or not warranted by the evidence, they or one of them, should have appealed. Second. This suit is collateral to the judgments and orders of the probate court and unless these are void the defense in this suit must fail. They are not void if the court had jurisdiction to enter any judgment or order in the case. Sherwood v. Baker, 105 Mo. 472; Hamer v Cook, 118 Mo. 476. (2) The probate court had jurisdiction to order the payment of the legacy notwithstanding the final settlement, its approval and the discharge of the executrix. Nelson v. Barnett, 123 Mo. 564. The verbal agreement, mentioned in the petition of Wm. H. Hauger, was made as alleged in the petition by the defendants, that is, by all the parties having an interest in the estate. That it could be enforced against the executrix is another assumption not justified by anything in the case and is in the face of the judgment of the probate court. Hendrickson v. Railroad, 34 Mo. 188. (3) The final settlement was a final judgment only as to the matters included in it and it was not necessary to allege or prove that the settlement was made under a "misapprehension of fact." Such an allegation would have been necessary if reference had been made to the legacy, or its payment had been alleged in the settlement; but not otherwise. The probate court in granting the relief asked for in the petition was not necessarily exercising the powers of a court of equity. Perpetual Ins. Co. v. Cohm, 9 Mo. 421; Fahy v. Gordon, 133 Mo. 414. But the claim made in the petition was a money demand against the estate of William Hauger, deceased, and even if of equitable cognizance, the probate court had jurisdiction. Hoffman v. Hoffman, 126 Mo. 486; Hammons v. Renfrow, 84 Mo. 332. (4) The defendant is estopped to deny plaintiff's title. He had personal notice of the petition of William H. Hauger, of the application of the administrator to sell land for the payment of this legacy, of the sale of plaintiffs, of the confirmation of the sale by the probate court, of the execution and delivery of the deed to the plaintiffs, and at no time interposed an objection. The money paid by plaintiffs for the land sued for satisfies a legacy to which his interest in the land was subject. Rice v. Burns, 49 Mo. 231; Austin v. Loring, 63 Mo. 19. And it makes no difference even if the proceedings under which the sale occurred were void for want of jurisdiction. Austin v Loring, 63 Mo. 19.
Wm Henry for respondent.
(1) A final settlement of an executor or administrator is a final judgment of the probate court and occupies the position of a final judgment of a court of general jurisdiction, and must stand until reversed on appeal or writ of error, or set aside in a court of equity on the allegation of fraud. Sheetz v. Kirtley, 62 Mo. 417; 2 Woerner's Am. Law of Adm., 1130; State ex rel. v. Gray, 106 Mo. 533; Miller v. Major, 67 Mo. 248; Garner v. Tucker, 61 Mo. 431; Lewis v. Williams, 55 Mo. 200; Nelson v. Barnett, 123 Mo. 565; Baldwin v. Davidson, 139 Mo. 125. (2) There is no authority to sell lands to pay debts and legacies after final settlement, unless the final settlement be first set aside and the administration re-opened by a proper proceeding. Titterington v. Hoker, 58 Mo. 593; R. S. 1889, sec. 145; Garner v. Tucker, 61 Mo. 431; Wilkerson v. Allen, 67 Mo. 509. (3) Such court may lose jurisdiction once acquired, after which it can make no further valid order or judgment, and this rule applies after a final judgment in a case. Lavit v. Russells, 138 Mo. 483; 1 Black on Judgs., sec. 306; Freeman on Judgs., sec. 121.
Ejectment to recover twenty acres of land in Clinton county. The petition is in the usual form and the answer is a general denial. The facts are these: In December, 1884, William Hauger died testate, seized of certain lands, those here involved included, and certain personal property. He devised the personal property to his wife, Christina, absolutely, and gave her a life estate, without power of disposal, in the real property, and the remainder in the real estate he bequeathed to his two sons, Andrew Dickson Hauger (the defendant) and Jonathan Hauger in fee simple absolute, in equal parts. He appointed his wife executrix, without bond. Then he directed that after the debts were paid his wife should pay to his children "in the order named each of the following specific legacies, to William H. Hauger, one hundred and fifty dollars, Amanda Myers one dollar, Luranna Adaline Smith one dollar, Nancy A. M. Hauger one dollar, Isaac Leonidas Hauger one dollar, and to Aaron Lewis Hauger one dollar."
The executrix administered the estate, and, after proper notice, made final settlement on the 3d of February, 1894, on which it appeared that there was a balance due the estate of $ 121.68, and the court finding that all the debts, costs and expenses had been fully paid, ordered the said balance to be paid to the widow as the legatee of the personal property, and the 16th of February, 1894, entered final judgment discharging the executrix.
On the 15th of February, 1895, William H. Hauger, one of the specific legatees, presented a petition to the probate court of Clinton county, in which he represented to that court that the executrix had paid all the debts of the estate but had not executed the will, in that she had not paid him the specific legacy of one hundred and fifty dollars, bequeathed to him by his father, and further alleging: "That on the day of , 1894, the said Christina Hauger made an alleged final settlement of her accounts as such executrix, this legatee interposing no objection because a verbal agreement for the payment of said legacy had been entered into between plaintiff and defendants" (the petition was entitled William H. Hauger, plaintiff, v. Christina Hauger, Andrew D. Hauger and Jonathan Hauger, defendants), which defendants had refused to carry out, and asking the court "to disregard said settlement so far as the same is held to be a final settlement of said estate and that the said executrix be required to execute said will specifically by paying plaintiff the said legacy of one hundred and fifty dollars with interest on said sum at the rate of 6 per cent per annum and for such purpose to sell any part of said real estate devised to defendants as aforesaid and for other relief." The persons named as defendants were served by the sheriff on December 6th, 1894, with a copy of the petition and a notice from the person named as the plaintiff and signed by his attorney, that he would present the petition to the probate court of Clinton county at its February term to begin on the second Monday in February, 1895.
It does not appear from anything in the record in this case whether the so-called defendants appeared in the probate court as so required or not, but on the 15th of February, 1895, that court entered an order reciting the filing of the petition and stating that it had been proved to the satisfaction of the court that notice of the application had been given "to the above named defendants," and that, "the court being satisfied" (it does not state that any proofs were adduced or evidence heard -- just "satisfied") "that the settlement as made by the executrix as and for a final settlement was made by her and acquiesced in by all the parties hereto under a misapprehension of fact" (it is not stated what that fact was which the parties misapprehended), the court finds that the said William H. Hauger under and...
To continue reading
Request your trial