Ansley v. Richardson

• Decision Date: 27 May 1902
• Citation: 68 S.W. 609,95 Mo.App. 332
• Parties: JOSEPH ANSLEY, Respondent, v. WILLIAM C. RICHARDSON, Appellant
• Court: Missouri Court of Appeals

68 S.W. 609

95 Mo.App. 332

JOSEPH ANSLEY, Respondent, v. WILLIAM C. RICHARDSON, Appellant

Court of Appeals of Missouri, St. Louis

May 27, 1902

Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

Henderson & Gentry for appellant.

(1) This is an equity case and the issue presented in it will be reviewed by this court as chancellors. In re Estate of Meeker, 45 Mo.App. 194; Finley v. Schlueter, 54 Mo.App. 458; Benne v. Schnecko, 100 Mo. 258; McElroy v. Maxwell, 101 Mo. 308. (2) Annual settlements of an administrator are prima facie evidence in his favor, and the burden is cast upon the exceptors to prove that charges therein allowed are improper. State ex rel v. Strickland's Admr., 80 Mo.App. 405; Meyers v Meyers, 98 Mo. 269; Ladd v. Stephens, 147 Mo 342; 2 Woerner, sec. 504. (3) The administrator is entitled to attorney fees in defending his final settlement where only a part of the exceptions are sustained. In re Estate of Meeker, 45 Mo.App. 197; Jacobs v. Jacobs, 99 Mo. 436.

Lubke & Muench for respondent.

(1) The action of the trial court in refusing to allow attorney's fees to the public administrator for defending the exceptions to his final settlement, was proper. Substantially all the exceptions were sustained, and the administrator has no right to expect the heirs of the deceased to pay attorneys for both sides in a successful effort to have his errors corrected. Where the administrator is defeated in an action against him for delinquency he must himself bear the cost of his unsuccessful defense. In re Soulard, 141 Mo. 670; Lilly v. Griffin, 71 Ga. 535; Crosswell on Executors and Admrs., secs. 546, 743; In re Meeker, 45 Mo.App. 197; Jacobs v. Jacobs, 99 Mo. 436. (2) The exceptions to the administrator's charge for commission, should also have been sustained. He is only allowed a commission of five per cent on personal property, and proceeds of real estate sales, which actually reach his hand virtute officii, and are properly paid away by him in the course of administration. Hitchcock v. Mosher, 106 Mo. 582; In re Garrison v. Trust Co., 77 Mo.App. 338.

BARCLAY, J. Bland, P. J., and Goode, J., concur.

OPINION

BARCLAY, J.

--This proceeding involves a review of the final settlement of the estate of Leonard Ansley, deceased, which estate is in charge of William C. Richardson, as public administrator.

The matter immediately in hand is an appeal from the decision of the circuit court upon a trial of exceptions filed by Joseph Ansley (one of the heirs and distributees of the deceased) to the final settlement of the administrator.

The judge of the probate court of the city of St. Louis (wherein the matter of the final settlement was pending) was interested in the case. Therefore, it was certified to the circuit court to be heard and determined, in conformity with the law on that subject. R. S. 1899, sec. 1760.

The case was tried in the circuit court with the result that five of the exceptions (out of the eight presented) were sustained in whole or in part. The circuit court re-stated the account, adjudged a certain balance due by the administrator, ordered the result to be certified to the probate court, and directed that the costs accrued in the proceeding for the accounting be taxed against the administrator. The other exceptions were overruled. The exceptions not sustained by the court in any particular were those numbered six and eight, which are as follows:

"6. He excepts to the charge of $ 51.25 alleged in said final settlement to have been reserved for the taxes of the year 1899, as being illegal and excessive.

"8. He excepts to the charge of $ 334 alleged to have been retained by said administrator for account of commissions and stamps as per said final settlement, because said charge is illegal and unreasonable."

The administrator took the appeal which is now before this court.

It will be convenient to state the facts bearing on each of the issues in connection with the rulings thereon.

1. At the outset, respondent claims that the questions presented by the exceptions are purely questions of fact, and that the findings of the circuit court, being sustained by evidence, may not be reviewed on appeal.

The Missouri law on this point does not seem to be as well settled as we might expect at this day. It was held in the matter of the estate of Danforth, 66 Mo.App. 586, that the review of a final settlement of an executor or administrator was analogous to an accounting before a master in chancery, and as such was reviewable in this court upon the facts and the law. That case followed an earlier one in the estate of Meeker, 45 Mo.App. 186.

But in a pioneer decision, which we do not find to have been expressly overruled, it was held by a divided court that such an appeal only brought to the Supreme Court questions of law for review and would not warrant the reversal of a judgment upon issues of fact. Chouteau v. Consoue, 1 Mo. 350. Judge JONES in that instance dissented from the judgment of his two colleagues, Chief Justice McGIRK and Judge PETTIBONE.

We find, however, that the rule stated in the Danforth case, above, has been so frequently recognized both by the Supreme Court and the Courts of Appeals that it should now be accepted as defining the settled practice in Missouri under the statutory law of recent years. In re Davis, 62 Mo. 450; Booker v. Armstrong, 93 Mo. 49, 4 S.W. 727, Myers v. Myers, 98 Mo. 262, 11 S.W. 617; Hitchcock v. Mosher, 106 Mo. 578, 17 S.W. 638; Glover v. Holliday, 109 Mo. 108, 18 S.W. 1133; Clark v. Bettelheim, 144 Mo. 258, 46 S.W. 135; Garr v. Harding, 37 Mo.App. 24; Wilson v. Ruthrauff, 82 Mo.App. 435.

2. We have reviewed the testimony. As the questions involved in the appeal are chiefly issues of fact, it does not seem necessary to burden the report of the case here with a review of the evidence on those issues. We will merely state, as shortly as possible, our conclusions on the various points of dispute.

3. The item of seventy-five dollars, allowed in favor of Mr. Oscar W. Roderman by the probate court on the first annual settlement, was reduced at last to fifty dollars by the circuit court. The amount had been paid Mr. Roderman by the administrator for services rendered the estate "in trying to find a purchaser for the lumber yard" and "helping in sorting papers and assets for the inventory" (to quote the language of the claimant as a witness). It has been approved by Judge RASSIEUR, a very discriminating and careful probate judge, who passed upon the first annual settlement of the accounts of this estate.

It was held in Myers v. Myers, 98 Mo. 262, 11 S.W. 617 that "when the...