Baker v. Schoeneman

• Decision Date: 31 October 1867
• Citation: 41 Mo. 391
• Parties: CATHARINE and HENRY BAKER, Defendants in Error, v. E. S. SCHOENEMAN, Executor of Estate of J. C. RUNKLE, deceased, Plaintiff in Error.
• Court: Missouri Supreme Court

41 Mo. 391

CATHARINE and HENRY BAKER, Defendants in Error,

v.E. S. SCHOENEMAN, Executor of Estate of J. C. RUNKLE, deceased, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1867.

Error to Second District Court.

Jos. J. Williams, for plaintiff in error.

I. The Circuit Court had no jurisdiction of the cause and no power to render judgment against the executor, or to reverse the action of the County Court. An appeal does not lie from the settlements of executors and administrators until final settlements, because the settlements before final settlements are not judgments, and are not binding or conclusive on parties interested in the estate, but may be altered, corrected or annulled at final settlement--Picot v. Biddle's Adm'r, 35 Mo. 29. No appeal lies in this case except from a final judgment or decision.

The second clause of the 1st section of the 8th article of the “Act respecting administration” can only apply to final settlements where there is a final adjudication of all the accounts of the executor, had upon notice to all parties interested in the estate.

II. The decision of the Circuit Court requiring the executor to pay the costs out of his own estate was erroneous; he was entitled to a credit in his settlement for the costs paid by him--R. C. 1855, p. 156, § 25. The case of Woolbridge, Adm'r, v. Draper, 15 Mo. 470, has no application in this case.

Jno. L. Thomas, for defendants in error.

The Circuit Court committed no error in taxing the costs against the executor de bonis propriis, nor the District Court in affirming that judgment. The cause of action accrued to Schoeneman as executor and to Runkle in his lifetime, and the case of Woolbridge, Adm'r of McDonald v. Draper is directly in point--15 Mo. 470.

An appeal will lie from a settlement of an administrator or executor--R. C. 1865, p. 514, § 1.FAGG, Judge, delivered the opinion of the court.

It may be gathered from the record in this case, that the subject matter of controversy between these parties is as to the correctness of an allowance made by the County Court of Jefferson county in favor of the plaintiff in error, and carried into his first annual settlement as a credit. An appeal was taken to the Circuit Court of that county, where the action of the County Court was held to be erroneous and the settlement set aside. The following extract from the records of the Circuit Court will show the facts found as well as its judgment: “And the court proceeding to try the cause anew, doth find that the said executor obtained credit in said County Court for the sum of $296.45 as costs. attorney's fees and commissions, which accrued in a proceeding instituted by the plaintiff against the executor to recover her absolute property in the estate of said deceased; that said sum was illegally and erroneously allowed to said executor in said settlement; that the same should have been taxed against said executor de bonis propriis. It is therefore ordered,” &c. The case was taken to the Second District Court, by writ of error, and the judgment of the Circuit Court affirmed. It is now brought here upon a writ of error to the last named court.

It is manifest upon this state of facts that the first inquiry must be directed to the question as to whether an appeal would properly lie from the action of the County Court.

The order of the court which placed the amount in controversy to the credit of the plaintiff in error upon the settlement of his accounts, was not a decision or determination of any matter separate and distinct from the settlement itself. On the contrary,...