Blickensderfer v. Hanna

• Decision Date: 29 November 1910
• Citation: 231 Mo. 93,132 S.W. 678
• Parties: BLICKENSDERFER v. HANNA et al.
• Court: Missouri Supreme Court

132 S.W. 678

231 Mo. 93

BLICKENSDERFER v. HANNA et al.

Supreme Court of Missouri, Division No. 2.

November 29, 1910.

Rehearing Denied December 13, 1910.

1. EXECUTORS AND ADMINISTRATORS (§ 349)— SALE OF REAL ESTATE TO PAY DEBTS—DECISION OF PROBATE COURT — COLLATERAL ATTACK.

The decision of the probate court that the debts of a decedent are unpaid, and that there is not sufficient personal estate to pay the same, and directing a sale of real estate to pay debts, is within its jurisdiction to determine the facts, and it is not open to collateral attack by heirs and legatees of the decedent assailing the title of one claiming under an administrator's sale pursuant to the order.

2. EXECUTORS AND ADMINISTRATORS (§ 325)— SALE OF REAL ESTATE—WHEN AUTHORIZED.

The probate court made an order directing the administrator to turn over the personal estate to the husband of the devisee under decedent's will. The personalty was sufficient to pay decedent's debts, and the order was made under the representation that the husband had paid the debts. The creditors whose claims were unpaid were not in court when the order was made. Held, that the unpaid creditors could resort to a sale of real estate to pay debts under Wagner's St. c. 2, art. 3, § 10, authorizing a sale of real estate to pay the debts of a decedent on his personal estate being insufficient without first suing the husband receiving the personalty or the bondsmen of the deceased administrator.

3. EXECUTORS AND ADMINISTRATORS (§ 349)— SALE OF REAL ESTATE—ORDERS—APPEAL.

Where the heirs and legatees received sufficient notice of an application for the sale of decedent's real estate to pay debts, to give the probate court jurisdiction, they must contest the finding that there was no personal estate sufficient to pay the debts, and, where they are dissatisfied with the order of sale, they must appeal therefrom, and they cannot collaterally attack the order on the ground of the sufficiency of the personal estate to pay debts.

4. PROCESS (§ 85)—SERVICE BY PUBLICATION —STATUTES—COMPLIANCE.

A statute authorizing substituted service of process by publication must be strictly observed to give the court jurisdiction.

5. EXECUTORS AND ADMINISTRATORS (§ 337)— SALE OF REAL ESTATE—NOTICE—PUBLICATION.

Under Wagner's St. c. 2, art. 3, § 25, requiring the publication for four weeks in some newspaper in the county of an application for an order for the sale of real estate of a decedent to pay debts, but without requiring the court to designate the newspaper, a publication of a notice for the required time in one newspaper of the county is sufficient as against collateral attack, though the court, in the order, designated no newspaper, especially where the court accepted the publication as a compliance with its order.

6. JUDICIAL SALES (§ 1)—NATURE.

In a judicial sale, the court ordering and approving the sale is the contracting party on one side, and the bidder on the other.

7. EXECUTORS AND ADMINISTRATORS (§ 360)— SALE OF REAL ESTATE TO PAY DEBTS.

An administrator making a sale of real estate to pay decedent's debts pursuant to an order of the probate court directing a sale is an officer or agent of the court in making the sale.

8. EXECUTORS AND ADMINISTRATORS (§ 375)— SALE OF REAL ESTATE—VALIDITY.

The probate court directing a private sale of real estate to pay a decedent's debts has jurisdiction to confirm a public sale, and its judgment of confirmation is not subject to collateral attack.

9. EXECUTORS AND ADMINISTRATORS (§ 375)— SALE OF REAL ESTATE TO PAY DEBTS—CONFIRMATION—EFFECT.

A sale of real estate under an order of the probate court ordering a sale to pay debts of a decedent is a judicial sale, and the confirmation thereof by the probate court cures all prior irregularities, provided the court obtained jurisdiction of the subject-matter and the parties.

Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.

Action by Robert Blickensderfer against F. G. Hanna and others. From a judgment for plaintiff, defendants appeal. Affirmed.

O. L. Cravens and L. C. Mayfield, for appellants. W. I. Wallace, for respondent.

GANTT, J.

This is an appeal from a decree of the circuit court of Laclede county determining the title to 200 acres of land in Laclede county, to wit, the N. E. ¼ and the N. W. ¼ of the S. E. ¼ all of section 25, township 34, range 15, to be in the plaintiff. The defendants are the devisees of Lewis Keedy, who died in said county in 1868, leaving a last will which was duly probated. By his will he gave the land in suit to Caroline E. Morelock, for her natural life, and, at her death, to her offspring. Mrs. Polly Keedy, the testator's widow, died in 1870. Mrs. Morelock after the execution of the will, but before her father's death, inter-married with J. P. Hanna. Of this marriage three children—Mrs. Christina Burch, Mrs. Mazie Bradley, and Farmer G. Hanna—were born and survived their mother, Mrs. Hanna, who died January 9, 1901, and they assert title to said land under the will of their grandfather, Lewis Keedy. Plaintiff claims title under an administrator's sale of said land, made in 1875, under an order of the probate court. By this appeal the validity of the probate proceedings under which the lands were sold and conveyed to plaintiff is brought in question. The bid of plaintiff for the 200 acres was $190. Subsequently some question arose as to the interest which Mrs. Morelock (afterwards Mrs. Hanna) took under the will, and plaintiff paid her $536 for a quitclaim deed to the land. The contention of the defendants is that the administrator's sale and deed were and are void for the following reasons: First, because there were no unpaid debts of the testator for which said lands could be sold; second, the order of publication required the notice to the heirs to be published in the Lebanon Journal, but it was published in the Lebanon Chronicle; third, the order required a private sale, but it was sold at a public sale, without a previous order for a public sale. These propositions will be considered in their order in the light of the record.

1. The administrator's deed recites that on July 12, 1875, at its July term, 1875, the probate court of Laclede county by its entry ordered said administrator to sell the land in controversy to pay off and discharge the debts of the testator, Lewis Keedy, at public sale, for cash in hand; that previous to the day of sale said administrator caused a notice that said real estate would be sold at public sale on October 11, 1875, at the courthouse door in Lebanon for cash in hand, to be published in the Lebanon Chronicle, a newpaper published in said county for four weeks, and also caused a copy of such notice to be put up in 10 public places in said county twenty days before said sale; that he caused said real estate to be duly appraised by three householders (naming them), who appraised the same at $300 and so certified under their oaths; that at said sale Robert Blickensderfer was the highest and best bidder for $190 and the same was stricken off to him, and that at the next term said administrator made report of his proceedings to the probate court, which by its order of record approved the same, and, in pursuance of the premises and the payment of the said sum, he conveyed the said land to said purchaser. To impeach and avoid said deed, defendants offered and read in evidence the inventory consisting of a long list of horses, cattle, hogs, farm implements, and household goods; also notes and accounts to the amount of $317.03. Defendants also read in evidence the appraisement of the said personal estate amounting to $803.85. Defendants also read the record of allowances against said estate, consisting of one for $25 in favor of John W. Wilkinson, in the first class, one in favor of the administrator of Keedy, Givens & Co., Alfred Case, administrator, for $54.30, fifth class, one in favor of H. F. Johnson for $13, one in favor of S. W. Barnes, fifth class, for $5.30, one for $4.60 in favor of Mary Davis and one in favor of Fy. Jones, administrator of Wm. Jones for $35. Defendants also read in evidence vouchers for payments of the allowances to Wilkinson, to Johnson, and receipts for printer's fees and probate costs. Defendants also read in evidence the first, second, and third annual settlements of Wm. Jones, the executor of said estate. The first settlement showed a balance due estate of $895.21; the second, a balance of $882.21; and the third a balance of $169.14 due the executor. Defendants also read in evidence an order of the probate court of April 10, 1872, directing the executor to deliver the personal property inventoried to J. P. Hanna, and take his receipt for $803.85, which he did, and his voucher therefor was filed in the third annual settlement. It appears that the executor, Jones, died and one McElvain was appointed administrator de bonis non in 1873. He was afterwards removed, and the estate was ordered into the hands of N. D. Atchley, public administrator, who afterwards filed the petition for the sale of the lands and made said sale and deed.

The petition alleged that there were debts unpaid; that no personal property had come into the hands of the administrator belonging to said estate; that there was no property except real estate; that it was necessary to sell said real estate or a part thereof to pay said debts, and set out a description of the lands, and prayed for an order of sale. The court made the order of publication on April 14, 1875, requiring the same to be made in the Lebanon Journal, and on July 12, 1875, made the order of sale. In support of their contention that there were no unpaid debts for which the lands could be sold, defendants introduced J. P. Hanna, who testified that he paid the Keedy, Givens & Co. allowance of $54.30; at least "that was his recollection." He also testified that he paid the $35 allowance to Jones. He testified that Mr. Wallace,...