Brown v. Woody

• Decision Date: 11 May 1886
• Citation: 22 Mo.App. 253
• Parties: JANE BROWN, Respondent, v. J. C. WOODY, ADMINISTRATOR, ET AL., Appellants.
• Court: Missouri Court of Appeals

22 Mo.App. 253

JANE BROWN, Respondent,

v.J. C. WOODY, ADMINISTRATOR, ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

May 11, 1886.

APPEAL from the Christian County Circuit Court, W. F. GEIGER, Judge.

Transferred to the Supreme Court.

JAMES R. VAUGHAN and D. M. PAYNE, for the appellants: Payment of claims for the deforcement of dower can only be enforced by execution or proceeding against the lands out of which the claim or judgment arose. 1 Rev. Stat., p. 370, sect. 2228; Brown v. Woody, 64 Mo. 547. “Under our statute respecting administration and the repeated adjudications of this court therein, probate courts possess no power to allow any claims against a decedent's estate, or to order the sale of land belonging thereto, except for the payment of the debts of the deceased, i. e., those in existence at the date of his death.” Presbyterian Church v. McElhaney, Adm'r, 61 Mo. 540; Aubuchan v. Long, 23 Mo. 99; Garnett v. Carson, 11 Mo. App. 290; Ferguson v. Carson, 13 Mo. App. 29; Fenix v. Fenix, 80 Mo. 27. “If the personal estate became insufficient to pay the debts in consequence of the devastavit, or neglect of duty of the administrator, the law furnishes a speedy and efficient remedy on the administration bond, which in the first instance should be pursued.” Merritt v. Merritt, 62 Mo. 150; Callahan v. Griswold, 9 Mo. 785; Pearce v. Calhoun, 59 Mo. 271; North v. Priest, 9 Mo. App. 586.C. W. THRASHER and J. J. GIDEON, for the respondent: The judgment of Jane Brown, the respondent, v. J. H. Woody, administrator of the estate of Abraham Woody, deceased, and the classification of the same in the fifth class of demands against said estate, being final judgments of courts of competent jurisdiction, are res adjudicata as to the matters determined therein, and binding and conclusive upon the parties to this proceeding; and the same matters can not be re-opened or inquired into in this collateral proceeding. Crespin v. Hannavan, 50 Mo. 415; Cooley v. Warren, 53 Mo. 166; Shroyer v. Nickell, 67 Mo. 589; Brown v. Woody, 64 Mo. 547; Greenbaum v. Elliott, 60 Mo. 25; Townsend v. Townsend, 60 Mo. 246; Chouteau v. Gibson, 76 Mo. 38; Caldwell v. White, 77 Mo. 471. The classification of the claim of the respondent against the estate of said deceased has the force and effect of a judgment, and can only be attacked, or set aside, or modified in the same manner as any other judgment. Miller v. Janney's Ex'r, 15 Mo. 265; Nelson & O'Bryan v. Russell's Adm'r, 15 Mo. 357; Jillett's Adm'r v. Union National Bank, 56 Mo. 304. The failure of the appellant administrator to file the lists and inventories required by the statutes to be filed by him in this case, did not affect the jurisdiction, or invalidate the judgment, of the court below. Overton v. Johnson, 17 Mo. 442; Mount v. Valle, 19 Mo. 621; Grayson v. Weddle, 63 Mo. 523. The final settlement of John H. Woody, former administrator of the estate of said Abraham Woody, deceased, is a final judgment, and would bar a suit on his bond for waste by a creditor, or any one else. Sheetz v. Kirtley, 62 Mo. 417; Jones v. Brinker, 20 Mo. 87; The State v. Roland, 23 Mo. 95; Mitchell v. Williams, 27 Mo. 399; Sullivan County v. Burgess, 37 Mo. 300. The judgment being for the right party, the clerical error in the order of sale should be corrected, and the order of sale affirmed. Phillips v. Evans, 64 Mo. 17; 1 Rev. Stat., sect. 3775, p. 642; Miller v. Newman, 41 Mo. 509; Hunter v. Miller, 36 Mo. 143; Orth v. Dorschlein, 32 Mo. 366; Hoskinson v. Adkins, 77 Mo. 537.

THOMPSON, J., delivered the opinion of the court.

In 1872 the plaintiff recovered a judgment, in the probate and common pleas court of Greene county, against John H. Woody, as administrator of the estate of A. Woody, deceased, for damages in the sum of six hundred dollars for the deforcement of her dower by A. Woody in his lifetime, and afterwards by John H. Woody, his administrator. This judgment was, by the probate and common pleas court of Greene county, ordered to be certified to the probate court of Christian county for allowance against the estate of A. Woody, deceased, there in course of administration. A transcript of this judgment was presented to the probate court of Christian county, and ordered to be placed in the fifth class of claims against the estate of the said decedent. From this order of classification John H. Woody, the administrator, appealed to the circuit court of Christian county, by which court the order was affirmed. From this judgment of affirmance John H. Woody again appealed to the supreme court, in which court the judgment was again affirmed. Brown v. Woody, 64 Mo. 547. This was in 1877, twelve years after the deforcement of the plaintiff's dower had taken place. In 1882, J. C. Woody, administrator de bonis non of the estate of A. Woody, deceased, successor to John H. Woody, filed his final settlement in the probate court of Christian county, showing that the personal assets of the estate had been fully administered and that there was a balance due him as administrator, whereupon an order was entered that he be discharged. It also appears that thereafter, upon a petition presented by J. C. Woody, administrator de bonis non of the estate of A. Woody, deceased, an order was made in 1883, by the probate court of Christian county, to sell certain lands belonging to the estate of A. Woody, deceased, situated in Greene county, to satisfy the above named judgment of this plaintiff; that a sale was had under this order, but that this sale resulted in producing no more than one hundred and thirty-five dollars.

To satisfy the residue of this judgment the plaintiff, after having given notice to the administrator, as required by the statute (Rev. Stat., sect. 150), presented her petition in the probate court of Christian county, praying for the sale of certain lands of the decedent situated in that county. From the order made upon this petition by the probate court of Christian county, an appeal was prosecuted to the circuit court of the same county. The circuit court made an order of sale, as prayed for in the petition, and from this order the present appeal is prosecuted to this court.

I. The first point made by the appellant is, that the order of sale is erroneous, because it appears from the record of the cause in the probate and common pleas court of Greene county, which resulted in the judgment in favor of the plaintiff, that the judgment was rendered for damages for the deforcement of her dower, and that, under section 2228, Revised Statutes, such a judgment can only be enforced by execution against the estate in which dower was assigned. This precise question was presented to the supreme court on the appeal from the order of the probate court of Christian county, classifying this judgment as a demand against the estate of A. Woody, deceased, and it was held that it was not well taken, because the statute does not apply in respect of the estates of deceased persons, against which no execution can issue. Brown v. Woody, 64 Mo. 547, 551.

II. The next objection is that the classifying of the judgment in the probate court of Christian county was void, because it appeared by the judgment itself that a portion of the damages accrued subsequent to the death of A. Woody. A conclusive answer to this is, that in the case just cited, the supreme court affirmed the judgment ordering the classification, and we have no power to reverse and set aside the judgments of the supreme court, especially in collateral proceedings. The judgment of the probate and common pleas court of Greene county is set out at large by the supreme court in its opinion in the case already alluded to, at 64 Mo. 549, and shows on its face the fact upon which the contention that it could not be classified as a demand against the decedent's estate is predicated. The question should have been raised then. It is a settled rule that the judgment of a court of competent jurisdiction concludes not only the questions which were presented, but, also, the questions which might have been presented for decision.

III. The question of the jurisdiction of the probate and common pleas court of Greene county to render the judgment which was thus classified, was presented to the supreme court, in the case already stated, and decided in the plaintiff's favor. It is, therefore, not open for re-examination here.

IV. A declaration of law was asked by the defendants embodying the principle that the judgment of the probate and common pleas court of Greene county could be attacked in this proceeding for fraud. The defendant Woody is precluded from setting up this defence upon well understood principles, this being a proceeding collateral to the Greene county judgment, and he being a privy thereto, it having been obtained against his predecessor in the office of administrator of A. Woody. The defence seems to be open to the other defendants, who are strangers to that record. Callahan v. Griswold, 9 Mo. 784, 792. But they have not availed themselves of it by offering any evidence tending to show fraud or collusion in that judgment.

V. The objection that no order of sale could be legally made, because the administrator failed to file the accounts, lists, and inventories which are required in such a case to be filed by section 151, Revised Statutes, does not seem to be well taken. It is true that, under the terms of this section, he could have been required to file such lists by attachment. But notice was given to him to do so by the plaintiff, and he refused; and, so far as he is concerned, it does not lie in his mouth to set up his own wrong in this regard. In such a case, the creditor is not obliged to produce the inventories required, and his failure to do so after notice does not avoid the sale. Grayson v. Weddle, 63 Mo. 523; Overton v....