Clow's Estate v. Clow

• Citation: 167 S.W.2d 903,237 Mo.App. 267
• Parties: In re Estate of Almond Clow, Deceased, Respondent, v. Charles Clow, Exceptor, Appellant
• Decision Date: 02 November 1942
• Court: Court of Appeals of Kansas

167 S.W.2d 903

237 Mo.App. 267

In re Estate of Almond Clow, Deceased, Respondent, v. Charles Clow, Exceptor, Appellant

Court of Appeals of Missouri, Kansas City

November 2, 1942

Appeal from Adair Circuit Court; Hon. Noah W. Simpson, Judge.

Affirmed.

H H. Jones and E. M. Jayne for appellant.

The court properly sustained the exceptions to certain credits claimed by executrix. Hoffmeyer v. Mintert, 93 S.W.2d 894; In re Han & Han Estate, 22 S.W.2d 209; Sec. 1058, R. S. 1939; Cole v. Cole, 89 Mo.App. 228; Sec 2444, R. S. 1939.

Rendlen & White and Claude C. Fogle for respondent.

(1) No exceptions to settlement are properly before this court. (a) Hoffmeyer v. Mintert (Mo.), 93 S.W.2d 894, 896; In re Shelton Estate, 338 Mo. 1000, 93 S.W.2d 684 685; In re Mills' Estate (Mo.), 162 S.W.2d 807, 811. (b) Numerous accounts, claims, cancelled checks, vouchers and receipts examined by the court are not shown in the record here. Hoffman v. Mintert, 93 S.W.2d 894, 986. (c) Appellant fails to present in his brief and statement a single exception for consideration of this court. The abstract fails to state reasons for exceptions to 113 of the 123 exceptions made. (2) Appellate court reviews the exceptions, if any are here, de novo. Ansley v. Richardson, 95 Mo.App. 332; In re Helm's Est., 136 Mo.App. 421, 426. (3) Items for preservation of estate approved annual settlements are conclusive, unless charges are unreasonable. Sec. 220, R. S. 1939; Elstroth v. Dickmeyer, 88 Mo.App. 418; Jacobs v. Jacobs, 99 Mo. 427; In re Est. of Meeker, 45 Mo.App. 186, 194, 197; Hill v. Evans, 114 Mo.App. 715, 719; Thompson v. Thompson, 217 S.W. 863, 864; Jones v. Redman, 75 S.W.2d 80, 83; Hewitt v. Duncan's Est. (Mo. App.), 43 S.W.2d 87, 90. When the probate court allows disbursements in annual settlements, the allowance thus made is prima-facie evidence of its correctness and of the matters therein set out. Myers v. Myers, 98 Mo. 282, 269, 270; Clark v. Sinks, 144 Mo. 448, 454; Ansley v. Richardson, 95 Mo.App. 332, 336; State ex rel. v. Strickland, Admr., 80 Mo.App. 401; State ex rel. v. Elliott, 82 Mo.App. 458, 469; McPike v. McPike, 111 Mo. 216; Noelke v. Jenny, 298 S.W. 1055, 1058. Claims for caring for property of estate did not exist at testator's death but were created to protect and advance the interest of the estate. Sec. 220, R. S. 1939; Ansley v. Richardson, 95 Mo.App. 336; Lewis v. Carson, 16 Mo.App. 361. (4) In reviewing settlements this court applies equitable principles in doing justice. Stanton v. Johnson's Est., 117 Mo.App. 54, 57; In re Helm's Est., 136 S.W.2d 421, 426; In re Jarboe's Est., 227 Mo. 59, 93; Ansley v. Richardson, 95 Mo.App. 332, 334, 5; In re Davis, 62 Mo. 450; Booker v. Armstrong, 93 Mo. 262; Hitchcock v. Mosher, 106 Mo. 578; Glover v. Holliday, 109 Mo. 108; Clark v. Bettleheim, 144 Mo. 258; Garr v. Harding, 37 Mo.App. 24; Wilson v. Ruthrauff, 82 Mo.App. 435; Thompson v. Thompson, 217 S.W. 865; Hoffmeyer v. Mintert, 93 S.W.2d 894. Final settlement of executrix is analogous to accounting before master in chancery. Proceedings on filing of exceptions thereto are essentially equitable and must be so tried and so reviewed as such on appeal in this court. In re Estate of Meeker, 45 Mo.App. 186, 194, 195; In re Estate of Danforth, 66 Mo.App. 586, 589; Ansley v. Richardson, 95 Mo.App. 334, 335, and cases supra. (5) Estate cannot take increases and profits of executrix, and not pay expenses of producing same. It would be grossly inequitable and harsh to charge this executrix with the expenses incurred in making more valuable and adding to the assets of the estate. Lewis v. Carson, 16 Mo.App. 342, 358; Merritt v. Merritt, 62 Mo. 150, 156; 30 C. J. S., p. 462; Gibson v. K. C. Refining Co., 32 F.2d 658; Jones v. McGonigal, 37 S.W.2d 892, 895; Wederstadt's Succession, 19 La. Ann. 494. (6) Uncontradicted evidence of executrix must be accepted as true. Woodward v. C.M. & St. P. Ry., 8th C. C. A., 145 F. 577, 582; Cupples Co. Mfgrs. v. N. L. R. B., 8th C. C. A., 106 F.2d 100, 104-5; 23 C. J. 47, sec. 1791; Raw v. Maddox, 230 Mo.App. 515, 93 S.W.2d 282; Smith v. Metropolitan St. Ry. Co. (Mo. App.), 201 S.W. 569; Manchester Bank v. Harrington (Mo.), 199 S.W. 242, 248; Pennsylvania R.R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819; Cook v. St. Joseph, etc., Co., 106 S.W.2d 38, 44, and cases cited. (7) Exceptor estopped to question executrix's outlays. In re Helm's Est., 136 S.W.2d 421, 426; Hoffmeyer v. Mintert, 93 S.W.2d 894; Wederstradt's Succession, 19 La. Ann. 494; Swaine v. Hemphill, 165 Mich. 561, 131 N.W. 68; State ex rel. Warin v. Dickson, 213 Mo. 67; Reavis v. Reavis, 135 Mo.App. 199, 203-4; Bruce, Admr. v. Beck, 46 Mo. 327; In re Helm's Est., 136 S.W.2d 421, 426; Hoffmeyer v. Mintert, 93 S.W.2d 894. (8) Administrative outlays proper. Ansley v. Richardson, 95 Mo.App. 337. (9) Allowed demands cannot be attacked on final settlement. Secs. 284 and 286, R. S. 1939; Keet Co. v. Williams, 202 S.W. 620, 622; State ex rel. Peper v. Reynolds, 226 S.W. 550, 553; Hoffmeyer v. Mintert, 93 S.W.2d 894, 897; Cohen v. Atkins, 2 Mo.App. 156. (10) Change of venue allowable herein from one circuit court to another. Sec. 1058, R. S. Mo. 1939. "The causes" and "cases" which Sec. 2444, R. S. Mo. 1939, provides may be certified by the probate judge to the circuit court are "civil suits." Under Sec. 1058, R. S. Mo. 1939, wherein change of venue may be had from one circuit court to another, civil suits are all those which are not criminal. State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 185-188; Yoeman v. Younger, 83 Mo. 424, 428-9; Clement v. Greenwell, 40 Mo.App. 589, 593; State ex rel. Sharp v. Knight, 26 S.W.2d 1011, 1014; State ex rel. Anderson Motor Service Co. v. Pub. S. Com., 234 Mo.App. 470, 134 S.W.2d 1069, 1079-80. Affirmed and adopted on certiorari in 154 S.W.2d 777, (Mo.) (Circuit Court reviewing order of Pub. Service Com.); Walker v. Ellis, 146 Mo. 327 (applies to jury and non-jury suits); In re McFarland, 223 Mo.App. 826, 12 S.W.2d 523 (proceeding to adopt child); In re T. S. Heath & Sons, 136 Mo.App. 347, 117 S.W. 125 (assignment for benefit of creditors); State ex rel. Bixman v. Denton, 128 Mo.App. 304, 107 S.W. 446 (certiorari in circuit court to review order of county court granting dramshop license); Morse v. Consolidated Underwriters, 163 S.W.2d 586; Sharp v. Knight, 224 Mo.App. 761, 26 S.W.2d 1011, 1016; State ex rel. v. Denton, 128 Mo.App. 304, 312.

OPINION

Cave, J.

This is an appeal from final judgment of the Circuit Court of Adair County, Missouri. The cause arose in the probate court of Scotland county, by Charles Clow, a beneficiary under the will of deceased, filing written exceptions to certain credits claimed by the executrix in her first semi-annual settlement, her two annual settlements, and her final settlement. The exceptions questioned the legality of about 153 items of credit claimed by the executrix. After these exceptions were filed an affidavit was filed alleging that the probate judge was a material witness in the matter, and in accordance with the statute, section 2444, Revised Statutes 1939, the probate court certified the matter to the circuit court of Scotland county. Thereafter, a change of venue was taken and the cause transferred to the circuit court of Adair county, where the cause was tried before the court, and from the final judgment, the exceptor, Charles Clow, perfected his appeal.

The record discloses that on April 5, 1936, one Almond Clow, died testate in Scotland County, Missouri, leaving Charles Clow, the exceptor, a son, Josephine Clow, a daughter, (the executrix) and Elsie Clow, a daughter, as the sole beneficiaries of his will, except two small bequests made to two grandchildren. Josephine Clow was appointed and qualified as executrix of said will, the terms of which are not directly involved herein. At the time of his death, Almond Clow owned 265 acres of land in his own right, which was appraised at $ 4262.50. He also left certain personal property consisting of live stock, farming tools, and household goods which were appraised at the value of $ 1372.25. The two daughters had always lived with deceased on his farm, and the son lived on a farm nearby. The executrix did not sell the personal property shortly after her father's death, but on the contrary, she and her sister remained on the farm and continued the farm operations about as they had been done prior to the father's death. The live stock and their increase consumed the feed that was raised on the farm, and at various times it was necessary for additional feed to be bought. This operation continued until in June, 1939, when the remaining personal property was sold and the final settlement filed, which caused the filing of the exceptions heretofore referred to. The court sustained 112 of the exceptions, as numbered, and certain items which bore no number, and overruled all other exceptions. By its judgment, the trial court found and ordered --

"that the final settlement of Josephine Clow, the executrix, be modified and corrected so that the executrix be charged therein with the sum of $ 1372.25, and that the said executrix be credited with the sum of $ 1492.28, and it is further considered, ordered and adjudged that all other of said exceptions be and the same are hereby overruled, and that the final settlement, as above corrected and modified, be and the same is in all things approved and confirmed. . . ."

The court made certain findings of facts and conclusions of law which, because of their length, will not be copied herein. The court very diligently and carefully considered all of the various items excepted to and either sustained or overruled each item and after considering the four settlements which had been filed by...