Derge v. Jefferson Hill

• Decision Date: 23 November 1903
• Citation: 77 S.W. 105,103 Mo.App. 281
• Parties: A. DERGE et al., Appellants, v. JEFFERSON HILL et al., Respondents
• Court: Kansas Court of Appeals

77 S.W. 105

103 Mo.App. 281

A. DERGE et al., Appellants, v. JEFFERSON HILL et al., Respondents

Court of Appeals of Missouri, Kansas City

November 23, 1903

Appeal from Buchanan Circuit Court.--Hon. Henry M. Ramey, Judge.

AFFIRMED.

Judgment affirmed.

R. L Spencer and W. H. Utz for appellants.

(1) Final settlements are only conclusive of matters adjudicated therein, and as it is admitted that the remainder in the homestead and dower was not sold by the administrator, there was no adjudication as to this asset. Nelson v Barnett, 123 Mo. 564; Woerner, Administration, p. 1128; Bramell v. Adams, 146 Mo. 86. (2) Where an unadministered asset is discovered after the final discharge of the executor or administrator of an estate, and there are allowed unpaid demands against said estate, in cases not otherwise provided for, letters of administration of the goods remaining unadministered shall be granted to those to whom administration would have been granted if the original letters had not been obtained; and the administrator shall perform the like duties and incur the like liabilities as the former executors or administrators. Laws 1903, p. 52; Howell v. Jump, 140 Mo. 441; Ratliff v Magee, 165 Mo. 461; Woerner's Administration, p. 1255. (3) Laws 1903 providing for the appointment of an administrator de bonis non, affects the remedy and not the right. Barnett v. Van Meter, 33 N.E. 666; Thornton v. Clinton, 148 Mo. 648.

W. B. Norris and Joseph Morton for respondents.

(1) The order of the probate court approving the final settlement, and finding that the estate had been fully administered and discharging the administrators, is a final judgment and a bar to further proceeding affecting the property involved in the administration except by direct attack in equity. Nelson v. Barnett, 123 Mo. 564; Patterson v. Booth, 103 Mo. 402; Ratliff v. McGee, 165 Mo. 461; Weinerth v. Trendley, 39 Mo.App. 333; McLean v. Bergner, 80 Mo. 414; Smith v. Hauger, 150 Mo. 437; 2 Woerner on Admr., 1027, 1028; State ex rel. v. Gray, 106 Mo. 526; Woodworth v. Woodworth, 70 Mo. 601; Van Bibber v. Julian, 81 Mo. 618; Covington v. Chamblin, 150 Mo. 524; Pierce v. Calhoun, 59 Mo. 211. (2) The seventy-seven acres of land involved in this controversy was inventoried as part of the estate in 1888. The administrators were ordered to sell it, subject to the homestead estate, and this order was renewed nine times. It was consequently within the reach of creditors during the process of administration and the rights of creditors to subject it to their claims terminated when the final settlement was approved and the administrators were discharged. Tetterington, Administrator, v. Hooker, 58 Mo. 593; 1 Story's Eq., sec. 552; Gunby v. Brown, 86 Mo. 253; State ex rel. v. Probate Court, 41 N.W. 1033; Bank v. Field, 156 Mo. 306. (3) An administration de donis non can not be had of property which has already been subjected to the jurisdiction of the probate court in a former administration, but only of property discovered after the former administration has been closed or which, for some sufficient reason has not been drawn into the former administration nor brought within the reach of creditors thereby. Laws 1903, p. 52; Woerner on Admr., sec. 573. (4) The amendment of 1903 is simply declarative of the law as it existed prior to its passage. By its terms it is made applicable only to those estates where, "after final settlement of an estate is had and the executor or administrator has been discharged, unadministered assets of the estate be discovered after such final discharge," and can not have any application to the facts disclosed by this record besides the rights of the heir were fixed by the law in force when the administrators were discharged at the August term, 1902, before the passage of the amendment of 1903. (5) The delay of fourteen years has extinguished the lien of creditors and destroyed their right to subject this land to their claims. Gunby v. Brown, 86 Mo. 253; Weinerth v. Trendley, 39 Mo.App. 333; McLean v. Berger, 80 Mo. 414.

OPINION

ELLISON, J.

This proceeding is an application by creditors for the appointment of an administrator de bonis non of the estate of Thomas Hill, deceased. The probate court and the circuit court, on appeal, denied the application and the applicants have brought the case here.

It appears that Hill died in 1888 leaving a widow and children and both real and personal property. The real estate consisted of 451 acres of land and the personalty amounted to more than $ 4,000 in value. Letters of administration were taken out in September, 1888, and demands amounting to more than $ 8,000 were allowed within two years. These demands being far in excess of the personal estate, the probate court, on August 4, 1890, ordered the administrators to take charge of and rent the real estate. A few days thereafter the administrators presented their petition to that court for an order of sale of the real estate; and on the same day the widow asked that her homestead therein be set off. The homestead was duly set off January 15, 1891, amounting to seventy-seven acres of the land. On February 15, 1891, the court ordered the real estate sold, including the remainder in the seventy-seven acres homestead. Different parts of the land was sold at different times, there being nine renewal orders of sale, until all was sold save the remainder in the homestead. The proceeds of sales were applied on claims against the estate. Finally, on due notice...