Desloge v. Tucker

• Decision Date: 30 May 1906
• Citation: 196 Mo. 587,94 S.W. 283
• Parties: DESLOGE et al. v. TUCKER
• Court: Missouri Supreme Court

94 S.W. 283

196 Mo. 587

DESLOGE et al. v. TUCKER

Supreme Court of Missouri, Division No. 1.

May 30, 1906.

1. EXECUTORS AND ADMINISTRATORS—SALES—NOTICE.

Rev. St. 1899, § 148, provides that on filing of a petition for sale of real estate of a decedent, the court shall order all persons interested in the estate to be notified thereof, and that such notice be published; provided, that where the heirs or "devisees" are residents of the county, notice shall be served on each one. Section 4160 provides that, in construing statutes, words and phrases shall be taken in their plain or ordinary and usual sense, but technical words and phrases having peculiar and appropriate meaning in law shall be understood according to their technical import. Held, that the word "devisees" does not include legatees.

2. SAME—CONFIRMATION—APPEAL — PRESUMPTIONS.

Rev. St. 1899, § 148, provides that on filing a petition for a sale of land of a decedent, a notice shall be published; provided, that where the heirs or devisees are residents of the county, personal service must be made. Held, that where, on appeal from an order confirming a sale, it appeared that there was notice by publication only, but it did not appear whether the heirs and devisees were residents, it would be presumed they were not.

3. JUDGMENT—COLLATERAL ATTACK—PROBATE COURTS.

The same presumptions are indulged to sustain the proceedings of probate courts on collateral attack as are indulged to sustain the proceedings of other courts of record.

4. EXECUTORS AND ADMINISTRATORS—SALES—REVIEW OF ORDER FOR SALE — COLLATERAL PROCEEDING.

Rev. St. 1899, § 278, gives an appeal from an order of a probate court for the sale of real estate, and provides that an appeal lies in all other cases from a final decision of any matter arising under the statute. Held, that where no appeal was taken from an order of sale, on appeal from the order of confirmation, a question as to the jurisdiction to make the order of sale for matter not appearing on the face of the record might be raised.

5. SAME—NOTICE OF PETITION FOR SALE—NECESSITY.

The notice, to heirs and devisees and those interested in the estate of a petition for the sale of a decedent's real estate, as required by Rev. St. 1899, § 148, is jurisdictional.

6. SAME — CONFIRMATION — INADEQUACY OF PRICE.

Rev. St. 1899, § 167, provides for a full report of an administrator's proceedings under an order for a sale of a decedent's real estate and section 168 provides that if the report and proceedings be not approved, the proceedings shall be void. Held, that where an administrator sold land under an order for a private sale for about half what it was worth, and for less than would pay debts and legacies, and the heirs were interested in a surplus, which would have arisen at a sale for the full value, the probate court should not have confirmed the sale.

Appeal from Circuit Court, St. Francois County; Robert A. Anthony, Judge.

Judicial proceedings on the settlement of the estate of John M. Desloge, deceased. From a judgment of the circuit court reversing an order of the probate court, confirming a sale of real estate, Rufus C. Tucker, as administrator with the will annexed, appeals. Affirmed.

Polite Elvins, M. R. Smith, and Barclay, Shields & Fauntleroy, for appellant.

Geo. D. Reynolds and Geo. V. Reynolds, for respondent, cite Cunningham v. Anderson, 107 Mo. 371, 17 S. W. 972, 28 Am. St. Rep. 417; Hutchinson v. Shelley, 133 Mo. 412, 34 S. W. 848; Young v. Downey, 145 Mo. 250, 46 S. W. 1086, 68 Am. St. Rep. 568; Williams v. Monroe, 125 Mo. 574, 28 S. W. 853; Laney v. Garbee, 105 Mo. 355, 16 S. W. 831, 24 Am. St. Rep. 391; Cloud v. Inhabitants of Pierce City, 86 Mo. 365.

LAMM, J.

This is an appeal by R. C. Tucker, administrator cum testamento annexo of the estate of John M. Desloge, deceased, from a judgment of the circuit court of St. Francois county disapproving a report of sale of real estate; said report having been confirmed in the probate court and certain heirs and devisees having appealed from that order to the said circuit court. The terms of the will of John M. Desloge are pertinent to certain contentions made here, and the will, moreover, is curious; testament, attesting clause, the personality and identity of the scrivener (a medical man), together with a solemn perpetuation of his services, as such, being accomplished by a single stroke and certified by testator himself. The will reads:

                "Battle Creek Sanitarium, Battle Creek
                                   Mich., Aug. 29, 1900
                

"I hereby put my hand and seal to this instrument as being my desire of the disposition of my property, amount to about twenty-five or thirty thousand dollars ($25,000 or $30,000). Being in my right mind and in the faith, property to be disposed of as follows:

"Mrs. Jane Pullis, Jules Desloge, Sophia Desloge, Clara D. Pike, share in and alike Four Thousand Dollars, ($4,000) apiece; children of Louise Jamison share in and alike Fifteen Hundred Dollars ($1,500); Mrs. L. M. Valle, Josephine Fuse, Firmin Desloge, Zoe D. Cobb, share in and alike, One Hundred Dollars ($100) apiece; to Miss Louise Pearce Five Hundred Dollars ($500); to charity Five Hundred Dollars, to be distributed according to the desire of my legal heirs. This disposition of property to be made after all legal and just debts against the same are settled.

"I, as the attending physician of Mr. J. M. Desloge for the past four weeks, can state that he has transacted all of his own business and is of a sound mind, and I and the two following gentlemen were present when J. M. Desloge made his desire known as to the disposition of his property, and do hereby testify by placing our names to this document; that in our hearing he made these statements which were written and then, after reading he stated it was correct, and signed the same in our sight.

                                       "Jno. M. Desloge
                  "H. P. Rand, M. D
                  "John Glade
                  "Vahan Pampian."
                

The learned trial judge, Hon. Robert A. Anthony, made a written finding of facts and delivered an opinion, which finding of facts is fully sustained by the record, and is therefore adopted as far as it goes. His finding reads:

"R. C. Tucker, as the administrator of the estate of John M. Desloge, deceased, presented his petition to the probate court of St. Francois county, Mo., asking that the land in question in this suit be sold for the purpose of paying debts and legacies owing by said estate. At the July term, 1901, of said probate court, an order was made authorizing the administrator to sell the land at private sale. Prior to obtaining said order notices directed to all the objecting parties were posted in 10 public places in said county of St. Francois 20 days before the first day of the July term of court. Neither the petitions, order of sale, notice of application, return of sheriff showing posting of notices, nor any step taken in the proceeding to sell the land, disclose the fact that any of the heirs and devisees were residents or nonresidents of the county of St. Francois. In pursuance of the order above referred to the administrator sold the land in question to Thomas H. Stam, on May 12, 1902, at private sale, for $50 per acre, or a total of $10,000, only $50 of which has been paid to the administrator. A contract was entered into between the administrator, Tucker, and Stam, by which Stam agreed to pay him the further sum of $9,950 `as soon as the further and necessary orders of probate court of St. Francois county, Mo., can be made and the defects in the title perfected.' Prior to the sale to Stam the land in question was appraised in due form at the sum of $25 per acre. Soon after the sale to Stam, and before it was approved by the probate court, objections were made by Jules Desloge and others to the confirmation; they having, before the report of sale was made and approved, offered the administrator the sum of $18,000 for the land; it being a sum of $8,000 in excess of the price to be paid by Stam. The sale of the land to Stam was approved by the probate court at its July term, 1902, and the parties interested in the estate, as heirs, devisees, and legatees, except Louise Pierce, appealed to this court from the order approving such sale. Louise Pierce has entered her appearance in this court as one of the persons named in the will of John M. Desloge, and is objecting here to the approval of the sale to Thomas H. Stam. She resided at Desloge in this county during the year 1901. By the will of John M. Desloge she is given $500, but she had no interest as an heir in the land of John M. Desloge. The will of John M. Desloge gives to certain parties named specific sums of money, but does not specify out of what funds such legacies are to be paid, whether from personal or real estate. This land, at the time it was sold to Mr. Stam, on May 12, 1902, is valued by the witnesses all the way from $50 to $150 per acre. Two witnesses who are not shown to have any interest in the controversy value it from $100 to $150 per acre. The administrator never offered the land to any one except the Desloge heirs and Thomas H. Stam. It is not shown that he made any attempt to sell the land to any of the several mining companies doing business in the vicinity. That the land had a greater market value than $50 per acre is shown by the fact that very soon after Mr. Stam bargained for it, he bargained to resell it to the St. Jose Lead Company at $100 per acre. Evidently the administrator did what he could to effect a sale to Jules Desloge and the other heirs of John M. Desloge, deceased. He was given to understand that at least Jules Desloge and some of his sisters did not wish to purchase the property. Although the report of sale made by the administrator shows that he was paid the sum of $10,000 by Mr. Stam, yet the fact is that Mr. Stam has only paid the sum of $50. This court, on appeal from the order of the probate court approving the sale to Stam, is...