Elstroth v. Young

• Decision Date: 29 April 1902
• Court: Missouri Court of Appeals
• Parties: ELSTROTH et al. v. YOUNG.<SMALL><SUP>1</SUP></SMALL>

68 S.W. 100

94 Mo. App. 351

ELSTROTH et al. v. YOUNG.¹

Court of Appeals of St. Louis, Missouri.

April 29, 1902.

PUBLIC ADMINISTRATOR — FEES — PROCEEDINGS BY CREDITORS — COSTS — SALE OF LAND.

1. Where creditors of an intestate unsuccessfully claim in proceedings against the public administrator that funds in his hands are assets of the estate, rather than the property of minor heirs, they are taxable with the costs.

2. On an order in the circuit court for distribution of a fund by the public administrator, it was proper to allow him 5 per cent. on a sum paid on a previous distribution in the probate court.

3. The public administrator is entitled to 5 percent. for distributing to creditors proceeds of sale of land made by order of the probate court, under Rev. St. 1899, c. 1, art. 8, relative to administration.

Appeal from circuit court, Lincoln county; Hughes, Judge.

Proceedings in probate court by Henry Elstroth and others against William R. Young, public administrator. From a judgment for defendant on appeal to the circuit court, plaintiffs appeal. Affirmed.

Martin & Woolfolk, for appellants. Norton, Avery & Young, for respondent.

BLAND, P. J.

Fritz Dickmeyer died intestate in Lincoln county in the year 1896. No widow survived him, but he left four children, all under the age of 14 years. Deceased owned, and resided upon until his death, a homestead of 120 acres in Lincoln county, which he had incumbered by a deed of trust for $2,800. His estate was ordered into the hands of William R. Young, public administrator, who took charge of it as such. His personal estate was of the value of $1,034. Young was also appointed and qualified as guardian of Dickmeyer's children. The homestead of the minors in the real estate was set off by proceedings had in the probate court. Afterwards the trustee in the deed of trust foreclosed that instrument by selling the entire tract of 120 acres, which brought, over and above the debt, $1,767.36, which surplus was paid over to Young. The appellants, as creditors of Dickmeyer's estate, appeared in the probate court and sought to charge Young, as administrator, with the whole of the surplus of $1,767.36, claiming it to be an asset of the estate of Dickmeyer. To this application of the creditors, Young answered that he held this money as guardian of Dickmeyer's heirs; that it represented their homestead interest in the land, and that it rightfully belonged to them; that the estate was not entitled to any part of it. The probate court found against Young, charged him as administrator with the whole of the fund, and made an order requiring him to distribute it among the creditors of the estate. From this order of distribution, Young appealed to the circuit court. From the circuit court the cause was thrice appealed to this court, resulting finally in a judgment of the circuit court finding that $816.16 rightfully belonged to the heirs, and represented their homestead interest in the land, and that the balance should be charged to Young, as administrator of Dickmeyer's estate, and distributed among the creditors, after deducting the following items of cost:

                Taxes...................................... $ 28 19
                Probate fees

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