Emmons v. Gordon

• Decision Date: 22 December 1894
• Citation: 125 Mo. 636,28 S.W. 863
• Parties: EMMONS v. GORDON et al.
• Court: Missouri Supreme Court

28 S.W. 863

125 Mo. 636

EMMONS v. GORDON et al.

Supreme Court of Missouri.

December 22, 1894.

EXECUTORS AND ADMINISTRATORS — FINAL ACCOUNTING — STATUTORY REQUIREMENTS — WHAT CONSTITUTES — ADMINISTRATOR DE BONIS NON — RECORD ON APPEAL — OFFER OF COMPROMISE.

1. Under Rev. St. 1889, §§ 47, 48, providing that upon the resignation of any executor he shall account to his successor on final settlement, and making it the duty of such successor

to move the court to compel such an accounting, a resigning executor can make no final settlement until his successor is appointed.

2. In an action by an administrator de bonis non to compel a final accounting by his predecessor, the latter's so-called "answer" to the petition, setting forth an attempted final settlement before plaintiff's appointment, together with a supplemental settlement proposed by him, in which he confesses further indebtedness to the estate, will be considered as the "settlement," or statement of accounts in writing to be filed in the probate court, required by Rev. St. 1889, §§ 47, 48, which provide for a "final settlement" with his successor by an outgoing executor.

3. Though part of the case on appeal appears nowhere else than in the bill of exceptions, it will nevertheless be considered as part of the record proper.

4. Rev. St. 1889, § 2191, providing that defendant may, at any time before trial, serve upon plaintiff an offer in settlement, which, if not accepted within 10 days, shall be deemed withdrawn, and, if plaintiff fail thereafter to recover a more favorable judgment, he shall be liable for defendant's costs from the time of the offer, is not applicable to an action to compel an outgoing executor to submit an account.

Barclay, J., dissenting.

In banc. Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Proceedings by S. P. Emmons, as administrator de bonis non with the will annexed of J. J. West, deceased, to compel a final accounting by John M. Gordon, late executor under the will of said deceased, and for judgment against him and the sureties on his bond for any balance found due the estate. There was judgment for defendants in the probate court, which was affirmed in the circuit court, and plaintiff appeals. Reversed.

W. W. Fry, for appellant. Geo. Robertson and John M. Barker, for respondents.

BLACK, C. J.

This was a proceeding commenced in the probate court of Audrain county, under section 48, Rev. St. 1889, to compel defendant Gordon, as late executor of the will of J. J. West, to account with the plaintiff, administrator de bonis non. The probate court gave judgment for the defendant Gordon and the sureties on his bond, who had entered their appearance. On appeal, the circuit court gave a like judgment, and the plaintiff appealed to this court.

The case has been argued in division 1, and also in banc. A question made in the case, and as to which there is a division of opinion, is whether the record before us presents anything for review. It therefore becomes important to state the facts in detail. The record consists of a copy of the transcript certified to the circuit court by the probate court, a copy of the entries made by the circuit court, and the bill of exceptions allowed in that court. The transcript certified to the circuit court discloses nothing but the final judgment of the probate court and the order allowing the appeal. The transcript of entries made by the circuit court discloses the final judgment in that court, the filing and overruling of the motion for new trial, and the order allowing the appeal to this court. All the other matters disclosed by the record appear in the bill of exceptions, and that, too, without any regard whatever to system or order. According to the bill of exceptions, the plaintiff produced the following evidence: An order of the probate court made on the 20th September, 1887, showing that Gordon made proof of "notice of final settlement," and that the settlement was continued. An order of the probate court made on the 28th November, 1887, stating that Gordon "presents his account for his final settlement and resignation, with a balance due the estate of $87.78 in money, and one note on Jack Allen for $60.00, which said executor is ordered to pay over to his successor"; and it is also ordered that he deliver to his successor all title deeds. The paper itself has indorsed thereon, "Examined and approved and filed the 28th November, 1887," signed by the probate judge. An order of the probate court made on the 12th December, 1887, stating that Gordon filed receipt of Emmons, administrator, for the money and property mentioned in the last order. The letters to the plaintiff as administrator de bonis non were issued on the 8th December, 1887, and the order appointing him as such administrator was made on that day. The plaintiff, it will be seen, had not been appointed administrator de bonis non when Gordon made his so-called "final settlement." On the 9th September, 1890, the plaintiff filed his motion in the probate court, asking that court to make an order on Gordon to appear and make final settlement, and that he be required to turn over all money and property in his hands to the plaintiff, and that the order be enforced by execution and attachment against Gordon and the sureties on his bond, whose names are set out in the motion. From a record entry made by the probate court on the 15th December, 1890, it appears Clark, one of the sureties, filed a separate answer. At that time other of the sureties entered their appearance. Gordon appeared and filed "his supplemental settlement," and the plaintiff filed exceptions thereto, claiming that Gordon was still indebted to the West estate in an amount exceeding $6,000. On the same day Gordon filed what is called a "separate answer." The plaintiff read in evidence this "supplemental settlement." It seems to be the same paper filed by Gordon as and for his former alleged final settlement. The plaintiff also read in evidence the separate answer filed by Gordon, in which he says: "He hath already long before this date made a final settlement of said estate, according to law, which was approved by the judgment of the court, and hath never been appealed from, and that he hath fully complied with the said judgment by paying...