Fenix v. Fenix's Adm'r

• Decision Date: 31 October 1883
• Citation: 80 Mo. 27
• Parties: FENIX et al., Appellants, v. FENIX'S ADMINISTRATOR.
• Court: Missouri Supreme Court

80 Mo. 27

FENIX et al., Appellants,

v.FENIX'S ADMINISTRATOR.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Dallas Circuit Court.--HON. R. W. FYAN, Judge.

REVERSED.

A. S. Smith and F. P. Wright for appellants.

Smith & Krauthoff with Nixon & Wallace for respondent.

MARTIN, C.

The issues in this case arise upon a motion by the widow and heirs of a decedent to set aside an order of sale of real estate and disapprove a report of sale made by the administrator. The motion was filed in the probate court on the 12th day of February, 1879. It appears from the evidence that William L. Fenix died in 1871, leaving the real estate in controversy, and that the complainants are his children and widow. On the 1st day of September, 1871, his estate was taken in charge by Jeremiah W. Cheek, as public administrator of Dallas county, but full administration was not effected by him. James L. Southard succeeded him as administrator de bonis non, and as such is the party defending the motion of the widow and heirs.

On the 17th day of May, 1878, the administrator filed his application in the probate court, alleging a deficiency of personal assets to pay the debts, and asking for an order of the court authorizing him to sell the real estate now in dispute. On the same day the court made an order of publication of notice to all interested, in the usual form. This notice was published the requisite length of time. On proof of such publication the court made its order for sale of the real estate. This order was made on the 12th day of August, 1878, and after reciting publication of the notice, goes on to say: “And it being proved to the court that there is not sufficient personal estate and effects of said deceased charged with payment of debts, and not sufficient assets in the hands of said administrator to pay the debts due by said estate, it is ordered that the said James L. Southard, as such administrator, do, on the 11th day of November next” sell at the place and in the manner therein stated the said real estate. On the 11th day of February, 1879, the administrator filed a report of his sale under the order, in which he says, that he made sale of the land on the 11th day of November, 1878, to different persons for the aggregate sum of $1,114.50. On the 12th day of February, 1879, and before any action was taken on the report, the complainants herein appeared in court and according to the entry then made filed their “motion to set aside said sale of land and order for said sale, with all other proceedings therein.” This motion is in writing, and besides irregularities in the petition, order, proof of notice and other matters of form suggested therein, proceeds to set out facts tending to show that the order of sale was erroneously granted. It alleges that the former administrator received sufficient personal assets to pay all the debts due by the deceased, and that he squandered the same; and that the debts referred to in the application for the order of sale were in truth paid off by the former administrator, and that the allowances of said debts were procured by collusion between said former administrator and the parties claiming the same. It is also alleged in general terms that the present administrator is seeking and designing to defraud the complainants, and that the lands which he sold for $1,146.50 are worth $7,000.

To this motion the administrator filed an answer in writing denying everything. According to the record the parties appeared in person and by attorney, “and matters of evidence being heard, the court finds the issues for James L. Southard, administrator de bonis non of the estate of Wm. L. Fenix, deceased, and orders approval of sale of lands.” An appeal was taken by complainants to the circuit court where, after a continuance in behalf of the administrator, the motion came on to be heard.

To sustain the issues on their part the complainants offered to prove, by the records and files relating to the administration of the estate, that the former administrator had received personal assets to the amount of $8,000, and that there were only $2,100 of debts due by the estate. They also offered to prove that the former administrator had embezzled and converted to his own use a large amount of the personal assets of the estate; and that but for said embezzlement there would have been abundance of assets to satisfy all the debts. They also offered to prove that the debts, for payment of which the sale had been ordered, had been paid off before application for the order. It was admitted by Mr. Southard that he was one of the bondsmen of the former administrator when he took charge of the estate. To all the evidence contained in these offers the administrator objected, on the ground that the complainants could not go behind the order of sale; that when notice was given to all parties interested in said land to appear and show cause why an order of sale of the land should not be made, and they failed to appear and show cause, they lost their day in court. It is argued that they should have appealed from the order of sale. The court sustained the objection of the administrator and excluded the evidence, and found the issues in favor of the defendant and approved the sale. From this action of the court the...