Foeste v. Keesee
| Decision Date | 02 April 1940 |
| Citation | 138 S.W.2d 700,235 Mo.App. 521 |
| Parties | ESTHER FOESTE, PLAINTIFF-APPELLANT, v. MABEL FOESTE KEESEE, FRED FOESTE, MONROE FOESTE, SANNIE FOESTE FORNKAHL, BESSIE FOESTE, ELMER FOESTE, CLAUDE FOESTE, JACKIE FOESTE AND EVELYN FOESTE, DEFENDANTS-RESPONDENTS; VANDIVORT-SCHRADER ABSTRACT COMPANY, CAPE COUNTY POST, FRED HARTLE, G. L. HEYDE, J. GRANT FRYE, AND ESTHER FOESTE, APPELLANTS; JOHN McWILLIAMS, ADMINISTRATOR OF THE ESTATE OF CHRIST FOESTE, DECEASED, INTERVENOR-RESPONDENT |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Cape Girardeau County.--Hon. Frank Kelley, Judge.
REVERSED AND REMANDED.
Case reversed and remanded.
R. P Smith for respondent.
(1) The very existence of the interests in the lands in question which gave rise to the right to bring the partition suit, is subject to the debts and expenses of administration in the probate estate. Secs. 306 and 328, R. S. Mo. 1929; Schweer v. Schweer (Mo. App.), 86 S.W.2d 969; Sec 1558, R. S. Mo. 1929. (2) The trial court ruled correctly in ordering a sufficient sum paid into the probate court to satisfy the claims therein, or as nearly so as possible under the circumstances. Sec. 1558, R. S. Mo. 1929, supra; Christman v. Divinia, 141 Mo. 122, 41 S.W. 920; Tanner v. Tanner, 199 Mo.App. 145, 149, 203 S.W 239; Studer v. Harlan (Mo. App.), 109 S.W.2d 687; Mills v. Mills, 141 Mo. 195, 199, 42 S.W. 709. (3) The plaintiff in the partition suit can be held liable for the costs which she incurred in that suit with full knowledge that there was no equity in the real estate subject to partition. Whitsett v. Wamack, 95 Mo.App. 296, 69 S.W. 24.
J Grant Frye for appellants.
(1) The court having ordered partition of the land and having approved the sale, had the power and authority to prevent the distributees or heirs from receiving any of the proceeds until the demands in the probate court were paid, but should have ordered the costs in the partition proceedings paid. Secs. 1558, 1590, R. S. Mo. 1929. (2) Tanner v. Tanner, 199 Mo.App. 145, 203 S.W. 239; Chrisman v. Divinia, 141 Mo. 122, 41 S.W. 920. (3) Dildine v. DeHart, 293 Mo. 393, 239 S.W. 112; Studer v. Harlan (Mo. App.), 109 S.W.2d 687; Collier v. Catherine Lead Co., 208 Mo. 246, 106 S.W. 971.
This is an appeal from an order of distribution of the Cape Girardeau County Circuit Court in a partition proceeding wherein the entire proceeds of the sale in partition were ordered paid to the administrator of the estate of Christ Foeste, deceased, for the purpose of paying debts of the estate, the lands having descended to the plaintiff and the defendants as the widow and heirs of said Christ Foeste. By leave of court the administrator of the estate of Christ Foeste, deceased, filed what is termed an intervening petition, claiming the proceeds in the event of a sale of the land, to discharge debts and demands.
The only question for review is set out in appellant's assignment of error as follows: "The court erred in ordering the proceeds of the sale of the land in partition to be turned over in full to the administrator of the estate of Christ Foeste to be administered by the probate court, without first ordering paid the actual costs and expenses in the circuit court, including such items as the sheriff's fees, the clerk's fees, the abstract fees, the publication fees, and the attorney's fees allowed and approved by the court in the partition proceedings."
No question is raised as to the propriety or amount of the costs and expenses or the authority of the court to allow them and order that they be taxed as costs; the sole question being the authority of the trial court to order that the full amount realized from the sale of the land involved be paid to the administrator without first paying therefrom the costs of the partition proceeding.
Circuit courts have jurisdiction to order partition of real estate, and partition may be had before the final settlement of the estate to the demands of which the land partitioned may be subject, and where partition is begun in the circuit court that court takes exclusive jurisdiction over the real estate. [Daldine et al. v. DeHart, 239 S.W. 112.]
It is provided by section 1558, Revised Statutes 1929, that where the lands have descended to the parties in interest and the estate from which the same has descended has not been finally settled and all claims against it fully discharged, "the proceeds of sale" in cases where sale has been ordered, shall remain and be subject to the claims against the same. Therefore, the real question presented here is, what is meant by "the proceeds of sale?" Does it mean the gross proceeds received by the sheriff from the sale of the lands, or does it mean the net proceeds after payment of the costs and expenses in the partition proceeding? That question is answered by section 1590, Revised Statutes 1929, as follows:
"The court shall direct the payment by the sheriff of all the costs and expenses of the proceedings, together with the present value of any dower interest, to the parties entitled thereto, and the remainder to the parties in interest, their guardians or legal representatives, according to their respective rights, as ascertained by the judgment of the court."
It is very unfortunate that the costs and expenses were so great in this case, especially in view of the fact that the total amount received from the sale of the property is less than would be required by the administrator in order to pay all claims and make final settlement of the estate. However, there is no criticism of the amount of costs or that they were not properly taxed in this case, and presumably they were proper costs and expenses of the proceedings.
If the circuit court acquired jurisdiction to hear and determine the partition proceeding, and that it did was not questioned, then it had authority to allow and tax as costs all proper costs and expenses in the case, and it was the duty of the court to direct the payment by the sheriff of all costs and expenses of the proceeding, and that the remainder, the net proceeds, be paid to the administrator.
In the case of Young v. Young et al., 175 S.W. 585, the interlocutory judgment of the trial court contained this provision: "That the costs and expenses herein be deducted from the proceeds of said sale, and the net proceeds be thereafter distributed as this court shall direct," and one of the parties appealed. The Supreme Court said:
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