Franz' Estate, In re, No. 49361

CourtMissouri Supreme Court
Writing for the CourtDALTON
Citation372 S.W.2d 885
PartiesIn re ESTATE of Sophie FRANZ, Deceased. Oscar E. BUDER, Executor d.b.n. of the Estate of Sophie Franz, Deceased, Appellant, v. G. A. BUDER, Jr., Executor of the Estate of G. A. Buder, Deceased, Respondent
Docket NumberNo. 49361,No. 1
Decision Date11 November 1963

Page 885

372 S.W.2d 885
In re ESTATE of Sophie FRANZ, Deceased.
Oscar E. BUDER, Executor d.b.n. of the Estate of Sophie
Franz, Deceased, Appellant,
v.
G. A. BUDER, Jr., Executor of the Estate of G. A. Buder,
Deceased, Respondent.
No. 49361.
Supreme Court of Missouri, Division No. 1.
Nov. 11, 1963.
Opinion Modified on Court's Own Motion and Motion for
Rehearing or for Transfer to Court En Banc or for
Modification Denied Dec. 9, 1963.

Page 887

James J. Milligan, St. Louis, Buder & Martin, Eugene H. Buder, and Leonard E. Martin, St. Louis, of counsel, for Oscar E. Buder, Executor d. b. n. Estate of Sophie Franz, Deceased.

Charles B. Baron, David Baron, Baron & Freed, St. Louis, for G. A. Buder, Jr., Executor of Estate of G. A. Buder, Deceased, defendant-respondent.

DALTON, Presiding Judge.

This case involves four appeals from the Probate Court of the City of St. Louis to the circuit court of said city. The four appeals to the circuit court were from orders and judgments of the probate court in connection with the administration of the Estate of Sophie Franz, deceased. The appeals were consolidated for trial de novo in the circuit court and they were so tried. Sec. 472.250 RSMo 1959, V.A.M.S. Oscar E. Buder, Executor, d. b. n. of the Estate of Sophie Franz, deceased, has appealed to this court from an adverse judgment of the circuit court entered in the consolidated cause. 1

Sophie Franz died testate on April 14, 1930, and G. A. Buder was duly appointed executor of her estate by the Probate Court of the City of St. Louis and he thereafter, as such executor, filed twenty-six annual settlements in said estate, beginning January 9, 1931, and ending July 23, 1953. On October 6, 1953 he filed his final settlement, together with a memorandum for an order of distribution, and later a supplemental memorandum for distribution dated December 16, 1953. Notice of final settlement was published and the various legatees and their counsel were consulted with reference to said settlement, which settlement was approved October 23, 1958, after Buder's death. On December 26, 1953, the said probate court made an order of distribution in said estate in accordance with the above memorandum and such distribution was made, except for a one-ninth interest. On April 14, 1954, G. A. Buder died, and on April 24, 1954, Oscar E. Buder was duly appointed Executor d. b. n. of the Estate of Sophie Franz, deceased. Thereafter, said executor d. b. n. effected the distribution and transfer of the one-ninth distributive share of G. A. Franz to Edward A. Walsh, Administrator c. t. a., d. b. n. of the Ancillary Estate of G. A. Franz, as per order of the

Page 888

Probate Court of the City of St. Louis dated October 23, 1958, and the order of the Circuit Court of St. Louis County entered September 22, 1958.

Causes bearing Docket Nos. 16,900-E and 18,675-E are appeals of Oscar E. Buder, Executor d. b. n. of the Estate of Sophie Franz, deceased, from orders of the probate court. The appeal in the first case is from an order approving the final settlement of G. A. Buder (now deceased) as Executor of the Estate of Sophie Franz, deceased, as surcharged in the amount of $32,103.22. The settlement was approved by the probate court on October 23, 1958, and the appeal was taken to the circuit court on October 31, 1958, also referred to as November 7, 1958. The appeal in Case No. 18,675-E is from the probate court's order dismissing the exceptions filed on October 31, 1958, by Oscar E. Buder as executor d. b. n. to the final settlement filed on October 6, 1953 by G. A. Buder, Executor of the Estate of Sophie Franz, deceased. The exceptions were overruled on November 14, 1958 (subsequent to the appeal from the approval of the final settlement, as surcharged), and an appeal was taken to the circuit court on November 21, 1958.

Cause No. 15,752-E is an appeal to the circuit court by Oscar E. Buder, personally, as a judgment creditor of the Estate of Sophie Franz, deceased, from the order and judgment of the probate court holding that a judgment entered in the Circuit Court of the City of St. Louis on July 15, 1953, in the amount of $52,686.87 in favor of Oscar E. Buder and G. A. Buder and against the Estate of Sophie Franz, deceased, had been paid and satisfied. A transcript of the judgment had been filed and allowed in said Estate by the probate court and the claim placed in the sixth class of demands.

Cause No. 17569-E is an appeal by G. A. Buder, Jr., Executor of the Estate of G. A. Buder, deceased, from that portion of the order of the probate court surcharging the Estate of G. A. Buder, the deceased Executor of the Estate of Sophie Franz, deceased, with the sums of $6,379.15 on account of commissions disallowed and $25,724.07 on account of additional interest alleged to be due the estate.

The record further shows that on May 27, 1954, and subsequent to his appointment as Executor d. b. n. of the Estate of Sophie Franz, deceased, Oscar E. Buder filed in the probate court a motion under Sec. 461.550 RSMo 1949, V.A.M.S. to require G. A. Buder, Jr., as Executor of the Estate of G. A. Buder, deceased, to account for, pay over and deliver to Oscar E. Buder, as Executor d. b. n. of the Estate of Sophie Franz, deceased, all of the assets of the Estate of Sophie Franz, deceased. In this motion certain specific matters were referred to, to wit: (1) two outstanding checks drawn by the Mutual Bank & Trust Company, as drawer thereof, one in the sum of $24,997.49 payable to the Executor of the Estate of G. A. Franz, deceased, and a check in the amount of $97,500.02 payable to G. A. Buder and the Estate of G. A. Franz, deceased, and subsequently involved in litigation in the Circuit Court of St. Louis County and claimed by Oscar E. Buder as the Executor d. b. n. of the Estate of Sophie Franz, deceased, to be assets of said estate; (2) the matter of the collection of a judgment against said estate in the sum of $52,686.87 in favor of G. A. Buder and Oscar E. Buder; (3) the sum of $33,205.98 alleged to be deposited in a 'bank of St. Louis' and in G. A. Buder's personal account; and (4) the sum of $45,886 with which the former executor is alleged to have charged himself in his final settlement in said estate as filed on October 6, 1953.

In this motion movant prayed for '* * * an order of the Court requiring G. A. Buder, Jr., as legal representative and Executor of the Estate of G. A. Buder, deceased, to account for the real and personal property of the Estate of Sophie Franz, deceased, and particularly such items as are hereinbefore set out, and in such time and such manner as the Court shall order.' An

Page 889

extended reply was filed to this motion on July 7, 1954 by the estate of G. A. Buder, deceased.

The said motion to account and the question of approval of the final settlement of October 6, 1953, were submitted to the probate court on July 19, 1955 and a judgment was thereafter entered on October 23, 1958, as hereinbefore stated, approving the settlement subject to the surcharge of $32,103.22. The probate court also, on November 21, 1958, overruled a motion to set aside the order of October 23, 1958, surcharging the Estate of G. A. Buder, deceased, and an appeal was granted G. A. Buder, Jr., executor of the estate, from the orders of October 23, 1958, and the order of November 21, 1958. Also, on November 12, 1958, Oscar E. Buder, in his personal capacity, was granted an appeal from the order of October 23, 1958, dismissing his personal motion of January 5, 1954, to require the Executor of the Estate of Sophie Franz, deceased, to pay the mentioned judgment of the circuit court as filed in said estate; and the probate court also overruled, on November 14, 1958, the exceptions filed on October 31, 1958, by Oscar E. Buder, d. b. n. of the Estate of Sophie Franz, deceased, to the said settlement, as surcharged, and denied the personal claim of Oscar E. Buder based on the mentioned judgment for $52,686.87. As stated, only Oscar E. Buder, in his representative capacity as Executor d. b. n. of the Estate of Sophie Franz, deceased, has appealed from the judgment entered by the circuit court in the consolidated case.

Appellant says the appeal to this court is from the judgment of the Circuit Court of the City of St. Louis, as entered January 12, 1962, in the consolidated case in favor of defendant G. A. Buder, Jr., Executor of the Estate of G. A. Buder, deceased, and against Oscar E. Buder, Executor d. b. n. of the Estate of Sophie Franz, deceased, and that the appeal involves a claim on behalf of the Estate of Sophie Franz, deceased, as shown by evidence offered on behalf of the estate for amounts totaling $150,647.28 and interest in the sum of $222,677 as computed to January 1, 1960.

It is appellant's theory that the appeal necessarily involves a detailed accounting of the assets of the Estate of Sophie Franz, deceased, and the questioned items relating to the accounting are numerous and involve many details, including a consideration of the original inventory filed in the Sophie Franz Estate, the twenty-six annual settlements filed therein by G. A. Buder, as executor of said estate, in the course of the administration of said estate, also the settlement of October 6, 1953, which was filed as a final settlement. The case also involves a consideration of the audit of all accounts by Peat, Marwick, Mitchell & Co., Certified Public Accountants, upon which audit the final settlement of October 6, 1953 was based, the special audit and report of L. Ray Schuessler & Company, Certified Public Accountants, upon which the appellant relies, the report of Cornell & Company, Certified Public Accountants dated August 14, 1930, which was filed in the Federal court in a cause there pending, and an innumerable number of other documents. The transcript on this appeal contains more than 600 pages, exclusive of more than 100 exhibits that have been filed. Appellant...

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14 practice notes
  • Burger v. Wood, Nos. 8869
    • United States
    • Court of Appeal of Missouri (US)
    • October 9, 1969
    ...that such finding is clearly erroneous. Ramacciotti v. Joe Simpkins, Inc., Mo., 427 S.W.2d 425, 433(11); In re Franz' Estate, Mo., 372 S.W.2d 885, 900(7). Determining that there was substantial evidence from which the trial court reasonably could have found that instant plaintiff's work was......
  • Buder v. United States, No. 17940.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 25, 1966
    ...be guided by the findings of fact and conclusions of state law made by the Supreme Court of Missouri in In re Franz' Estate, reported at 372 S.W.2d 885" (1963). That reported and lengthy opinion, therefore, is of pivotal importance here and provides additional G. A. Buder was appointed exec......
  • Savage's Estate, Matter of, No. 12712
    • United States
    • Court of Appeal of Missouri (US)
    • April 14, 1983
    ...must be adversely affected in his representative capacity as distinguished from his personal capacity. In re Franz' Estate, 372 S.W.2d 885 (Mo.1963); In re Estate of Hill, supra. It has been held a personal representative may not appeal from a judgment determining interests among those clai......
  • State ex rel. State Highway Commission v. Demarco, No. 8900
    • United States
    • Court of Appeal of Missouri (US)
    • August 8, 1969
    ...of the trial court on conflicting evidence, and that the judgment be affirmed unless it is clearly erroneous. In re Franz' Estate, Mo., 372 S.W.2d 885, As indicated, the burden of the appellants' argument on the merits is that they were lessees or sublessees of the property appropriated, an......
  • Request a trial to view additional results
14 cases
  • Burger v. Wood, Nos. 8869
    • United States
    • Court of Appeal of Missouri (US)
    • October 9, 1969
    ...that such finding is clearly erroneous. Ramacciotti v. Joe Simpkins, Inc., Mo., 427 S.W.2d 425, 433(11); In re Franz' Estate, Mo., 372 S.W.2d 885, 900(7). Determining that there was substantial evidence from which the trial court reasonably could have found that instant plaintiff's work was......
  • Buder v. United States, No. 17940.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 25, 1966
    ...be guided by the findings of fact and conclusions of state law made by the Supreme Court of Missouri in In re Franz' Estate, reported at 372 S.W.2d 885" (1963). That reported and lengthy opinion, therefore, is of pivotal importance here and provides additional G. A. Buder was appointed exec......
  • Savage's Estate, Matter of, No. 12712
    • United States
    • Court of Appeal of Missouri (US)
    • April 14, 1983
    ...must be adversely affected in his representative capacity as distinguished from his personal capacity. In re Franz' Estate, 372 S.W.2d 885 (Mo.1963); In re Estate of Hill, supra. It has been held a personal representative may not appeal from a judgment determining interests among those clai......
  • State ex rel. State Highway Commission v. Demarco, No. 8900
    • United States
    • Court of Appeal of Missouri (US)
    • August 8, 1969
    ...of the trial court on conflicting evidence, and that the judgment be affirmed unless it is clearly erroneous. In re Franz' Estate, Mo., 372 S.W.2d 885, As indicated, the burden of the appellants' argument on the merits is that they were lessees or sublessees of the property appropriated, an......
  • Request a trial to view additional results

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