Goodman v. Griffith

• Decision Date: 21 February 1911
• Citation: 134 S.W. 1051,155 Mo. App. 574
• Parties: GOODMAN et al. v. GRIFFITH.
• Court: Missouri Court of Appeals

134 S.W. 1051

155 Mo. A. 574

GOODMAN et al. v. GRIFFITH.

St. Louis Court of Appeals, Missouri.

February 21, 1911.

1. APPEAL AND ERROR (§ 1022)—QUESTIONS REVIEWABLE — FINDINGS — CONCLUSIVENESS.

The court on appeal may determine for itself the correctness of the conclusion of the referee in involuntary reference and the trial court in proceedings for the settlement of an administrator's account, though the action of the referee and of the trial court will not be lightly disturbed.

2. EXECUTORS AND ADMINISTRATORS (§ 22)— PRESENTATION OF CLAIMS BY ADMINISTRATOR —EFFECT.

An administrator may assume the attitude of a mere creditor against his decedent's estate without forfeiting his office, and, where he presents a claim, the court must as required by statute appoint a suitable person to represent the estate.

3. EXECUTORS AND ADMINISTRATORS (§ 500)— COMPENSATION—FORFEITURE.

The administrator is not thereby deprived of his right to compensation.

4. EXECUTORS AND ADMINISTRATORS (§ 111)— ATTORNEY OF ADMINISTRATOR — RIGHT TO COMPENSATION.

An attorney employed by an administrator does not forfeit his right to compensation for services rendered merely because he represents the administrator and his wife in presenting a claim in their favor against decedent's estate.

5. PAYMENT (§ 74)—EVIDENCE—RECEIPTS.

A receipt is prima facie evidence of the payment therein recited and when uncontradicted is conclusive.

6. EXECUTORS AND ADMINISTRATORS (§ 504)— ACCOUNTS—OBJECTIONS.

An objection to the final settlement of an administrator of his mother, which involves his acts as executor of his stepfather, based on his failure to account for his acts as executor of his stepfather, made by the heirs and legatees of the mother after the final settlement of the estate of the stepfather after the death of the mother, cannot be entertained by the court, but the remedy of the heirs is to proceed under Rev. St. 1899, §§ 74-78 (Ann. St. 1906, pp. 362-364), now Rev. St. 1909, §§ 70-74, authorizing proceedings against executors and administrators to discover assets, or to resist the final settlement of the stepfather's estate.

7. EXECUTORS AND ADMINISTRATORS (§ 509)— SETTLEMENT OF ACCOUNTS — CONCLUSIVENESS.

Mere illegal allowances or omissions of proper debits do not justify the setting aside of a final settlement of an executor or administrator,

nor opening up of matters passed on in approving the final settlement.

8. EXECUTORS AND ADMINISTRATORS (§ 513)— SETTLEMENT OF ACCOUNTS — CONCLUSIVENESS.

A final settlement of an administration has the force of a final judgment, and cannot be attacked collaterally, but can only be reached under charges of fraud by a direct proceeding.

9. EXECUTORS AND ADMINISTRATORS (§ 513)— FINAL SETTLEMENT—RIGHT TO ATTACK BY DIRECT PROCEEDING—PARTIES.

The right to directly attack for fraud a final settlement of administration extends to any person in interest in the estate.

10. EXECUTORS AND ADMINISTRATORS (§ 460) —COMPELLING ACCOUNTING—PARTIES.

The right to call an executor or administrator to account extends to any person in interest in the estate.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Proceedings for the final settlement of James E. Griffith, as administrator of Emily Bralley, deceased, in which Clarissa E. Goodman and others appeared and filed objections. From a judgment overruling the objections and settling the account of the administrator, the objectors appeal. Affirmed.

Ball & Sparrow, for appellants. J. D. Hostetter and J. E. Thompson, for respondent.

REYNOLDS, P. J.

Guided solely by the amended abstract of the record of the proceedings in this cause, filed by counsel for appellants, it is very difficult to make an intelligible statement of exactly what is included as record proper, and what is covered by the bill of exceptions. More than that, it is not quite clear how much of what is in this amended abstract was either in the record proper or even in evidence before the trial court.

Counsel for respondents attacked the original abstract, and again attack this amended one, filed by leave of court, for various defects and omissions of material matter. They are doubtless correct on some of their contentions; but, to put an end to the matter and endeavor to arrive at the very right of the controversy, we have concluded to ignore these objections.

Those counsel are in error, however, in contending that there is no evidence furnished by the record entries proper showing that the bill of exceptions was filed within due time. The abstract, as amended, does show this. Counsel for respondent make the further point that there is nothing in this abstract of the record to show that the case was ever in the probate court of Pike county, and appealed from that court to the circuit court. We do, however, find in the amended abstract under the caption of the title of this cause what purported to be of the record of the probate court of Pike county. These entries show that final settlement of respondent, as administrator of the estate of Emily Bralley, deceased, was filed in the probate court on the 23d of November, 1908; that exceptions were filed to it in that court on the 10th of December; that final judgment was rendered on it by the probate court on the 14th of January, 1909, and an appeal taken to the circuit court January 21st, "and cause certified to the circuit court of Pike county, Missouri." Then follow the record entries in the cause which appear in the circuit court. It is true that it does not appear in the same connection what that final settlement was. But the abstract commences by setting out what purports to be the final settlement of respondent, as administrator of the estate of Emily Bralley, deceased, and the objections to that, and we gather enough from the record to be reasonably sure that it is the settlement and objections to it that were before the probate court and before the circuit court on appeal from the probate court. Counsel for appellant have also incorporated in their amended abstract certain entries as record entries of the probate court of Pike county in the matter of the estate of George L. Bralley, deceased, these pertaining particularly to the filing, on the 12th of February, 1906, in that court of the final settlement of James E. Griffith, as executor. By this it appears that publication having been duly made, the matter of his final settlement was heard, the executor having filed in that court his accounts and vouchers, and that court, "having seen, heard, and examined said accounts and being fully advised in the premises, finds that the assets of said estate have been fully administered, and that there remains no funds in the hands of said executor and belonging to said estate, and said settlement is by the court approved and said executor discharged." Along with this is a copy of the last will and testament of George L. Bralley, by which, after making certain bequests of $1 each to his sisters and their heirs, and a specific legacy of a gold watch and chain to a party named, the testator leaves all the rest, residue, and remainder of his estate to his wife, Emily Bralley, and appoints James E. Griffith as executor. As appellants have inserted this matter in their abstract, we may assume, as against them, that it was in evidence at the trial.

It further appears by the testimony in the case that Mrs. Bralley was the mother of respondent, James E. Griffith, a child by a marriage prior to her marriage to George L. Bralley. George L. Bralley, hereafter referred to as Dr. Bralley, it appears, died on the 5th of April, 1903, and his wife, Mrs. Emily Bralley, died on the 25th of November, 1905. Mr. James E. Griffith appears to have been duly appointed as administrator of her estate. Mrs. Bralley was dead at the time respondent made final settlement as executor of the estate of Dr. Bralley. It further appears that, when respondent filed his final settlement as administrator of the estate of Emily Bralley in the probate court of Pike county, appellants, styling themselves the heirs of the estate of Mrs. Emily Bralley, filed objections and exceptions to the settlement. These are the settlement and objections heretofore referred to, and it is on them that the case is now before us. After objecting to various credits claimed by the administrator, among other items of $60 allowed Messrs. Tapley & Fitzgerald, as attorneys in a certain partition suit, and $100 allowed to J. E. Thompson, Esq., as an attorney's fee for services rendered the administrator in connection with the estate, the principal objection, numbered 8, which was made, is as follows: "Eighth. Your objectors and executors [exceptors?] say that James E. Griffith, administrator of the estate of Emily Bralley, deceased, has not charged himself with property that belonged to the estate, and they say that at the time of the death of George L. Bralley he was indebted to said George L. Bralley, evidenced by a note, the exact amount your objectors and exceptors cannot name, but have reason to believe and do believe, and charge the fact to be, that it was something over three thousand dollars ($3,000.00); that same has not been accounted for in the George L. Bralley estate nor the Emily Bralley estate, and that upon the death of George L. Bralley said note became the property of Emily Bralley, now deceased. Your objectors and exceptors further charge the fact to be that said James E. Griffith, as executor of the estate of George L. Bralley, deceased, in his first annual settlement claims to have paid to Emily Bralley, deceased, the sum of $1,629.14, and has her receipt therefor, and that in his second annual settlement he claims to have paid said Emily Bralley the sum of $1,158.10, the two items aggregating $2,787.24; that said administrator has not charged himself with, but that said money passed into his hands." We are not advised by the abstract as to how many or which, if any, of...