Hanley v. Holton

• Decision Date: 09 July 1906
• Citation: 96 S.W. 691,120 Mo. App. 393
• Parties: HANLEY v. HOLTON.
• Court: Missouri Court of Appeals

96 S.W. 691

120 Mo. App. 393

HANLEY v. HOLTON.

St. Louis Court of Appeals. Missouri.

July 9, 1906.

1. APPEAL—DECISIONS REVIEWABLE—FINALITY OF DETERMINATION—PROBATE PROCEEDINGS —EXECUTORS—ACCOUNTING.

Rev. St. 1899, § 278, providing for appeals from the probate court, enumerates cases in which the same may be had, and concludes with a provision that, in all cases where there shall be a final decision of any matter arising under the provisions of the chapter, an appeal is allowed. Held that, where an order of the probate court denying the motion of an administrator pendente lite to require a suspended executrix to make a settlement was a final decision of the matter, the order was appealable.

2. SAME—DECISION OF INTERMEDIATE COURT —MOTION TO DISMISS—DECISION ON MERITS.

Where, on a motion to dismiss an appeal from a probate order, the parties submitted the merits of the proceeding, and the bill of exceptions recited that all of the facts were in evidence or agreed to in addition to the record proper, and that at the conclusion of the hearing of the motion the court announced that it would consider the whole matter, whereupon the motion to dismiss the appeal was sustained, the judgment should be regarded as a judgment on the merits.

3. SAME—REVIEW—ERROR GROUND FOR REVERSAL.

Where, on appeal from a probate order, the circuit court sustained a motion to dismiss the appeal on the merits, the appellate court, on a further appeal, was bound to re-examine the merits under Rev. St. 1899, § 865, providing that the Supreme Court or Court of Appeals shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error materially affecting the merits of the action.

4. JUDGMENTS—CONCLUSIVENESS—CONSTRUCTION.

Under Rev. St. 1899, § 672, providing that no judgment shall be reversed, impaired, or in any way affected for any informality in entering the judgment or making up the record thereof, a judgment, reciting that an appeal from a probate order was dismissed, did not conclusively establish that the case was not determined on the merits, where it was demonstrated beyond controversy that the court considered the whole matter in disposing of the case.

5. EXECUTORS—ACCOUNTING.

Where the letters of an executrix were revoked on the same day they were granted, and she never took charge of any part of the estate, nor attempted to inventory or charge herself therewith, she could not be compelled by an administrator pendente lite subsequently appointed, as authorized by Rev. St. 1899, § 13, to account for any portion of decedent's property, under sections 47 and 48, requiring an executor to account to his successor for assets of the estate in his hands.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Proceeding by Joseph L. Hanley, as administrator pendente lite of the estate of Edward K. Holton, deceased, against Lillian M. Holton. From an order of the circuit court dismissing an appeal by plaintiff administrator, and from an adverse order of the probate court, he appeals. Affirmed.

This proceeding originated in the probate court of the city of St. Louis. The following facts appear in the bill of exceptions: The defendant, Lillian M. Holton, was nominated in the alleged will of Edward K. Holton, deceased, as executrix thereof, and, after said will was admitted to probate in said court, qualified to that office. Letters executory were duly issued to her on December 11, 1902, and on the same day, it having been made to appear to the probate court that a suit had been filed in the circuit court contesting the validity of such will, the probate court recalled said letters, suspended further proceedings thereunder, and thereupon appointed Joseph L. Hanley administrator pendente lite in accordance with the provisions of section 13 of the administration law (Rev. St. 1899). The defendant made no move toward taking charge of the estate other than qualifying as executrix under the will. She made no inventory, nor did she otherwise take any steps under the statute looking to the collection and preservation of the estate. In no manner did she take possession of, or charge herself with any of, the property thereof. This was not occasioned by neglect on her part, however, but resulted from the fact that her letters were revoked or recalled on the same day and about the same hour they were issued and she had qualified thereunder. The plaintiff, upon being appointed and qualifying as administrator pendente lite, proceeded at once to take charge of the estate, inventoried the same, etc., and took such other steps as were necessary under the administration law for an original administration. The administrator pendente lite did not require an accounting from his predecessor, the suspended executrix, but at once made an inventory, published notice, etc., as if he were the original administrator, wholly ignoring the fact that the executrix had qualified and been suspended. This resulted, of course, from the fact that it was well known to all parties concerned that his predecessor had taken no steps with respect to the estate other than merely qualifying to the office of administratrix. The inventory filed by the administrator pendente lite purports to be an inventory of "all of the real and personal estate of Edward K. Holton, deceased." The property is described in detail, and no reference is made to any prior administration. In truth, the proceedings show that all parties viewed the matter and conducted themselves as though nothing had been done under the nomination of the administratrix in the will. Some months afterwards, in May, 1903, the plaintiff administrator pendente lite moved the probate court to compel the defendant, as such suspended executrix, to make a settlement as is provided in sections 47, 48, Rev. St. 1899, to the end that the court might ascertain the amount of money and all other property of the deceased in her hands as such executrix, or that came into her hands and remained unaccounted for up to the time of her suspension, and enforce a settlement thereof with the administrator pendente lite. The defendant was cited to appear, which she did, and upon a hearing the court denied such motion, holding in effect that, she having failed to take any steps under her appointment as executrix toward taking possession of the property of the estate, there was nothing for her to settle, and that, if she had any property in her possession belonging to the estate, it did not appear in any inventory or other record of the probate court, and the proper remedy to ascertain such fact would be a proceeding to discover assets under sections 74-78, Rev. St. 1899. From this ruling of the probate court the plaintiff administrator pendente lite appealed to the circuit court. In that court the defendant moved a dismissal of the appeal, insisting: First, that the case was not appealable; second, that the circuit court had no jurisdiction of the appeal; and, third, that the appeal was not authorized by statute. The bill of exceptions shows that, when this motion came on for hearing in the circuit court, the facts as above set out were "in evidence or agreed to in addition to the record proper," and that, "at the conclusion of the hearing of the motion before the circuit court, the court announced that it would consider the whole matter, whereupon said motion to dismiss said appeal was taken under advisement by the court until, to wit, June 29, 1904, * * * at which time the court sustained said motion and dismissed said appeal." The judgment of the circuit court is to the effect that the appeal be dismissed. Plaintiff, administrator pendente lite, appeals to this court.

W. W. Henderson, W. H. Trigg, and Chouteau Dyer, for appellant. Geo. D. & Geo. V. Reynolds, for respondent.

NORTONI, J. (after stating the facts).

1. Notwithstanding the recital in the bill of exceptions to the effect that the circuit court heard the whole case and "announced that it would consider the whole matter" in disposing of the motion to dismiss the appeal, appellant insists that the motion to dismiss said appeal only was adjudicated by said court, as appears by its judgment, which recites that said appeal was dismissed, etc. It is urged that the case was a proper subject of appeal from the probate to the circuit court, and we are persuaded that this proposition is true. Section 278, Rev. St. 1899, providing for appeals from the probate court, enumerates a number of cases in which the same may be had, and then concludes as follows: "And in all cases where there shall be a final decision of any matter arising under the provisions of this chapter." Now, under this provision, it is obvious that, if the order of the probate court in denying the...