Harter v. Petty
| Decision Date | 21 December 1915 |
| Citation | 181 S.W. 39,266 Mo. 296 |
| Parties | JAMES W. HARTER v. WILLIAM T. PETTY et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. -- Hon. Alonzo D. Burnes, Judge.
Affirmed.
W. S Herndon for appellants.
Appellant submits that the sheriff's deeds, upon which plaintiff bases his right to recover in this case, did not convey any title for the following reasons: (1) The probate court was without jurisdiction to make the order, in this: There must be a finding at some settlement that there are sufficient funds in the hands of the executor or administrator, after paying all debts and costs, to pay legacies or distributive shares before the court can make such order. Sec. 246, R. S 1909. In order for the court to determine that there are sufficient funds, the time for proving up claims against the estate must have expired. The time had not expired when this order was made, for the reason the notice of grant of letters was not published until April, 1909. Sec. 191, R. S. 1909; Clark v. Sinks, 144 Mo. 449; State ex rel. v Grigsby, 92 Mo. 419. (2) The order was not made at a settlement. There is no provision of the statute which gives a legatee the right to sue for a legacy in the probate court by giving the executor notice that he will apply for such order. The first annual settlement was made May 12, 1909, and the second on June 22, 1911. (3) There was no finding by the court that there were sufficient funds in the hands of the executor, after paying all demands and costs, with which to pay the legacy. Sec. 246, R. S. 1909. Counsel for Tucker recognized that such a finding was jurisdictional and made that averment in their motion. The court did not even sustain the motion, but simply ordered the legacy paid with interest. Brown v. Glover, 158 Mo.App. 399. Probate courts are courts of limited jurisdiction and nothing is presumed. Record must show affirmatively that it had jurisdiction. Gibson v. Vaughn, 61 Mo. 418; Strouse v. Drennan, 41 Mo. 289; State v. Metzger, 26 Mo. 447; Ex parte O'Brien, 127 Mo. 447; Cloon v. Beatie, 46 Mo. 391; Rohland v. Railroad, 89 Mo. 180. The averment in the motion of Tucker, filed in the probate court, could not supply the necessary finding in the order. Orchard v. Store Co., 225 Mo. 470. (4) The order for the payment of the legacy was void, for the reason that it allowed interest from December 21, 1908. The filing of the motion on the 14th of February, 1910, was the only evidence of a demand for the payment of the legacy. If the executor was chargeable with interest, it would be due the estate and not the legatee. The date from which interest was allowed was just one year from the date of letters, and no executor can in any event be compelled to pay a legacy before the expiration of two years. Sec. 245, R. S. 1909. (5) The only power which the probate court had was to order the payment of the legacy when the conditions existed which gave it the power to act. It had no power to give judgment for interest. Sec. 246, R. S. 1909. (6) The motion of James H. Tucker asked for the payment of the legacy of one thousand dollars and interest thereon and the order of the court for the payment of that legacy, and interest thereon from December 28, 1908, stated in the costs named on the execution to be $ 81 was in excess of the jurisdiction of the probate court. The statute only gave the probate court jurisdiction when the proper conditions existed to order the payment of the legacy. While that order might bear interest from date of refusal to pay, the court had no power to allow interest and it made the whole order void. 1 Am. & Eng. Ency. Law (2 Ed.), p. 1066; Smith v. Knowlton, 11 N.H. 191; Camp v. Woods, 10 Watts (Pa.), 118. The notice served on the executor and the motion filed by Tucker asked for the allowance of interest. The court, in acting upon this motion and allowing interest, was assuming jurisdiction exceeding that given it by law, and prohibition would lie. State ex rel. v. Aloe, 152 Mo. 483; State ex rel. v. Wood, 155 Mo. 445; State ex inf. v. Talty, 166 Mo. 552; Sec. 246, R. S. 1909. (7) The execution was void for two reasons, among others, to-wit: (a) Section 235, R. S. 1909, provides that if any executor or administrator fail to pay, when demanded, execution may issue. The record shows that a copy of a written demand was delivered to the executor by the sheriff. This written demand did not authorize the sheriff to collect the money, and his receipt would not have protected the executor, or been a legal voucher, on a settlement. Simply handing the executor a copy of a written demand, signed by Tucker's supposed attorney, is not such a demand as would authorize the issue of an execution, especially on the same day. (b) The same section provides that the execution shall issue on application of the creditor, and section 254 makes it applicable to legatees. The record does not show that such application was made, nor does the execution so state. The same section provides that such execution shall issue against such executor or administrator. The execution was against William T. Petty, simply. (8) The order made on the 17th of July, 1911, on the application of the executor, for distribution of $ 4,200, excepted James H. Tucker et al., on account of a suit against them in the Linn Circuit Court. This shows that the legatee, James H. Tucker, was indebted to the estate, at least that he was sued by the executor. If the court will take judicial notice of that suit, which was finally adjudicated by the Kansas City Court of Appeals, and is reported in 166 Mo.App. 98, it may throw some light on the controversy between the executor and Tucker. (9) No suit can be maintained against any executor or administrator for the payment of a legacy or distributive share until all claims are barred by the special statute or limitations. In this case no claims against the estate of James Ward, deceased, were barred until two years after the publication of notice in April, 1909, that notice not having been published within thirty days from the date of letters. Sec. 191, R. S. 1909; Wiggins v. Lovering, 9 Mo. 262; Wilson v. Gregory, 61 Mo. 421.
Lavelock & Kirkpatrick for respondents.
The principal defense, and the only defense offered by appellant, is a collateral attack upon a judgment and order of the probate court and the proceedings thereunder. (1) A collateral attack, as defined by the authorities, is any proceeding not instituted for the express purpose of annulling, correcting or modifying a judgment or decree. Johnson v. Realty Co., 167 Mo. 341; State v. Jeager, 157 Mo.App. 339. (2) In collateral proceedings, no inquiry can be had as to errors of either fact or law. The judgment is conclusive as to these. Hope v. Blair, 105 Mo. 94. (3) Appellant, in the trial of this cause, offered in evidence Exhibit "D", being the motion filed in the probate court by James H. Tucker, praying for an order on the executor of the estate of James P. Ward, deceased, to pay legacy bequeathed to the said James H. Tucker. In this proceeding, in view of the judgment rendered thereon, the silence and non-appearance of the appellant thereto, the law conclusively presumes that the court then found that all the debts, demands and special legacies of said deceased, except the legacy to James H. Tucker, had been paid in full, that there yet remained an unexpended amount in the hands of said executor in the sum of $ 8750, and that the notice of letters had been published as required by law. In re Tucker, 74 Mo.App. 334; State v. McCord, 124 Mo.App. 73; State v. Searcy, 39 Mo.App. 401. (4) The execution issued May 24, 1910, was against the executor of the last will and testament of James P. Ward, deceased, as directed by statute, yet it was against W. T. Petty, who was such executor, and it was against said W. T. Petty individually, and not in his trust capacity, hence it was properly issued against W. T. Petty, who was such executor. Sec. 235, R. S. 1909. (5) Where the record of the probate court fails to recite a finding as to the facts, but shows that the court exercised jurisdiction, the presumption is that it found the facts necessary to give it jurisdiction. State v. McCord, 124 Mo.App. 73. (6) The probate court was not required to make any record finding as to the sufficiency of funds, the payment of demands and costs, or the publication of the notice of letters. State v. McCord, 124 Mo.App. 73; State v. Searcy, 39 Mo.App. 401; State v. Dugan, 110 Mo. 145; Livingston v. Allen, 83 Mo.App. 298. (7) A judgment which is not void as it appears from the record, is not subject to collateral attack. Myers v. McRay, 114 Mo. 382. (8) Errors, if any, either in law or fact, were merged in the order of the probate court, directing W. T. Petty to pay the legacy bequeathed to James H. Tucker, and are no longer the subject of judicial inquiry. Covington v. Chamblin, 156 Mo. 587.
-- The plaintiff is the grantee of J. H. Tucker, who acquired a sheriff's deed to forty acres of land theretofore belonging to defendant W. T. Petty, who was the executor of the will of J. P. Ward and charged with the payment of a legacy to the said Tucker of one thousand dollars.
The will of J. P. Ward was probated December 21, 1907, on which day letters testamentary issued to the executor, who omitted to give notice thereof by publication until 1909, and made his first annual settlement in May, 1909. On February 14, 1910, the probate court, on the application of the legatee, ordered the executor to pay the amount of the legacy, less a collateral inheritance tax of $ 50, to-wit, $ 950, with interest from the twenty-first of December, 1908.
Due notice was given to the executor of the application for this order on...
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