Hewitt v. Duncan's Estate

• Decision Date: 01 December 1930
• Citation: 43 S.W.2d 87,226 Mo.App. 254
• Parties: A. D. HEWITT, RESPONDENT, v. ESTATE OF HENRY C. DUNCAN, APPELLANT, ELIZABETH J. DUNCAN, ADMX
• Court: Kansas Court of Appeals

43 S.W.2d 87

226 Mo.App. 254

A. D. HEWITT, RESPONDENT, v. ESTATE OF HENRY C. DUNCAN, APPELLANT, ELIZABETH J. DUNCAN, ADMX

Court of Appeals of Missouri, Kansas City

December 1, 1930

Appeal from the Circuit Court of Clinton County.--Hon. Guy B. Park Judge.

AFFIRMED.

Judgment affirmed.

Daniel H. Frost, Edward G. Robinson and A. D. Hewitt for respondent.

R. H Musser and Cooper, Neel, Kemp & Southerland for appellant.

CAMPBELL C. Trimble, P. J., absent.

OPINION

CAMPBELL, C.

--In July, 1925, Henry C. Duncan died testate and letters of administration were issued on his estate by the probate court of Clinton county, Missouri, to Elizabeth J. Duncan who thereupon qualified and proceeded to administer the estate. On the 29th day of August, 1928, plaintiff filed a demand against said estate, claiming that he, as an attorney at law, had been employed by said executrix and had rendered service under said employment and that there remained due to him on account of such service the sum of $ 3650, being the reasonable value of his service. Later the said probate court, on application of the executrix, ordered that the cause be certified to the circuit court of Clinton county, Missouri, for hearing and determination, and the cause was thereupon duly transmitted to said circuit court in compliance with that order. Defendant presented a plea in bar which was taken up, heard, and by the court overruled. The evidence to support that plea is that the executrix caused notice of the grant of letters to be timely published, advising all persons having claims against the estate to exhibit them within the statutory period; that later she caused notice of final settlement to be published in which it is recited that final settlement of said estate would be made in the probate court of Clinton county, Missouri, on the 9th day of August, 1926. A settlement, asserted by appellant to be a final settlement was, in fact, filed on May 31, 1928. The probate court entered a general order of continuance in said estate on July 28, 1926, and at its November term, 1926, entered an order in which it is recited that settlement is continued until the next regular term of the court. A like order was entered on April 28, 1927. No further order was entered in the cause until on the 31st day of May, 1928, when the court entered its judgment approving the settlement that day filed by the executrix, reciting in the order the settlement had been examined by the court and that it appeared that the estate had been fully administered, and all allowed claims, together with costs of administration, had been paid, and ordered that the executrix be discharged upon filing receipt showing payment of inheritance taxes. The plaintiff's demand was not filed until the adjournment of the term of court at which the aforesaid order was entered. The court overruled the plea in bar, and that ruling is assigned as error.

Appellant relied upon the well established doctrine announced in Crump & Murphy v. Hart & Murphy, 189 Mo.App. 572, 176 S.W. 1089, and numerous other cases, that the judgment of a probate court approving a final settlement is not subject to collateral attack. Respondent says that if notice of the intention to make final settlement is not published as required by statute, then, of course, a probate court would not have jurisdiction to render a judgment approving a final settlement and a judgment thus rendered would be void. This doctrine is also well established. [State ex rel. Toller v. Ennis et al., 7 S.W.2d 737, 739; State ex rel. v. Holtcamp, 266 Mo. 347, 181 S.W. 1007, 181 S.W. 1007.] It is also well settled that until a decree is entered in the probate court discharging the executor or administrator, the office continues. [Francisco v. Wingfield, 161 Mo. 542, 564, 61 S.W. 842.] If the notice of final settlement was not published as required by law, the office of the executrix continued and plaintiff's demand was timely filed.

The question for decision on this point is, was notice of final settlement published as required by statute? The publication advised interested parties that final settlement of the estate would be made on August 9, 1926. The final settlement (so called) was sworn to on May 26, 1928, and filed on May 31, 1928. The first line in that settlement is "to balance settlement May 11, 1927, $ 18,250.05." It is then shown that the executrix thereafter collected two items, the total of which is $ 10,710. In the credit column of the settlement various sums are set forth without stating when the same were paid. The total of these items is the same as the total in the debit column. It is not recited in this settlement that the estate had been fully administered nor that all debts of the estate have been paid. The settlement, upon its face, indicates that there was a settlement in May, 1927; that after that settlement more than $ 10,000 had been received by the executrix. If settlement was made in May, 1927, then the notice that final settlement would be made on August 9, 1926, could not apply to the settlement filed May 31, 1928, and the case would fall within the rule announced in State ex rel. v. Ennis, supra. But regardless of that question the notice that final settlement would be made on August 9, 1926, was not sufficient to confer jurisdiction on the probate court to render the judgment approving the settlement filed May 31, 1928. [Brashears v. Hicklin, 54 Mo. 102, sec. 229, p. 109, Laws 1923.] The conclusion stated, is by parity of reasoning supported by the holding in Walser v. Gilchrist, 220 Mo. 314, 119 S.W. 413, to the effect that if a judgment in partition orders that the sale be made during a specified term of the court, a sale made thereunder at a subsequent term is void. The court correctly ruled the plea in bar.

The cause was certified by the probate court to the circuit court under the provisions of section 2549, Revised Statutes 1919, which provides that the court to which the cause is certified, "shall hear and determine the cause." After the ruling on the plea in bar defendant demanded trial by jury on the issues presented by plaintiff's demand. The court announced that the case was not one triable to a jury but that he would call a jury to try the case and return an advisory verdict. Thereupon the jury was chosen, heard the evidence, received the instructions of the court, and returned their verdict advising the court that they found the issues for the plaintiff and assessed "his damage" at the sum of $ 800. The court concluded that his twelve advisors had given him bad advice and that he would not follow it. The verdict was thereupon set aside and the court proceeded to render judgment in favor of the plaintiff for the sum of $ 2500.

Appellant does not assign error to the failure of the court to call a jury but does assign that it was error for the court to hold that the verdict of the jury was advisory only, and that it was error for the court to disregard that verdict and render judgment for the amount the court found to be just and proper. There is much learning in the briefs on the subject of the constitutional guarantee of the right of trial by jury, but the error assigned is that it was proper to submit the question to a jury and error for the court to disregard the verdict returned by the jury.

If the case is not triable to a jury, then the court had the right to disregard the verdict and render the judgment complained of.

The decisions are all one way, and to the effect that the right of trial by jury, as heretofore enjoyed, shall remain inviolate, "mean the right of trial by jury as it existed at common law." [Bates v. Comstock, 267 S.W. 641, 644.]

"And in the absence of any statutory provision therefor, the right to a trial by jury cannot be demanded by a litigant in probate proceedings." [Pearson v. Haydel, 87 Mo.App. 495, 500.]

In order to determine the question resort must be had to the various statutes that throw light on the subject.

The case was certified from the probate court to the circuit court on motion and thus retained its probative character. [Keele v. Keele, 118 Mo.App. 262, 279, 94 S.W. 775.]

The record furnished to this court by appellant recites that plaintiff introduced evidence in support of his claim. On appeal this court must proceed upon the theory that the amount allowed by the trial court was reasonable and proper, provided the court was not bound by the verdict of the jury.

While the plaintiff's claim is in the form of an ordinary demand, it is revealed therein...