Hoffmeyer v. Mintert, 32582.

• Decision Date: 23 April 1936
• Docket Number: No. 32582.,32582.
• Citation: 93 S.W.2d 894
• Court: Missouri Supreme Court
• Parties: HOFFMEYER et al. v. MINTERT et al.

93 S.W.2d 894

HOFFMEYER et al. v. MINTERT et al.

No. 32582.

Supreme Court of Missouri, Division No. 1.

April 23, 1936.

Appeal from Circuit Court, St. Louis County; Fred E. Mueller, Judge.

Proceedings on exceptions of Marie Hoffmeyer and another to the first and final settlements of Fred Mintert, Jr., and another, administrators of the estate of Fred Mintert, deceased. From a judgment disallowing their exceptions, exceptors appeal.

Affirmed in part, and in part reversed and remanded with directions.

Wm. C. Lochmoeller, of St. Louis, and A. G. Schumacher, of Clayton, for appellants.

A. E. L. Gardner, of Clayton, for respondents.

FERGUSON, Commissioner.

Marie Hoffmeyer, Rose M. Rieser (appellants), Gertrude A. Lammert, and Fred Mintert, Jr. (respondents), brother and sisters, are the children and heirs at law of Fred Mintert, deceased, who died, intestate, in St. Louis county. Each, therefore, is entitled to one-fourth of the net estate, after payment of debts and costs of administration. Fred Mintert, Jr., and his sister Gertrude A. Lammert were appointed administrators by the probate court of St. Louis county. The first or semiannual settlement of the administrators was approved by the probate court on May 29, 1925. On May 18, 1926, the final settlement, theretofore filed, was examined and approved by the probate court; the court found "said estate fully administered" and entered an order "finally" discharging the administrators. At the same term of the court and on June 1, 1926, Marie Hoffmeyer and Rose M. Rieser filed "exceptions to the first and final settlements of the administrators." Upon a hearing in the probate court all of the exceptions were overruled. Thereupon exceptors appealed to the circuit court of St. Louis county, where upon a trial the cause was taken under advisement by the court. On November 30, 1931, the circuit court made a finding against the exceptors and entered judgment disallowing all the exceptions. From that judgment, exceptors have appealed.

The exceptions, eleven in number, briefly stated are: (1) That an error of $382.23 in computation appears in the first or semiannual settlement; (2) that certain credits, which are listed, aggregating $12,638.79, were improperly allowed the administrators in the semiannual settlement; (3) that a credit for $255 allowed in the semiannual settlement was not a claim against and not chargeable to the estate; (4) that certain other credits, which are listed, not enumerated in exception 2, aggregating $333.94, were improperly allowed administrators in the semiannual settlement; (5) that certain credits, which are listed, aggregating $1,613.54, were improperly allowed to the administrators in the final settlement; (6) "that the credit (in the final settlement) to Marie Hoffmeyer (exceptor) for $7,354.87 and the credit (in the final settlement) to Rose M. Rieser for $7,354.87 do not show for what they were paid, nor have proper vouchers been filed therefor, and exceptors state that they never received the amount above mentioned;" (7) that a credit for the "Blanke note" in the amount of $2,238.60 (in the final settlement) "should not be allowed because administrators have not filed a proper voucher therefor"; (8) "that the balance of $207.95 should not have been reserved for taxes because the administrators will not require this amount for that purpose;" (9) "that the item of $772.35 paid to administrators on first settlement is excessive;" (10) that the administrators failed "to inventory, appraise and account in their settlements" for seven notes (which are listed) secured by deeds of trust and aggregating $13,772 and a claim in favor of the estate for $373.12; and (11) a general allegation that the settlements are not "in proper form," are not "just and true accounts," etc.

Neither of the exceptors testified and the only witness called on their part was the clerk of the probate court who produced and identified the records and files of the court relating to this administration. Exceptors' evidence was thus confined to the files and record of the probate court; the inventory, settlements, the administrators' canceled checks, receipts, and vouchers, a transcript of the record of the probate court showing the various orders of that court, and certain other records introduced merely by reference to book and page. The settlements and certain orders of the court are shown in the record brought here, but the numerous accounts, claims, canceled checks, vouchers, receipts, etc., which were in evidence and presented to and examined by the trial court are not shown in the record here. We mention this in eliminating exceptions 6 and 7. The administrators asked and were allowed credit in the final settlement for $7,354.87 paid to exceptor Marie Hoffmeyer and for a like amount to exceptor Rose M. Rieser. The sixth exception goes to these two credits and it is stated therein first that "proper vouchers" therefor had not been filed, not that no receipt or voucher was filed, and then the charge is made that "exceptors never received" the amounts credited. Despite the serious allegation thus made neither of the exceptors testified and such receipts or vouchers as were filed in support of the credits were before both the probate court and the circuit court and in both courts the exception was overruled. No substantial evidence appears tending to sustain the exception. What we have said about the vouchers or receipts filed and the opportunity of the trial court to examine and pass on same applies also to the seventh exception, nor do we find any evidence in the record here bearing on either the third or the eighth exception. There was uncontradicted evidence on the part of the administrators tending to explain and refute the charge made by the tenth exception from which the trial court could have found, as it did, against exceptors thereon. The eleventh exception is a generality presenting no specific objections. Further, though some generalities appear in the argument which might be taken as referring to some phase of exceptions 3, 6, 7, 8, 10, and 11, appellants have not elected to brief or present them here on appeal and we therefore treat them as abandoned. This leaves for review exceptions 1, 2, 4, 5, and 9.

We shall consider exceptions 2 and 4 together as they involve the same proposition; both challenge certain credits, which are listed, allowed the administrators in the first settlement. It is not alleged that these items were not just claims or proper charges against the estate or that the amounts for which credits were allowed are not correct. Exceptors' contention is that the administrators are not entitled to the credits listed in exceptions 2 and 4 (allowed in the first settlement) and must stand charged with, and account to the estate for, the aggregate amount thereof, $12,972.73, because the claims were paid without being presented as demands to and allowed by the probate court. Apparently the first settlement was filed and approved on the same day, May 29, 1925. The credits, which these two exceptions challenge, are set out in the settlement under various dates from October 20, 1924, to May 16, 1925, inclusive. The record, however, does not show that they were presented as demands against the estate and allowed by the probate court until the date of the first settlement, viz., May 29, 1925. On that date several orders relating to this estate were made by the probate court. One order recites:

"Now come the claimants herein and present their respective demands against the estate of said deceased and the Administrators duly waive the service of notice on said respective demands, and said demands are submitted to the Court upon the proofs adduced on behalf of each demand respectively, and the same are respectively allowed against the estate of said deceased and classified by the Court in manner following: (The claims challenged in exceptions 2 and 4 are then set out, the name of each claimant, the amount of his claim, and the class to which the claim is assigned, being listed respectively.)

"Notice on the above foregoing demands waived in open court."

A witness for the administrators testified that on the day the foregoing order and judgment was entered by the probate court the two exceptors and the two administrators, being all of the heirs of Fred Mintert, deceased, were present in the probate court, by prearrangement, and that the claims, allowed in this order and judgment, and all credits and charges against the estate appearing in the first settlement, were examined and unanimously approved by them, in a joint conference, prior to the hearing thereon and allowance by the court. This testimony is uncontradicted. Nevertheless in the face of the foregoing judgment of the probate court allowing the claims exceptors contend the administrators are not entitled to credit therefor though receipts and vouchers, filed with the settlement and presented to and approved by both the probate court and the circuit court, evidence the payment of the claims by them.

Section 284, R.S.1929 (Mo.St.Ann. § 284, p. 177), gives an appeal to the circuit court "from the decision of the probate court * * * on all demands against an estate exceeding ten dollars." Said section further provides: "And the right of appeal herein provided for shall extend to any heir, devisee, legatee, creditor or other person having an interest in the estate under administration." Another statutory remedy relating to the allowance of claims against an estate, by the probate court, is provided by section 212, R.S. 1929 (Mo.St.Ann. § 212, p. 137): "If any executor, administrator, heir or creditor of an estate shall, within four months after any demand shall have been allowed, file in the office of the probate court the affidavit of himself or some credible person, stating that the affiant has good reason to believe, and does believe, that such demand has been improperly allowed,...