In re Carlin's Estate
| Decision Date | 07 December 1931 |
| Citation | 47 S.W.2d 213,226 Mo.App. 622 |
| Parties | IN RE ESTATE OF LENA CARLIN, DECEASED; v. H. V. DeARMOND, EXCEPTOR, RESPONDENT EFFIE J. BACON, ADMINISTRATRIX, APPELLANT, |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Cole County.--Hon. Henry J Westhues, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Irwin & Bushman for appellant.
Ira H Lohman and Sam S. Haley for respondent.
This proceeding arose upon exceptions filed by respondent to the final settlement of appellant as administratrix of the estate of Lena Carlin. The probate judge was disqualified and certified the case to the circuit court under section 2053, Revised Statutes 1929. The objections to the final settlement were directed to fifty-one specified items of disbursement for which the administratrix had claimed credit. All of said objections were overruled and denied except an item of $ 210, paid out in distribution, and items aggregating $ 1250, paid attorneys for the administratrix, together with the sum of $ 336.70, disbursed by her for the cost of a bill of exceptions and printing abstract and briefs in an appealed case. The administratrix was charged with these sums and was allowed credit in the sum of $ 400, for attorneys' fees in the present proceeding and for services in making final settlement and other services to the estate. From the judgment of the circuit court based upon such finding the administratrix duly appealed and respondent did not appeal. The inquiry, therefore, upon this appeal will be limited to the propriety of the judgment rendered against the administratrix, and a statement of pertinent facts disclosed by the record is the following.
Lena Carlin died intestate April 21, 1924, and letters of administration were issued to Effie J. Bacon, appellant, April 24, 1924; said letters were issued upon request of sisters, a brother, and children of a deceased brother, the nearest of kin known at the time. Publication of letters was made within ten days and the administration proceeded. The inventory and appraisement showed personalty of the value of $ 4516.29, and real estate of the value of $ 13,500. Inheritance tax was assessed and paid, and the administratrix continued in the collection of assets and payment of demands and by written request of the known heirs took possession of the real estate which she repaired from time to time and rented and collected rents when she could, which were commingled in her account as administratrix. This process continued until more than one year had elapsed, and upon the eve of final settlement and distribution one DeArmond, the respondent herein, appeared and on May 4, 1925, filed a suit in the circuit court against the administratrix and all the collateral heirs of Lena Carlin. The petition in said suit alleged that DeArmond was the adopted son and only heir at law of the said Lena Carlin and the owner of and entitled to all of the property of which she died seized, and a judgment was sought to that effect. The administratrix employed legal counsel and filed her separate answer which raised an issue upon the decisive facts alleged in the petition. It does not appear that any other defendant to that suit filed answer thereto. The contest was hot and prolonged and resulted in a judgment which found and decreed that the deceased and her husband had entered into an oral contract of adoption; that said contract had been performed, and that DeArmond was in fact the adopted son of the deceased who died intestate without issue of her body, and that he was her sole heir and entitled to the whole of her estate remaining for distribution upon final settlement, after payment of lawful claims and the costs of administration. The administratrix appealed to the Supreme Court where the judgment was affirmed. [Carlin v. Bacon, 16 S.W.2d 46.]
During the pendency of this litigation the administratrix had incurred and paid attorneys' fees in a total sum of $ 1250 for services therein and for all other services to the estate, and also the expenses incident to the appeal, all of which were disallowed to her in the judgment now under review.
In reference to the different items of attorneys' fees paid, the record contains evidence that one item of $ 250 was allowed by the probate court and paid November 12, 1925. The final settlement shows this sum in two items of $ 125, each paid to two of the attorneys of the administratrix. The record also shows that attorneys for the administratrix filed a claim for legal services rendered in the DeArmond case for the sum of $ 600; that the probate judge certified that the sum was allowed April 8, 1926, and this claim was paid by the administratrix on the same day. Later, October 29, 1928, the administratrix paid to her attorneys the further sum of $ 400 for services in the same law suit. There was no motion or claim filed for this allowance and there was no order of allowance for this sum made by the probate court. One item of $ 101.25, had been allowed and authorized to be paid the court stenographer for the bill of exceptions in the appeal to the Supreme Court. The remainder of the expenses of appeal were paid by the administratrix without allowance.
On March 28, 1925, the administratrix made distribution of $ 210 among seven collateral heirs. This money was derived from the collection of rent upon real estate. She states that she did not know what to do with it; that she asked the probate judge who told her that the money belonged to the heirs and to give it to them. There is no claim that there was any order for partial distribution.
OPINION.The opinion will be limited to errors assigned by appellant, and the propriety of the judgment in so far as it is against the interest of the exceptor will not be questioned. [Turner v. Hine, 297 Mo. 153, 248 S.W. 933.] There is no cross-appeal and respondent will not be heard to complain of alleged errors not called to the attention of the trial court by motion for a new trial and to this court by proper appeal. The rule applies equally to an action in equity and to a suit at law. [Waters v. Gallemore, 41 S.W.2d 870, 872, and cases cited.] The only questions before us pertain to the propriety of the judgment of the trial court in so far as it surcharged the settlement of the administratrix with the items of $ 210 distributed; $ 850 paid in attorneys' fees, and $ 336.70 paid in expenses of appeal, and as to how the final account should be stated.
The administratrix claimed credit in her final settlement for advancements or partial distribution in the sum of $ 30 each to seven named distributees. These payments were made to the collateral heirs March 28, 1925, and within a period of one year after the issuance of letters and without any order of court for distribution and at a time when the administratrix was under no obligation to distribute the assets. The period for the proof of debts had not expired. The administratrix could not have been compelled at that time to make distribution in the absence of a refunding bond from the distributees. Such bond could be waived at the risk of the administratrix upon distribution, but when such waiver is made it is at the risk of the party waiving it. [Sec. 237, R. S. 1929.] Verbal direction from the judge of the probate court, if any such was given, would be of no avail to justify a distribution. The administratrix could have sought and no doubt obtained an order of court for partial distribution and such order in the absence of a timely appeal would have become a final judgment. [Peper v. Bell, 286 Mo. 126, 226 S.W. 550.] Such order was not obtained and the administratrix made the distribution at her own hazard. She was not required or compelled to make it at the time and did so without any legal authority. The fact that the administratrix was not aware of any claim on behalf of respondent does not protect her. The assets were in her hands as trustee for the lawful owner, and if she could legally, on her own motion, distribute a part of the assets to supposed owners, she could have distributed all of them. Appellant contends in reference to this item that all debts had been paid, the estate collected, and that it was the duty of the administratrix to distribute with or without an order of court. In the light of the facts...
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