In re Claus' Estate

• Decision Date: 04 February 1941
• Docket Number: No. 25371.,25371.
• Citation: 147 S.W.2d 199
• Parties: In re CLAUS' ESTATE. SHEEHAN v. GILLESPIE.
• Court: Missouri Court of Appeals

147 S.W.2d 199

In re CLAUS' ESTATE.

SHEEHAN v. GILLESPIE.

No. 25371.

St. Louis Court of Appeals. Missouri.

February 4, 1941.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Annual settlement of Walter F. Sheehan, public administrator of the city of St. Louis, in charge of the estate of Henry Claus, deceased. From the judgment of the circuit court of the city of St. Louis, approving the settlement, Agnes Gillespie, administratrix ad litem of the estate of Henry Claus, deceased, appeals.

Judgment reversed and cause remanded for further proceedings in accordance with opinion.

Agnes Gillespie, of St. Louis, pro se.

Cox, Blair & Kooreman, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an appeal by the administratrix ad litem of the estate of Henry Claus, deceased, from the judgment of the Circuit Court of the City of St. Louis which was rendered on an appeal to that court from the order of the Probate Court of the City of St. Louis, disapproving an annual settlement of Walter F. Sheehan, Public Administrator, then in charge of the administration of said estate, and ordering that said settlement be surcharged in the sum of $701.70, and be approved as surcharged.

Claus died intestate in the City of St. Louis on October 23, 1933, leaving no personal property whatsoever, but possessed of a parcel of real estate in said city, which was appraised in the inventory of his estate at the sum of $1,500. There were certain debts and obligations which were in due course allowed as proper claims against his estate.

Thereafter, in the total absence of any personal estate, Sheehan petitioned the probate court for an order to sell such real estate to pay the debts, which petition was granted, resulting in the sale of the real estate at a private sale for the sum of $1,750, which was $250 over and above the appraised value of the land as shown in the inventory. It is a conceded fact that such real estate constituted the only asset of the estate by which the debts or allowed claims could be paid; and there is no question but that all required steps were taken by Sheehan, and that the sale was valid and regular in all respects.

In due course, Sheehan filed his annual settlement, showing total receipts in the sum of $1,750, and disbursements in the sum of $1,426.93, leaving a purported balance of $323.07 in his hands. Accompaning such settlement were vouchers signed by the respective payees, showing payment of all the various items of disbursement for which Sheehan had undertaken to take credit in his settlement.

Suffice it to say that such disbursements fell into two categories, the one for the payment of allowed claims for medical bills, funeral expenses, and taxes, in the aggregate amount of $725.23; and the other for the payment of the alleged costs and expenses of administration, including the necessary costs and expenses incidental to the sale of the real estate, in the aggregate amount of $701.70. Chief among the items falling in the category of costs and expenses was one for $512.90, embracing an attorney's fee of $400 for legal services rendered Sheehan in the administration of the estate, and a fee of $100 paid a real estate broker as a commission in connection with the sale of the real estate.

Upon the filing of such settlement, the probate court made an order upon Sheehan to show cause why the settlement should not be surcharged as to all credits save those which had been taken in payment of allowed claims constituting debts due from the estate; and, upon an examination of the settlement, the court allowed only those credits, aggregating the sum of $725.23, which constituted debts or allowed claims against the estate, and disallowed the remaining credits, aggregating the sum of $701.70, which the court lumped together as "administration expenses", and denied in their entirety upon the theory that as the law then stood, the proceeds derived from the sale of the real estate of a deceased person for the payment of his debts could not be diverted and applied to the payment of the costs and expenses of administration.

Sheehan at once applied for and was allowed an appeal to the circuit court from such order surcharging his settlement, whereupon the probate court, evidently regarding Sheehan's adverse interest as creating a situation analogous to that where the sole administrator is himself a creditor of the estate (in which event the court is required to appoint some suitable person to appear and manage the defense), made and entered an order appointing Agnes Gillespie as administratrix ad litem to defend the court's order in favor of the estate in the course of the further proceedings in the case.

At the trial of the case in the circuit court, the entire file of the probate court was introduced in evidence on Sheehan's behalf, and certain testimony was adduced which purported to show that the attorney's fee of $400, one of the items disallowed, had been reasonable for the legal services rendered to Sheehan as detailed in the surcharged statement before the court. Incidentally, no attempt was made to show what portion of such fee had been charged for legal services, if any, incidental to the sale of the real estate, and what for services rendered in connection with other features of the administration, such as the resisting of claims made against the estate and the prosecution of a proceeding to discover assets. Finally the trial court interposed to inquire of Sheehan's attorney whether he knew of his own knowledge that all the items of expense set forth in the surcharged statement had been incurred by Sheehan's office, and upon the attorney's reply that all such expenses had been incured and that receipts were to be found in the files for the greater portion of such items, the taking of evidence was concluded in the case.

Thereafter the court entered its judgment and decision, approving and allowing credit to Sheehan for each and every item of disbursement disapproved and disallowed by the probate court, save for two inconsequential items aggregating $3.55, the one an item of $1.50 paid for the taking of the affidavits of appraisers at the making of the inventory, and the other an item of $2.05 paid for the recording of the administrator's deed to the purchaser of the real estate.

As to all other items included as disbursements in Sheehan's settlement, the circuit court held that the same had constituted proper and reasonable charges and expenses against the estate for which Sheehan was entitled to take credit in his settlement; and from the judgment so entered in Sheehan's favor, the administratrix ad litem of the estate has perfected her appeal to this court in the usual course.

The statute particularly applicable to the case at bar is Section 142, R.S.Mo. 1929, Mo.St.Ann. § 142, p. 88, which as it read prior to the amendment of 1939, Laws 1939, p. 176, merely provided that "if any person die and his personal estate shall be insufficient to pay his debts and legacies, his executor or administrator shall present a petition to the proper court, stating the facts; and praying for the sale of the real estate, or so much thereof as will pay the debts and legacies of such deceased person".

A further statute, Sec. 146, R.S.Mo. 1929, Mo.St.Ann. § 146, p. 94, provides that if the executor or administrator fails to make such application, any creditor or other person interested in the estate may do so upon the observance of certain stated conditions; and a still further statute, Sec. 166, R.S.Mo.1929, Mo.St.Ann. § 166, p. 102, authorizes the probate court to order the real estate sold of its own motion, if, upon the settlement of the accounts of any executor or administrator, it appears that the personal estate is not sufficient to pay the debts and legacies.

In the construction of such statutes, it has been uniformly held that in the case of the...