In re Clinton's Estate

• Decision Date: 27 November 1909
• Citation: 123 S.W. 1
• Parties: In re CLINTON'S ESTATE. CLINTON et al. v. CLINTON et al.
• Court: Missouri Supreme Court

123 S.W. 1

In re CLINTON'S ESTATE CLINTON et al. v. CLINTON et al.

Supreme Court of Missouri, Division No. 1.

November 27, 1909.

1. COURTS (§ 231)—APPELLATE JURISDICTION — "SUIT"—PROCEEDINGS TO DISCOVER ASSETS.

Rev. St. 1899, § 74 (Ann. St. 1906, p. 362), provides that, on the filing of an affidavit alleging cause to believe that an administrator has withheld assets, the court may cite and compel him to appear by attachment. Section 75 provides for the examination of the administrator and witnesses on oath, provided interrogatories shall be filed and answered in writing by the parties cited, and sections 77 and 78 (pp. 363, 364) provide for a trial of the issues raised on such interrogatories. Held, that such a proceeding was a "suit" between the affiant and the administrators, and, where the amount involved was from $12,000 to $15,000, jurisdiction of an appeal from the circuit court was in the Supreme Court, and not in the Court of Appeals.

2. EXECUTORS AND ADMINISTRATORS (§ 85) — DISCOVERY OF ASSETS.

A proceeding against administrators to recover alleged withheld assets authorized by Rev. St. 1899, §§ 74, 75, 77, 78 (Ann. St. 1906, pp. 362-364), is not limited to a mere discovery of assets, but describes a summary method of bringing property into the estate, and is therefore available for the trial of property rights in such case.

3. EXECUTORS AND ADMINISTRATORS (§ 85)— DISCOVERY OF ASSETS—INTERROGATORIES— REPLY.

Where, in a proceeding against an administrator for discovery and an accounting of alleged concealed assets, defendant answered interrogatories submitted as required by Rev. St. 1899, § 75 (Ann. St. 1906, p. 363), complainants were entitled to reply to such answers to more clearly define and shorten the issues.

Appeal from Circuit Court, Clay County; J. W. Alexander, Judge.

Judicial settlement of the estate of Nancy Clinton, in which John M. Clinton and others filed an affidavit charging that Thomas F. Clinton and Mary A. Clinton, administrator and administratrix, had concealed assets. From an order of the probate court dismissing the proceedings and from an order of the circuit court sustaining a motion to dismiss an appeal therefrom, and overruling objector's motion in arrest of judgment, they appealed to the Kansas City Court of Appeals, by which the case was certified to the Supreme Court. Reversed and remanded, with directions.

Sandusky & Sandusky, J. W. Callahan, and D. C. Allen, for appellants. H. F. Simrall, for respondents.

GRAVES, J.

The appellants and respondents are the heirs at law of Nancy A. Clinton, deceased, who died intestate August 22, 1903, in Clay county, Mo. Mrs. Clinton seems to have left in land and other property an estate of considerable proportions. On August 28, 1903, respondents, Thomas F. Clinton and Mary A. Clinton, were appointed by the probate court of Clay county as administrator and administratrix of said estate, and qualified as such. Respondents for years, as alleged, had lived with the mother and had been her agents in the transaction of business. On April 16, 1906, J. M. Clinton for himself and as agent for his coappellant filed in the probate court of Clay county an affidavit charging the respondents with the concealment of assets of the estate. The material clauses of this affidavit read: "And affiant further says that Thomas F. Clinton, administrator, and Mary A. Clinton, administratrix, of the estate of said Nancy A. Clinton, deceased, as this affiant has good cause to believe, and does believe, have concealed and are now concealing, and have failed and refused, and are now failing and refusing, to inventory and account for, according to law, or are otherwise wrongfully withholding, certain goods, chattels, money, books, papers, or evidences of debts of said deceased, and now have the same in their possession or under their control, to wit: (1) The sum of nine thousand five hundred dollars (as this affiant verily believes), collected as rents at various times and in various amounts, and of various persons, from the farm in Clay county, Missouri, containing three hundred and twenty acres, commonly called the `Martin A. King farm.' (2) Rents on the home place in Liberty, Clay county, Missouri, or the reasonable value of the use thereof, during the period extending from Aug. 22, 1903, to this day, aggregating six hundred and forty dollars. (3) Cash derived from various sources (but belonging to said estate), other than the rents above stated, but the amount of which affiant cannot definitely state, though he believes it to be a very considerable amount. (4) Sundry items of personal property, consisting in part of a horse, cow, carriage, harness, and household and kitchen furniture, reasonably of the aggregate value of five hundred dollars. Wherefore, affiant prays said probate court to issue its citation to said Thomas F. Clinton and Mary A. Clinton, citing them to appear before said probate court at its May term, 1906, then and there to true answer make to the interrogatories that affiant and said James H. Clinton, or any person or persons interested in said estate, shall exhibit to them, and file in said matter, and otherwise to make answer to such citation as the law provides." In obedience to this affidavit, citation was duly issued on the same day and return thereof made for May 19, 1906, being the sixth day of the probate court of said county for the May term thereof. Later and within proper time 38 interrogatories were duly filed with said court by appellants. On June 18th and during said May term of said court respondents filed their written answers thereto. These written answers were duly denied, practically seriatim in a reply tendered to the probate court by appellants and in which they renewed their claim in their affidavit contained that defendants were secreting large credits due to said estate, to wit, from $12,000 to $15,000, and closed their denial or reply thus: "And wherefore plaintiffs pray the court for all such judgments, decrees, reliefs, proceedings, and directions as are proper and warranted by law under the interrogatories, answers, this reply, and the evidence which shall be taken in said matter. And plaintiffs pray for all other reliefs in the premises." The probate court refused appellants the privilege of filing this reply to the answer, and, on motion of respondents, they were discharged from said proceeding and permitted to go hence without day, with their costs therein expended. By the judgment execution was likewise ordered. From this judgment, an appeal was granted by the probate court to the circuit court. In the circuit court the appellants again tendered, by written motion, the same reply which the probate court had denied them the right to file.

Later in the circuit court the present respondents moved said court to dismiss the appeal by motion couched in this language: "(1) Because the probate court had no jurisdiction to proceed any further after said administrator and administratrix had filed their answers to the interrogatories propounded to them. (2) Because the said administrator and administratrix had never consented, and do not now consent, that any further proceeding in this matter be had after the filing of their answers to said interrogatories. (3) Because neither the probate court nor this court on appeal therefrom has any jurisdiction to hear, try, or determine the pretended issues attempted to be raised by appellants." This motion the circuit court sustained. Appellants then filed their motion in arrest of judgment, which was likewise overruled.

An appeal was granted by the circuit court to the Kansas City Court of Appeals, from which court the appeal has been certified here, upon motion of appellants challenging the jurisdiction of that court on account of the amount involved. Respondents still contend that the jurisdiction is with the Court of Appeals. We have therefore two questions: (1) As to our jurisdiction; and (2) as to whether or not there was error in the action of the circuit and probate courts of Clay county in refusing a reply to be filed, issues made, and a trial upon such issues. Our first inquiry must be as to our jurisdiction and afterwards to the merits, if we find jurisdiction here. This states the case sufficiently for a disposition of the question involved.

1. If this is a suit or action within the meaning of the law, then there can be no question that the Kansas City Court of Appeals was right in certifying the case here, for the amount involved in the inquiry exceeds $10,000. The statutes are not as plain as they might be, and those involved here are:

"Sec. 74. Proceedings to discover assets— affidavit—citation. If the executor or administrator or other person interested in any estate, file an affidavit in the proper court, stating that the affiant has good cause to believe and does believe that any person has concealed or embezzled, or is otherwise wrongfully withholding any goods, chattels, money, books, papers or evidences of debt of the deceased, and has them in his possession or under his control, the court may cite such person to appear before it, and compel such appearance by attachment.

"Sec. 75. Interrogatories to party cited— proceedings. If the party so cited does not admit the allegations in the affidavit, he shall be examined under oath, after which, at the instance of the administrator or executor, other witnesses may be examined both for and against such party; but before such other witnesses shall be examined, interrogatories shall be filed in writing, to be answered also in writing by the parties cited."

"Sec. 77. Issues upon interrogatories—how tried—judgment, how enforced. The issue upon the interrogatories and answers thereto shall be tried by a jury, or if neither of the parties require a jury, by the court, in a summary manner, and judgment shall be rendered according to the finding and for costs, and if convicted the court shall compel...