In re Estate of Hamill
| Decision Date | 11 October 1926 |
| Docket Number | 25543 |
| Citation | 287 S.W. 485,315 Mo. 972 |
| Parties | Re Estate of Lula Hamill: Anna L. Hamill, Guardian, v. Eva A. Jones, Executrix, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jefferson Circuit Court; Hon. Elbridge M Dearing, Judge.
Reversed and remanded.
Clyde Williams and E. C. Edgar for appellant.
(1) The court erred in admitting in evidence the final settlement of the estate of J. M. Hamill. (2) The judgment does not designate the amount of recovery, neither does it designate the property to be affected thereby. Secs. 49, 50, 494, 289 290, R. S. 1919; Coulter v. Lyda, 102 Mo.App. 413; 23 Cyc. 789, 793.
Leahy Saunders & Walther and S. M. McKay for respondent.
(1) The point that the court erred in admitting in evidence the final settlement of the J. M. Hamill estate, because there was no connection shown between the estate of J. M. Hamill and the estate of Lula Hamill, is without merit, for the reason that the said settlement showed the amount of $ 7,168.34 due Lula Hamill as distributee. Identity of name raises the presumption of identity of person without further showing. Brooks v. Roberts, 281 Mo. 551; Jones v. Hummelberger-Harrison Lbr. Co., 223 S.W. 63; Huston v. Graves, 213 S.W. 77; Gitt v. Watson, 18 Mo. 274; State v. Kelsoe, 76 Mo. 505; Long v. McDows, 87 Mo. 197; Hoyt v. Davis, 21 Mo.App. 235. (2) The point that the judgment is insufficient has been removed from the case by the action of the trial court in correcting the judgment nunc pro tunc.
Lindsay, C. Seddon C., concurs.
This suit originated in the Probate Court of Jefferson County, upon exceptions filed by Anna L. Hamill as guardian of Lula Hamill, a person of unsound mind, to the final settlement filed by Eva A. Jones, as executrix in charge of the estate of Roscoe B. Jones, deceased, who, at the time of his death, on January 1, 1921, was guardian of the person and estate of said Lula Hamill. Eva A. Jones, as executrix in charge of the estate of Roscoe B. Jones deceased, filed settlement of the estate of Lula Hamill on April 3, 1921. In this settlement, she charged herself as follows:
Original amount due the said estate as shown by in-
ventory filed in probate court
$ 8,000.00
Amount received from sale of merchandise and in-
ventoried in excess of the appraised value
100.00
Amount received in cash from J. M. Hamill estate
Cash deposited in Peoples Bank of De Soto, to the
credit of said estate: the source from which it came
is not known to this affiant, amounting to
4,390.95
Total amount
As against that, she claimed credit in her settlement for items amounting to $ 12,018.75, leaving a balance due the estate of Lula Hamill of $ 890.
The respondent here filed her exceptions to said settlement. These exceptions were four in number. The first exception was to Item 45 of the settlement, the credit of an allowance of $ 750 to the guardian, for services. The ground of the exception was that said Roscoe B. Jones, by illegal and unlawful acts, had caused the estate of Lula Hamill to become insolvent. The second exception was to Item 48, wherein the guardian claimed credit for $ 1,400 as for seven shares of stock in the First National Bank of St. Louis. The grounds of the exception were that said Roscoe B. Jones at no time had charged himself with seven shares of stock, or its equivalent, in the sum of $ 1,400, and also that by his illegal and unlawful acts he had caused the estate of Lula Hamill to become insolvent. The third exception was against Item 49 of the settlement, wherein the guardian had taken credit for "cash deposited in the Peoples Bank of De Soto, subject to claim of guardian, $ 7,555.52." The grounds of this exception were that the Peoples Bank of De Soto was insolvent, and in charge of the Banking Department of the State of Missouri; that the said Roscoe B. Jones, by his illegal and unlawful acts, had caused the estate of Lula Hamill to become insolvent, and had caused said Peoples Bank of De Soto to become insolvent, and knew at the time he deposited said money in that bank that it was insolvent, and that he permitted the funds of his ward to remain uninvested and in said Peoples Bank, when he knew said bank was insolvent; that the said executrix as the legal representative of Roscoe B. Jones, deceased, could not be given credit for said sum, unless she was actually able to turn the same over to respondent. The ground of the fourth exception was that Eva A. Jones, in said settlement, had failed to charge Roscoe B. Jones with the sum of $ 7,168.34, received by him from Lula Hamill, from the estate of J. M. Hamill, deceased. The exceptor claimed that the total amount of assets of said estate was $ 20,077.09; that the amount lawfully disbursed as claimed in said settlement was only $ 2,313.23, and that there was a balance of $ 17,763.86 due to the estate of Lula Hamill.
The printed abstract of the record does not set forth the judgment of the probate court, entered upon said exceptions, but it is merely stated that on May 7, 1921, the probate court disapproved said settlement, and ordered the executrix to make a new settlement and pay over to said Anna L. Hamill the sum of $ 13,233.31. From that judgment, the executrix was granted an appeal to the circuit court. A trial was had, and on June 11, 1923, the circuit court entered its judgment in which it was recited that the exceptions of Anna L. Hamill to the settlement of Eva A. Jones, as executrix of the estate of Roscoe B. Jones, deceased, who was the guardian of the estate of Lula Hamill, were sustained, and it was ordered that the said executrix "carry the sum of $ into the residue of said estate, and restate her account for the settlement of the estate of Lula Hamill accordingly." In that state of the record, the executrix was granted an appeal to this court. In that state of the record, an abstract of the record, on appeal, was filed here, and brief for the appellant filed.
Upon the trial in the circuit court, the exceptor to the settlement introduced in evidence the final settlement of the estate of J. M. Hamill, deceased, made by said Roscoe B. Jones, as executor in charge of the estate of J. M. Hamill, deceased. The admission of this settlement in evidence is assigned as error. The other errors assigned and insisted upon in the brief of appellant, are the general one, that the court erred in sustaining the exceptions to the settlement, and, that the judgment does not designate the amount of recovery, nor designate the property to be affected thereby.
After the foregoing, the respondent filed an additional abstract of the record, showing that at the January term, 1926, of the Circuit Court of Jefferson County, the judgment theretofore entered in said cause, was amended, nunc pro tunc, to designate the amount, and that said judgment as so entered, following the recital of the original judgment, ordered that the exceptions of Anna L. Hamill to said settlement, be and were sustained, and that the executrix, Eva A. Jones, carry the sum of $ 13,233.31 into the residue of the estate of Lula Hamill and restate her account accordingly. Since the filing of said printed additional abstract, attorneys for appellant have filed here the term bill of exceptions, taken by them, and filed in the circuit court, setting forth the proceedings had in the making of the nunc pro tunc order aforesaid, and showing their objections thereto. Incorporated in this term bill of exceptions is a copy of the judgment of the probate court. This judgment will be set out further on, and used by way of interpretation of the judgment entered by the circuit court, and also in connection with items referred to in the evidence.
The final settlement of Roscoe B. Jones as executor of the estate of J. M. Hamill, deceased, showed the distributees of that estate and the amounts respectively due them, and showed that there was due to Lula Hamill, widow, the sum of $ 7,168.34. This is the subject of the fourth exception above referred to. This settlement also set forth the items going to make up said sum of $ 7,168.34 as follows:
The settlement recites that all were delivered to the guardian of Lula Hamill. The guardian of Lula Hamill, at that time, was the executor who made the settlement. The record of the probate court was introduced, showing the filing, examination and approval of the final receipts, and the discharge of Roscoe B. Jones as executor. There was also introduced in evidence in the circuit court, the inventory and appraisement of the personal property belonging to Lula Hamill, made by said Roscoe B. Jones, as her guardian, on February 13, 1920. This showed a stock of merchandise in the city of De Soto with fixtures, appraised at $ 8,000.
It will be remembered that, in what was set out heretofore of the settlement in question, made by Eva A. Jones as executrix of Roscoe B. Jones, deceased, she charged herself with the appraised value of this stock of merchandise, $ 8,000, and also with the additional sum of $ 100 received therefor upon sale, in excess of the appraised value. Having set out these matters, we now set forth the judgment entered by the probate court upon the hearing of the exceptions, to the settlement as it is shown in the term bill of exceptions, as follows:
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