In re Estate of McNeely

• Decision Date: 06 December 1909
• Parties: In re ESTATE WILLIAM McNEELY, Deceased, Appellant, v. JOHN F. IMEL, Judge Probate Court, Respondent
• Court: Kansas Court of Appeals

123 S.W. 1006

140 Mo.App. 1

In re ESTATE WILLIAM McNEELY, Deceased, Appellant, v. JOHN F. IMEL, Judge Probate Court, Respondent

Court of Appeals of Missouri, Kansas City

December 6, 1909

Appeal from the Buchanan Circuit Court.--Hon. C. A. Mosman, Judge.

AFFIRMED.

Judgment affirmed.

James Moran for appellant.

(1) Section 214, Revised Statutes 1899, provides, that, "If any . . . heir . . . 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, and shall furnish satisfactory evidence of that fact to the court, and further, that notice has been given the opposite party or parties in interest, the court shall vacate such order of allowance and try the matter anew and allow or reject such demand, as shall be right." (2) This section of the statute has the effect of placing a limitation of four months on the time, a judgment of allowance of the probate court shall go into effect, and during this period of time the order of allowance is interlocutory only. If any one of the persons named in the statute, shall file in the office of the probate court, the affidavit therein mentioned within four months the court must hear and pass on it; it has no discretion in the matter; if it refuses to set aside the former allowance, then, and then only, does the allowance become a judgment against the estate, and then and then only is it final. (3) Section 278, Revised Statutes 1899, provides that, "Appeals shall be allowed from the decision of the probate court to the circuit court in the following cases: . . . Fifteenth, and in all other cases where there shall be a final decision of any matters arising under the provisions of this chapter; 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." (4) Hence it is that the court committed error in holding that no appeal lies from the refusal of the probate court to set aside its former order of allowance in accordance with the provisions of section 214, Revised Statutes 1899. Ruff v. Doyle, 56 Mo. 301; McCrary v. Menteer, 58 Mo. 446; In the Matter of Estate of McClure, 76 Mo. 205; Ferguson v. Carson, 86 Mo. 673; Keele v Keele, 118 Mo.App. 262; Moody v. Peyton, 135 Mo. 491. This case discusses sections 214 and 278 and holds that an appeal lies from all orders and judgments of the probate court made under the provisions of section 214. Ferguson v. Carson, 13 Mo.App. 33; Donaldson v. Lewis, 7 Mo.App. 403. (5) The allowance was improperly made, in this, that the probate court had no power or authority to make an allowance in favor of the administratrix without appointing an administrator pendente lite to defend the interests of the estate. R. S. 1899, sec. 205; State to use v. Bidlingmair, 26 Mo. 483; Clark v. Fountain, 28 Mo.App. 34. (6) And as section 214 must be regarded as a remedial statute, it must therefore be liberally construed with a view to effectuate its manifest purpose. Authorities supra. (7) And the office and duties of an administrator are fixed and limited by law. He is in no sense of the term an agent, for back of him is no principal. His office is a naked trust and he can make no contract, nor perform any acts other than such as are connected with or incident to the execution of his trust. Richardson v. Palmer, 24 Mo.App. 480-487; Byers v. Weeks, 105 Mo.App. 72. (8) And probate courts possess no power to allow any claim against an estate, except those in existence at the time of the death of the person whose estate is undergoing administration. Farrar v. Dean, 24 Mo. 16; Presbyterian Church v. McElhinney, 61 Mo. 542; Ferguson v. Carson, 13 Mo.App. 29-33; Garnett v. Carson, 11 Mo.App. 290.

Kendall B. Randolph for respondent.

(1) The probate court may properly make an allowance for funeral expenses and for monuments and vaults. A vault is a burial place and a monument combined. In re Danforth's Estate, 66 Mo.App. 591; Argo v. Donover, 80 Iowa 214; Succession of Smith, 9 La. Ann. 107; Owens v. Bloomer, 14 Hun 296; Tickel v. Quinn, 1 Dem. Sur. 425; Laird v. Arnold, 42 Hun 136; Appeal of McGlinsey, 14 Serg. & R. 64; In re Connolly's Estate, 28 Pittsb. Leg. J. 355; Moulton v. Smith, 16 R. I. 126. (2) The judgment of allowance of a demand by the probate court is as conclusive as is the judgment of any other court. Mason v. Gaither, 106 Mo.App. 357, citing Munday v. Leeper, 120 Mo. 417.

OPINION

BROADDUS, P. J.

This action was commenced in the probate court of the county and from there it was taken to the circuit court on appeal. The trial in the circuit court resulted in a judgment in favor of the defendant and plaintiff appealed.

We gather from the statement of the record, that defendant, as administratrix, on the 28th day of September, 1908, presented to the probate court the following petition:

"Comes now Dora McNeely, administratrix of the said estate, and petitions the Honorable Probate Court for an order authorizing her to expend an amount sufficient to provide for the erection of a vault as a burial place for the late William McNeely, and as grounds therefor states: That it was the expressed will and intention of the said William McNeely prior to his death, to provide for the erection of said vault and he had contemplated the immediate erection of the same prior to his death; but that his death occurred before he had time to perfect the plans and complete the erection of said vault.

"Your petitioner further states that all of the debts that were due and owing against said estate have been paid and that the estate has ample...