In re Gillis' Estate

• Decision Date: 06 January 1931
• Docket Number: No. 21115.,21115.
• Citation: 33 S.W.2d 973
• Parties: In re GILLIS' ESTATE.
• Court: Missouri Court of Appeals

33 S.W.2d 973

In re GILLIS' ESTATE.

No. 21115.

St. Louis Court of Appeals. Missouri.

January 6, 1931.

Rehearing Denied January 23, 1931.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

"Not to be officially published."

In the matter of the estate of Julia L. Gillis, deceased. From a judgment of the circuit court affirming an order of the probate court setting aside its order of partial distribution, James D. Gillis, as executor of the last will and testament of decedent, appeals.

Judgment of the circuit court reversed, and cause remanded with directions.

E. H. Wayman, of St. Louis, for appellant.

Barker & Drury, of St. Louis, for respondent.

SUTTON, C.

On March 5th, at the March term, 1928, of the probate court of the city of St. Louis, James D. Gillis, as executor of the last will and testament of Julia L. Gillis, deceased, filed his first semiannual settlement of the estate of the deceased, together with a petition for a partial distribution of the assets of the estate. Whereupon, the court approved the settlement, and ordered the executor to distribute to John R. Gillis and James D. Gillis, residuary legatees, share and share alike, $3,000, out of the assets of said estate. Afterwards, during the same term, the court, upon the petition of Maude Gillis Emlet, duly filed, set aside said order of distribution.

The executor, in his petition for order of distribution, alleges that the deceased, at the time of her death, left no debts excepting funeral expenses and minor household expenses, all of which have been paid, as shown by the semiannual settlement filed; that the executor now has on hand, as shown by said semiannual settlement, $4,029.63; that there will be no other debts or claims allowed against the estate; that the executor and his brother, John R. Gillis, are residuary legatees under the will of the deceased; that the only remaining items to be paid out of the estate ahead of the residuary legatees are several small legacies and taxes, amounting in the aggregate to $607.50; and that in addition to the personal estate left by the deceased she also left real estate of the value of $15,000.

Maude Gillis Emlet, in her petition to set aside the order of distribution, charges that John R. Gillis is indebted to her on a promissory note for $5,000, plus interest; that a suit for the collection of said note is now pending in the circuit court of the city of St. Louis; that in said suit a writ of attachment was issued; that the attachment was levied on the one-half interest of John R. Gillis in the real estate of deceased, devised to him under the will of deceased, and that the executor was summoned as garnishee, prior to the making of said order of distribution; that under the will of deceased, John R. Gillis was entitled to receive one-half of her estate, and James D. Gillis was entitled to receive one-half of said estate; that shortly after the death of the deceased, defendant conveyed his interest in the real estate to James D. Gillis; that the real estate was conveyed, and the order of distribution obtained, in order to defraud, hinder, and delay the petitioner in the collection of her demand against John R. Gillis.

From the order of the probate court setting aside its order of distribution the executor appealed to the circuit court. Upon a hearing, the circuit court gave judgment affirming the order of the probate court. From this judgment the executor has appealed to this court.

It appears, from a memorandum opinion filed, that the judgment of the circuit court was arrived at on the theory that the order of the probate court,...