In re Graves' Estate

• Decision Date: 18 June 1934
• Docket Number: No. 5386.,5386.
• Citation: 73 S.W.2d 844
• Parties: In re GRAVES' ESTATE. HARDIN v. HOWARD.
• Court: Missouri Court of Appeals

73 S.W.2d 844

In re GRAVES' ESTATE HARDIN v. HOWARD.

No. 5386.

Springfield Court of Appeals. Missouri.

June 18, 1934.

Rehearing Denied July 30, 1934.

Appeal from Circuit Court, Dunklin County; James V. Billings, Judge.

"Not to be published in State Reports."

Proceeding in the matter of the estate of Rosa B. Graves, deceased. On motion of A. E. Hardin, administrator, against E. M. Howard, to set aside a judgment of the probate court allowing a claim for burial expenses. From a judgment of the circuit court setting aside and vacating the judgment of the probate court, the claimant appeals.

Affirmed.

McKay & McKay, of Kennett, for appellant.

W. L. Proffer, of Kennett, for respondent.

SMITH, Judge.

This action originated in the probate court of Dunklin county, by A. E. Hardin, administrator of the estate of Rosa B. Graves, deceased, filing a motion to set aside the judgment of allowance of a claim for burial expenses of Rosa B. Graves. This motion was filed in the probate court on the 25th day of May, 1932, and is as follows, formal parts omitted:

"Comes now A. E. Hardin, administrator of the estate of Rosa Graves, deceased, by his attorney, and moves the court to vacate, set aside and for naught hold the following claim and for his grounds therefor says:

"That Rose Graves died intestate on the 15th day of August, 1931, and left surviving as her sole heir and distributee of said estate, Mrs. Ethel Alice Howell who at the death of said intestate was a resident of Dunklin County, Missouri, and who was under the law, as defined by the R. S. Statutes of Missouri, 1929, at sections 7, 8, and 9 thereof [Mo. St. Ann. §§ 7-9, pp. 9, 11, 12], entitled to prior rights and preference in the appointment, by said court, of the administrator of said estate.

"That on August 19th, four days after the death of said intestate and within 30 days allowed by law for the appointment of said administrator, the Probate Court of Dunklin County appointed one Monroe Bishop administrator of said Rose Graves estate and under said appointment said Monroe Bishop took charge of the personal property thereof and filed his inventory and appraisement.

"That at the time of said appointment of Monroe Bishop as such purported administrator, the said Mrs. Ethel Alice Howell was present and protested against said appointment and notified the court that her residence was then at Cardwell, in Dunklin County, Missouri, but that her said residence was erroneously named as of Greene County, Arkansas, by the said Monroe Bishop; that Ethel Alice Howell did not sign a written waiver of her right to administer on said estate, as provided by law, as the next of kin to deceased, nor in any way renounce or relinquish her said rights of administration.

"That soon after the appointment of Monroe Bishop as aforesaid certain creditors of deceased, Rose Graves, filed with said purported administrator their purported statement of certain claims against said estate, viz.: Claim of E. M. Howard in the sum of $825 for burial expenses and said purported administrator signed a waiver of notice of presenting said claim and acknowledged the correctness thereof on the 2nd day of September 1931, and which claim was by said administrator presented to the court and approved and allowed on the same date.

"That the appointment of said Monroe Bishop as such administrator of said Rose Graves estate, who was a stranger and of no kin to deceased nor entitled to any share thereof as distributee, within thirty days after the death of said intestate when the court had personal knowledge that said heir and distributee was then living in Missouri, was without authority of law and wholly null and void.

"That said Monroe Bishop acting as such administrator appointed as aforesaid was acting without authority and wrongfully and any act done or performed by him as such was null and void, and that said waivers of notice as aforesaid and acknowledgment of the correctness of said claims was null and void and not binding upon said heir at law, and distributee or other persons interested in the administration of said estate.

"That the Probate Court of Dunklin County, Missouri, was without jurisdiction and had no authority under the laws of Missouri, as defined at sections 186, 195 and 196 of Revised Statutes of Missouri 1929 [Mo. St. Ann. §§ 186, 195, 196, pp. 115, 128, 130], to approve and allow said claim on the date and as presented by said purported administrator, Monroe Bishop, and that said claim upon said estate allowed as aforesaid is a nullity, unlawful and void.

"That said Monroe Bishop, as such purported administrator, did not file said purported statements of said claim with the Probate Court and permit them to remain with the files of said estate but turned each of said statements over to said claimants who have kept them from the files and records of said estate, and which acts of said purported administrator deprived the lawful heirs, parties of interest in said estate and their attorney of any knowledge that said claim had ever been presented for allowance, and which acts further deprived this administratrix of the right to appeal or file an affidavit to have said claim reheard and tried by a jury; that said claim is far in excess of the amount of claims which may be allowed by the court without a hearing, before the court or jury, requiring proof of the correctness and legality of said claims.

"That all of the above facts are patent and of record in the records of the Probate Court of Dunklin County, Missouri, and the court before whom said proceedings were had.

"That said appointment of Monroe Bishop administrator as aforesaid and which administrator shortly thereafter resigned, and all his said acts done and performed by him as such, especially the approval and allowance of said claim has resulted in a great loss and damage to said estate and constitutes a fraud upon the rights of said heir at law and the distributee of said estate and the other creditors interested therein. That this administrator alleges and charges that each of said claims as approved and allowed by Monroe Bishop, administrator, and approved by the court are erroneous, unjust and greatly in excess of the true value thereof, if any, of said claims.

"That movant, A. E. Hardin, is now the duly appointed, qualified and acting administrator of the estate of Rose Graves, deceased, and as such administrator now asks the court to vacate, set aside and for naught hold the order and judgment of record in said court approving and allowing the claim of E. M. Howard in the sum of $825.00, as above set out, and that the said claim as it now stands be stricken from the records of said court and be held and declared to be of no force and invalid as against the lawful claims of other creditors, heirs and distributees of said estate, and for such further orders as may seem just in the premises, and for which he will ever pray.

                                        "A. E. Hardin
                             "Administrator of Estate of
                              Rose Graves, deceased."
                

E. M. Howard, in whose behalf the claim for $825 had been allowed, filed an answer to the motion which was a general denial of the allegations set up in the motion, and prayed for a dismissal of said motion.

On the 30th day of May, 1932, the probate court overruled the motion filed by the administrator, and on that day the administrator took an appeal to the circuit court, and thereafter on March 30, 1933, a hearing was had before the circuit court, and the following judgment was rendered, caption omitted: "Trial by court, submitted and taken under...