In re Jarboe's Estate

• Decision Date: 17 March 1910
• Citation: 227 Mo. 59,127 S.W. 26
• Court: Missouri Supreme Court
• Parties: In re JARBOE'S ESTATE. In re M. W. JARBOE & SON'S ESTATE. LOZIER v. JARBOE.

127 S.W. 26

227 Mo. 59

In re JARBOE'S ESTATE In re M. W. JARBOE & SON'S ESTATE LOZIER v. JARBOE.

Supreme Court of Missouri.

March 17, 1910.

Rehearing Denied March 30, 1910.

1. ESTOPPEL (§ 5) — ALLOWANCE OF CLAIMS — ADMISSIONS — EFFECT.

Where the administrator of a deceased partner and of the firm and the surviving partner entered into a contract filed in the probate court, which stipulated that the surviving partner had filed claims against the individual estate of decedent and the firm estate, to which the estates had interposed counterclaims, the surviving partner could not, after judgment against him, urge that there were no claims pending in the probate court for determination.

2. EXECUTORS AND ADMINISTRATORS (§250) — ALLOWANCE OF CLAIMS — JURISDICTION OF COURT.

Under Rev. St. 1899, §§ 192-194, 204 (Ann. St. 1906, pp. 404, 405, 409), conferring on the probate court jurisdiction to determine demands against decedent's estates, and adjust set-offs, probate courts have jurisdiction to hear claims against a decedent's estate, and incidentally to hear all counterclaims in favor of the estate where filed, as against a claim theretofore filed.

3. EXECUTORS AND ADMINISTRATORS (§ 250) — ALLOWANCE OF CLAIMS — JURISDICTION OF COURT.

Where claimants against the estates of a deceased partner and of the firm, and the administrator of the estates, who filed counterclaims, waived formal notice, and by writing entered their appearance in the probate court for the adjustment of the claims and counterclaims, the probate court acquired jurisdiction of the parties.

4. EXECUTORS AND ADMINISTRATORS (§ 246) — ALLOWANCE OF CLAIMS — REFERENCE — AGREEMENT.

Where claims against the estate of a deceased partner and the firm estate, and the administrator of the estates, entered their appearances in the probate court for an adjustment of the claims and counterclaims pending in court, and agreed to a reference by authorizing the court to name an attorney to determine and adjudicate the claims, and agreed that the probate court should approve such report, each party reserving the right of appeal to be heard on the evidence and facts heard and found by the referee, the parties conferred on the probate court the power to appoint an attorney as referee to adjust the claims and counterclaims, and the parties could not thereafter object to such reference, and a judgment when entered on the report of the referee was equivalent to a judgment by confession.

5. REFERENCE (§ 4) — CONSENT REFERENCE — POWER OF COURT TO REFER.

The power of the court, with the consent of the parties, to refer a case pending before it is incident to judicial administration, where the right exists to ascertain the facts, as well as to pronounce the law, and any issue in any pending action may be referred by consent of the parties, though generally reference cannot extend to matters outside of the suit.

6. EXECUTORS AND ADMINISTRATORS (§ 246) — ALLOWANCE OF CLAIMS — REFERENCE.

An executor or administrator may submit to arbitration claims against the estate without special authority from the probate court, though at common law he acts at his peril, and where the award on his counterclaim is less than would have been obtained by suit at law, he may

be liable, but his agreement to arbitrate is nevertheless good.

7. REFERENCE (§ 24) — REFERENCE BY CONSENT — REVOCATION.

Where a consent reference is had by an order or rule of court, neither party may revoke the reference, nor his consent thereto.

8. REFERENCE (§ 33) — REFERENCE BY CONSENT — ESTOPPEL.

Where parties in proceedings in the probate court for the adjustment of claims agreed to a reference and appeared before the referee, they could not revoke the reference, and they were estopped from insisting that the case was not referable, and the court did not err in rendering judgment on the reference.

9. EXECUTORS AND ADMINISTRATORS (§ 256) — ALLOWANCE OF CLAIMS — JUDGMENT — APPEAL.

Where the probate court rendered a judgment adjusting the claims against the estate of a deceased partner and the firm estate, under an agreement authorizing the rendition of a judgment subject to the right to appeal to the circuit court on the evidence taken before the referee appointed by the probate court, the parties on appeal to the circuit court were bound by the agreement, and the circuit court must dispose of the case on the evidence taken before the referee.

10. COURTS (§ 202) — PROBATE COURTS — JURISDICTION.

Probate courts, though courts of statutory power, may in the exercise of the powers granted resort to the common law and equitable rules in the disposition of matters before them.

Valliant, C. J., and Fox, J., dissenting.

In Banc. Appeal from Circuit Court, Carroll County; Jno. P. Butler, Judge.

Proceeding for the settlement of claims presented against the estate of M. W. Jarboe, deceased, and against the firm estate of which decedent was a partner, in which counterclaims were presented. From a judgment against O. M. Jarboe, a claimant, he appeals. Affirmed.

Peak & Strother, for appellant. Conkling & Rea and Morris & Atwood, for respondents.

GRAVES, J.

This cause reaches this court from an appeal taken by O. M. Jarboe from a judgment entered against him by the circuit court of Carroll county. The cause originated in the probate court of said county, and from a judgment there the said O. M. Jarboe had appealed to the circuit court. Pertinent record facts and history of the case are as follows: M. W. Jarboe and O. M. Jarboe were partners in the milling business from 1891 to 1904, at which time the copartnership terminated by the death of M. W. Jarboe. M. W. Jarboe left as his heirs his widow and three children; i. e., O. M. Jarboe, H. M. Jarboe, and Jessie Van Trump. The widow qualified as administrator of both the partnership and individual estates. She served but a short time when she died, and O. M. Jarboe, H. M. Jarboe, and R. W. Van Trump, husband of Jessie Van Trump, qualified as administrators d. b. n. of both estates. For reasons not clearly appearing in the record, but easily surmised, this administration was of but short duration. Their letters were revoked, and Ralph F. Lozier was appointed and qualified as administrator d. b. n. of both estates. Just how the several probate orders were made does not appear of record, but from start to finish it seems that there was a desire to keep the administration of the two estates in the same hands. After Mr. Lozier's appointment, all the parties interested, on August 10, 1905, entered into a certain written agreement, which we set out in full because of the admissions made therein, as well as for the further reason that it forms the sole basis for appellant's contentions in this court. This agreement was filed in the probate court of Carroll county, and below will be found the court entry containing the agreement:

"In the probate court of said county, on the 10th day of August, 1905, the following, among other proceedings were had, viz.: In the Matter of the Estate of M. W. Jarboe, Deceased. In the Matter of the Partnership Estate of M. W. Jarboe & Son. Comes now the administrator de bonis non, Ralph F. Lozier, and also comes O. M. Jarboe, H. M. Jarboe, and R. W. Van Trump, in person and by their attorneys, all of whom enter their appearance and waive notice of the claims here in court filed. Comes now R. W. Van Trump, and files a claim against the individual estate of M. W. Jarboe, deceased, in the sum of $____. Also comes O. M. Jarboe and files his claim and demand against the individual estate of M. W. Jarboe, deceased, and also files claim and demand against the partnership estate of M. W. Jarboe & Son in the sum of $____. Also comes the partnership estate of M. W. Jarboe & Son by Ralph F. Lozier, administrator de bonis non, and files certain claims and demands against the individual estate of M. W. Jarboe, deceased. And whereas each of the several parties have filed counterclaims against the other parties which are interposed as a defense against said claims and demands, as above recited; and whereas, in order to finally settle and adjust the said conflicting claims and demands, the said parties have entered into a certain written stipulation and agreement as follows:

"`Whereas, an administration of the individual estate of Milton W. Jarboe, deceased, is pending in the probate court of Carroll county, Missouri; and whereas, the partnership estate of M. W. Jarboe & Son is being administered in connection with the administration of said individual estate, by Ralph F. Lozier, administrator de bonis non, of said estate; and whereas, R. W. Van Trump has filed in the probate court aforesaid, a certain demand and claim against the individual estate of M. W. Jarboe, deceased, and also against the partnership estate of M. W. Jarboe & Son; and whereas, both of said estates have a counterclaim and demand against said R. W. Van Trump, which counterclaim and demand have been interposed against said claims of said R. W. Van Trump; and whereas, O. M. Jarboe, surviving partner of the partnership estate of M. W. Jarboe & Son, has filed a certain claim and demand against said individual estate of M. W. Jarboe, and also against the partnership estate of M. W. Jarboe & Son; and whereas, both of said estates have demands and counterclaims against said O. M. Jarboe, and have interposed the same as a defense against said claims and demands of said O. M. Jarboe; and whereas, the partnership estate of M. W. Jarboe & Son has filed certain claims and demands against the individual estate of M. W. Jarboe, deceased; and whereas, the individual estate of M. W. Jarboe has filed certain demands and counterclaims against the claims and demands of said partnership estate as aforesaid; and whereas, all of said claims, demands and counterclaims aforesaid are now pending and undetermined in the probate court aforesaid; and whereas, it is the desire of the respective estates and...