In re McArthur's Estate

• Decision Date: 12 January 1948
• Citation: 207 S.W.2d 546,240 Mo.App. 435
• Parties: In the Matter of the Estate of Dan E. McArthur, Deceased, George R. McArthur, Distributee, Appellant, v. John A. McArthur, Executor, Respondent
• Court: Kansas Court of Appeals

207 S.W.2d 546

240 Mo.App. 435

In the Matter of the Estate of Dan E. McArthur, Deceased, George R. McArthur, Distributee, Appellant, v. John A. McArthur, Executor, Respondent

Court of Appeals of Missouri, Kansas City

January 12, 1948

Appeal from Circuit Court of Cooper County; Hon. Sam C. Blair Judge.

Affirmed.

Roy D Williams and W. W. Carpenter, Jr., for appellant.

(1) The affidavit confers no jurisdiction for the reason that it attempts to cover all matters which transpired and all orders made. Keet & Rountree Dry Goods Co. v. Williams, 202 S.W. l. c. 622. (2) The bond is not sufficient to confer jurisdiction upon the Circuit Court. Laws of 1945, Section 287; State v. Jones, 202 S.W. l. c. 1123; Nidy v. Rice, 44 S.W. 2d 196; Caruthers v. Barnett, 149 Mo.App. l. c. 165. (3) Mr. John A. McArthur, personally had no right to appear in the Probate Court nor to appeal. Redman v. Adams, 88 Mo. App., 535. (4) The Probate Court properly found that the estate was fully administered and that document was a final settlement. The notice of final settlement was published and adopted by the executor. R. S. 1919, Section 230; State v. Stolte, 1 S.W. 210; In re Wood's Estate, 217 Mo. App., 257, 261 S.W. 943.

Schaumburg & Martin, L. O. Schaumburg for respondent, John A. McArthur, as an individual.

(1) Respondent John A. McArthur has a personal right to appeal from the particular judgment and orders of the Probate Court involved in this case. Sec. 283, R. S. Mo., 1939; 34 C. J. S., p. 1139. (2) The statute provides that the right of such appeal extends to any heir, devisee, legatee, creditor or other person having an interest in the estate under administration. In re Switzer, 98 S.W. 461, 201 Mo. 66. (3) The judgment of the Probate Court was a personal judgment against John A. McArthur for $ 27,731.18. Haeussler v. Scheitlin, 9 Mo.App. 303. And it was a lien against his real estate. Sec. 1269, R. S. Mo., 1939. (4) He was personally liable for the payment of the then unpaid State and County taxes. State ex rel. Rice v. Packard, 250 Mo. 686, 157 S.W. 598; State ex rel. v. Haphe, 31 S.W. 2d 788, 326 Mo. 460; Sec. 181 (III), R. S. Mo., 1939. (5) He was personally liable for the payment of the undetermined Federal and State income taxes. Sec. 3467, U.S.C. (as amended by Revenue Act of 1934); Title 31, U.S.C.A., Sec. 192 (as amended by Revenue Act of 1934); Title 26, U.S.C.A., Revenue Act of 1934; Sec. 11347, R. S. Mo., 1939; Sec. 181 (III), R. S. Mo., 1939. (6) He has a personal interest in not permitting an unlawful judgment to stand against him; and the judgment and orders appealed from are unlawful. Wyatt v. Stillman Institute, 260 S.W. 73, 303 Mo. 94; State ex rel. Knisely v. Holtcamp, 181 S.W. 1007, 266 Mo. 347.

Ragland, Otto, Potter & Embry, and Leon P. Embry for respondent, John A. McArthur, Executor.

(1) The Circuit Court was not without jurisdiction of the appeal from the Probate Court because of any insufficiency of the affidavit for appeal. Sec. 289, R. S. Mo., 1939; Egger v. Egger, 225 Mo. 116; Moberly v. Powell, 229 Mo.App. 857, 86 S.W. 2d 383. (2) The Circuit Court did acquire jurisdiction because an appeal was granted, and that conferred jurisdiction on the Circuit Court even if no affidavit has been filed or if the affidavit filed were defective. Estate of Wm. G. Williams, 62 Mo.App. 339; Amos v. Wetzel, (Mo.) 133 S.W. 2d 361. (3) The two orders mentioned in the affidavit must be regarded as a unity. In re Mills's Estate, 349 Mo. 611, 162 S.W. 2d 807, 809-810; Monahan v. Monahan's Estate, 232 Mo.App. 91, 89 S.W. 2d 153, 156. (4) The filing of the exceptions is a mere matter of practice serving to call the Probate Court's attention to the matters complained of and to indicate to the appellate court the matters to be litigated on appeal. In re Mills's Estate, 349 Mo. 611, 162 S.W. 2d 807, 810. (5) The inclusion in the affidavit of the order overruling the exceptions could be no more than harmless surplusage in any event. Monahan v. Monahan's Estate, 232 Mo.App. 91, 89 S.W. 2d 153, 156-157. (6) The appeal bond was not insufficient to confer jurisdiction on the Circuit Court. Sec. 289, R. S. Mo., 1939; Egger v. Egger, 225 Mo. 116, 136; Moberly v. Powell, 229 Mo.App. 857, 865, 86 S.W. 2d 383, 387; Estate of Wm. G. Williams, 62 Mo.App. 339, 351; Amos v. Wetzel, (Mo.) 133 S.W. 2d 361, 362. (7) The bond shows that it is conditioned for the prosecution of the appeal and for the payment of costs as provided by the second paragraph of Sec. 287, R. S. Mo., 1939, as amended by Laws of 1945, S. B. 141, Sec. 1. (8) The question of John A. McArthur's right personally to appear in the Probate Court or to appeal is not before this Court for review. Supreme Court Rule 3.23. (9) The trial court did not err in setting aside the Probate Court orders of December 4, 1945 and January 10, 1946, and ordering the Probate Court to treat the settlement filed on November 27, 1945, as an annual settlement and to proceed therewith accordingly. Statutes in pari materia must be construed together. State ex rel. Lefholz v. McCracken, 231 Mo.App. 870, 95 S.W. 2d 1239, 1241; Secs. 229, 230, R. S. Mo., 1939. (10) There are three essential prerequisites to the making of a final settlement, viz., publication of the notice provided for in Section 229, full administration of the estate, and payment of all debts. Sec. 230, R. S. Mo., 1939; State ex rel. Lefholz v. McCracken, 231 Mo.App. 870, 95 S.W. 2d 1239, 1243; State ex rel. Aufderheide v. Stolte, (Mo. App.) 1 S.W. 2d 209, 213. (11) The final settlement notice must be given by the Executor. Sec. 229, R. S. Mo., 1939. (12) The Executor having refused to adopt the notice published by making final settlement, no final notice, essential to jurisdiction, was ever published. State ex rel. Aufderheide v. Stolte, (Mo. App.) 1 S.W. 2d 209, 212. (13) Final settlement could not be made because there were unpaid debts and the estate was not fully administered. Secs. 229, 230, R. S. Mo., 1939, and all matters and things in respect to the estate had not been finished and closed up. State ex rel. Lefholz v. McCracken, 231 Mo.App. 870, 95 S.W. 2d 1239, 1241. (14) There can be no settlement without signature and verification. Sec. 213, R. S. Mo., 1939. (15) The Executor had a right to refuse and the only recourse against him would be the statutory process of citation, and, if necessary, attachment and revocation of letters. State ex rel. Aufderheide v. Stolte, (Mo. App.) 1 S.W. 2d 209, 212; In re Wood's Estate, 217 Mo.App. 257, 261 S.W. 943; Sec. 229, R. S. Mo., 1939; Sec. 216, R. S. Mo., 1939; Sec. 217, R. S. Mo., 1939; Sec. 218, R. S. Mo., 1939; Sec. 219, R. S. Mo., 1939. (16) Since those sections provide a special procedure for compelling settlement, under the maxim expressio unius, they exclude and render nugatory any other procedure. Peatman v. Drainage Dist., (Mo. App.) 176 S.W. 2d 539, 545. (17) The trial in the Circuit Court is de novo, Sec. 291, R. S. Mo., 1939. The procedure followed by the Circuit Court in ordering the record, proceedings and papers, certified to the Probate Court with directions to that Court was the proper procedure. Sec. 293, R. S. Mo., 1939; In re Taylor's Estate, (Mo. App.) 5 S.W. 2d 457, 461; In re Hammill's Estate, (Mo.) 287 S.W. 485, 488; In re Adams' Estate, (Mo. App.) 139 S.W. 2d 1037, 1038. (18) Appellant's brief fails to comply with this Court's Rule 1.08. Kleinschmidt v. Globe-Democrat Pub. Co., (Mo.) 165 S.W. 2d 620. (19) The transcript on appeal was not filed in this Court within the time required by law. Secs. 137, 138, Civil Code of Missouri.

OPINION

Cave, P. J.

This matter arose in the probate court of Cooper County. To get a clear understanding of the issues presented on appeal, we make a general statement of the facts and proceedings in the probate and circuit courts of that county.

Dan E. McArthur died, leaving a will disposing of certain real estate and after some special bequests, devising the residue of his estate to his son, George R. McArthur. The testator appointed his brother, John A. McArthur, as executor without bond. John A. McArthur qualified and letters were granted September 12, 1944. During the administration of the estate Mr. Harry Wooldridge was attorney for the executor. A semi-annual settlement was made in May, 1945. Prior to the November term, 1945, a notice of final settlement was published, but this notice was not signed by the executor and not published by his direction. The probate judge, as was his custom, had the notice published.

Sometime prior to November 27, 1945, Mr. Wooldridge prepared a settlement, which he captioned as a final settlement, for the executor to sign and file. On November 27 Mr. Wooldridge appeared in the probate court with this prepared settlement and, at the same time, John A. McArthur appeared with his personal attorney, Mr. Schaumburg, and George R. McArthur, the distributee of the residuary estate, appeared with Mr. Williams, his attorney. Mr. Schaumburg's instructions from John A. McArthur were, among other things, not to allow the settlement prepared by Mr. Wooldridge to be filed as a final settlement. Mr. Schaumburg presented a written statement to the effect that the executor had discovered that certain of his personal assets had been commingled and inventoried as assets of the estate, and that it was impossible to make final settlement and distribution until there had been a determination which assets were his personally and which belonged to the estate. Mr. Schaumburg requested that he be permitted to type the written statement on the form of settlement which Mr. Wooldridge had prepared, and which was, at that time, unsigned by the executor. Mr. Wooldridge and Mr. Williams objected and the probate judge sustained the...