In re Mills' Estate

• Citation: 162 S.W.2d 807,349 Mo. 611
• Decision Date: 05 May 1942
• Docket Number: 37610
• Parties: In re Estate of William D. Mills, Walter F. Sheehan, Administrator. Walter F. Sheehan v. Estelle Rudick, Appellant
• Court: United States State Supreme Court of Missouri

162 S.W.2d 807

349 Mo. 611

In re Estate of William D. Mills, Walter F. Sheehan, Administrator. Walter F. Sheehan v. Estelle Rudick, Appellant

No. 37610

Supreme Court of Missouri

May 5, 1942

Rehearing Denied June 17, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. Eugene Padberg, Judge.

Reversed and remanded (with directions).

Charles A. Lich for appellant.

(1) The assignee of a beneficial interest in an estate pending in the probate court is entitled to appeal from a final settlement. Sec. 283, R. S. 1939; State v. McPike, 243 S.W. 278; Jones v. Remon, 75 S.W.2d 80. (2) Appeal from final settlement invalidates probate court's approval thereof and necessitates de novo hearing in the appellate court. Sec. 291, R. S. 1939; In re Boothe Estate, 38 Mo.App. 456; In re Berger Estate, 152 Mo.App. 663; Zeidler v. Schneider, 181 Mo.App. 279; In re Ford, 157 Mo.App. 141; In re Claus Estate, 147 S.W. 199; Ansley v. Richardson, 95 Mo.App. 332; State v. Hostetter, 104 S.W.2d 403. (3) The order of the probate court authorizing the administrator to continue decedent's business cannot be broader than the petition which sought the order. Phillips v. Phoenix Co., 58 S.W.2d 318; Congregation Abraham v. Arky, 20 S.W.2d 899; Sutton v. Anderson, 31 S.W.2d 1026; Davis v. Johnson, 58 S.W.2d 746; Barlow v. Scott, 85 S.W.2d 504; Altheimer v. Hunter, 55 Ark. 69, 16 S.W 496; Tompkins v. Weeks, 76 Cal. 50; Harter v. Miller, 67 Kan. 468, 73 P. 74; In re Jones Estate, 23 Pa. Co. St. 513. (4) An administrator is a statutory trustee and possesses only those powers, expressly conferred upon him by statute and, not being authorized by statute to operate decedent's business, he cannot charge losses thus incurred in his final settlement. State v. Holecamp, 14 S.W.2d 646; Peck v. Fillingham Estate, 199 Mo.App. 277; Sibsby v. Wickersham, 171 Mo.App. 128; Yeakle, Jr., v. Priest, Admr., 61 Mo.App. 47; Smarr v. McMasters, 35 Mo. 349; Merritt v. Merritt, 62 Mo. 150; In re Kahn's Estate, 251 N.Y.S. 23; In re Seigrist Estate, 262 N.Y.S. 629; In re Ebbett's Estate, 260 N.Y.S. 268, 305 Pa. 35, 156 A. 309; In re Fleshmann Estate, 51 Idaho 312, 5 P.2d 727; Refling v. Burnet, 47 F.2d 859; Lovewell v. Schoolfield, 217 F. 689; Exchange Bank v. Betts, 103 Kan. 807, 176 P. 660; Walls v. Sharp, 113 N.Y. 586; In re Osborn Estate, 58 P. 521, 523; Western Co. v. Thurmond, 111 P. 204; Multorpor v. Reed, 260 P. 203, 55 A. L. R. 505; Kirkman v. Booth, 11 Beav. 273, 96 Wash. 352, 165 P. 119; Altheimer v. Hunter, 55 Ark. 29, 19 S.W. 416; Tompkins v. Weeks, 76 Cal. 50; Harter v. Miller, 57 Kan. 468, 73 P. 74; In re Jones Estate, 23 Pa. Co. St. 513; 24 C. J. 56; Estate of Olmstead, 279 N.W. 652. (5) The court's findings of fact and declarations of law are erroneous, whereas the findings of fact and declarations of law requested by appellant were proper and should have been given. In re Claus Est., 147 S.W.2d 199. (6) The dummy annual settlements were a fraud on the court and appellant, and the administrator is estopped from claiming and asking credit for business operating losses in his final settlement inasmuch as said annual settlements showed none and deceived the court and appellant into believing that no losses had been sustained. Johnson v. Ferguson, 44 S.W.2d 650; Losse v. Crawford, 5 S.W.2d 105; Henson v. Mercantile Co., 48 Mo.App. 214. (7) The commissions charged by the administrator are excessive. Matson v. Pearson, 121 Mo.App. 120; Ladd v. Stephenson, 147 Mo. 319; Beard v. Beard, 140 N.Y. 260, 35 N.E. 488; Estate v. Haumueller, 266 S.W. 1019; Sec. 220, R. S. 1939. (8) Calculation of surcharges and interest. Judson v. Bennett, 233 Mo. 661.

William M. Fitch and Malcolm I. Frank for respondent.

(1) Appellant's failure to perfect appeal in companion case No. M. D. 4426 in this court, on motion to affirm for failure to perfect appeal, is res adjudicata as to appellant. Rodney v. Gibbs, 184 Mo. 1, 82 S.W. 187. (2) The appellant filed no exceptions of any character to the final settlement or any part thereof. She took an appeal from order approving final settlement. The circuit court was called on by appellant to pass on appellant's objections first made in the circuit court, which were never presented to the probate court to pass on. The circuit court on appeal can only pass on those matters ruled upon by the probate court; therefore, the circuit court was barred from passing on the objections presented for the first time in the circuit court. McCrary v. Michael, 233 Mo.App. 797, 109 S.W.2d 53; State ex rel. Kinealy v. Hostetter, 104 S.W.2d 303; Watkins v. Donnelly, 88 Mo. 322; Smith v. St. Louis Union Trust Co., 340 Mo. 979, 104 S.W.2d 341; Keet & Rountree Dry Goods Co. v. Williams, 202 S.W. 620; McNally v. Hawkins, 163 Mo.App. 692, 147 S.W. 503; Peper v. Bell, 286 Mo. 126, 218 S.W. 438; State ex rel. Burns v. Woolfolk, 303 Mo. 584, 262 S.W. 346; Hoffmeyer v. Mintert, 93 S.W.2d 894; In re Harr & Harr's Estate, 224 Mo.App. 6, 225 S.W.2d 209; Leahy v. Campbell, 274 Mo. 356, 202 S.W. 1114; In re Hull's Estate, 337 Mo. 658, 855 S.W. 621; 3 Woerner, American Law of Administration (3 Ed.), p. 1875; In re Estate of Meeker, 45 Mo.App. 186; In re Estate of Danforth, 66 Mo.App. 586. (3) The probate court has the power to authorize an administrator to continue decedent's business. Harms v. Pohlmann, 222 Mo.App. 276, 297 S.W. 138; Metzger v. Metzger, 153 S.W.2d 118; Rollins v. Shaner, 316 Mo. 953, 292 S.W. 419; 3 Bogert, Trusts & Trustees, pp. 1814, 1820; 2 Woerner, Am. Law of Admr. (3 Ed.), p. 1049; R. S. 1939, secs. 103, 105; Meritt v. Meritt, 62 Mo. 150; 21 Am. Juris., pp. 518, 255. (4) An executor or administrator carrying on the business of decedent under order of court cannot be charged with losses as long as he uses due care in management of business; and especially so when it is concurred in by the heirs. Meritt v. Meritt, 62 Mo. 150, 109 A. L. R. 639; Powell v. Hurt, 108 Mo. 507; Estate of Onstad, 27 N.W. 652; Swain v. Hemphill, 131 N.W. 68; In re Guglielme, 138 Cal.App. 80, 31 P.2d 1078; Bank v. Henderson, 101 Fla. 1437, 136 So. 370; In re Friedlander, 178 N.Y.S. 50; Witman's Estate, 195 Pa. 144, 45 A. 673; Allen v. Shanks, 90 Tenn. 359, 16 S.W. 715. (5) The administrator's commissions as fixed by the judgment of the circuit court were calculated according to our statute, Section 220, R. S. 1939. Estey v. Commerce Trust Co., 333 Mo. 977, 64 S.W.2d 608; Gupton v. Carr, 147 Mo.App. 105; Browning v. Richardson, 186 Mo. 361; Roloson v. Riggs, 274 Mo. 522, 203 S.W. 973; In re Harr & Harr's Estate, 224 Mo.App. 6, 22 S.W.2d 209.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Appellant seeks to surcharge the final settlement of Walter F. Sheehan, as administrator of the estate of William D. Mills, deceased, with items aggregating the sum of $ 12,854.21 in this review proceeding.

William D. Mills, of St. Louis, Missouri, died December 19, 1933, and Walter F. Sheehan, Public Administrator, immediately took charge of his estate as the duly appointed administrator. Mrs. Addie Ostenberg, of Nebraska, was the sole heir of Mr. Mills. On August 8, 1935, she assigned to Estelle Rudick twenty-eight per centum of her beneficial interest in the estate. Mr. Sheehan filed final settlement to the June, 1938, term of the probate court. Thereafter, on October 24, 1938, the probate court disallowed certain claimed credits and surcharged said settlement $ 1,946.93, approved the same and directed the distribution of the unaccounted for assets. The administrator appealed from this order and, according to the transcript of an entry in the probate court, Estelle Rudick and Addie Ostenberg also prayed for and were granted an appeal.

The following self-explanatory stipulation was filed in the circuit court:

"It is stipulated and agreed, by and between appellants Estelle Rudick and Addie Ostenberg, and Walter F. Sheehan, Public Administrator in charge of the estate of W. D. Mills, deceased, that whereas there are two appeals pending in this estate, one being No. 29360 taken by Addie Ostenberg and Estelle Rudick from the final settlement as approved by the Probate Court, and the other being No. 29468, being the appeal of Walter F. Sheehan, Public Administrator, from the order surcharging him on the final settlement and refusing to set aside the approval of the final settlement, to permit further credits thereon, and from the refusal of the Probate Court to allow proper commissions; and, whereas, both of these appeals are companion appeals in the same estate, that all of the evidence adduced in case 29360 is to be considered in evidence in case 29468, and all of the evidence introduced in case 29468 is to be considered as introduced in evidence in case 29360."

The appeals were heard on March 18, 1940. The court rendered its judgment on November 18, 1940. The judgments are identical, word for word, except that one carries the number "29360" -- the appeal of Addie Ostenberg and Estelle Rudick -- and the other carries the number "29468" -- the appeal of Mr. Sheehan, the administrator. Each judgment sets aside the order approving the final settlement, directed an additional credit of $ 1,800, expunged the surcharge of $ 1,946.93 entered by the probate court, but surcharged the administrator with $ 1,020 received but not accounted for, and authorized a commission of $ 2,972.95 to the administrator; calculated, according to our computation, on $ 59,459.

Appellant Mrs. Rudick filed motions for new trial in each of said appeals; and upon the overruling of said motions, filed an affidavit for appeal in each, and an appeal was allowed in each to this court. Appellant caused to be filed here a certified copy of the judgment, etc., in No. 29360 of the circuit court, which carries our ...