In re Peters

• Decision Date: 21 January 1908
• Parties: In re PETERS.
• Court: Missouri Court of Appeals

107 S.W. 406

128 Mo. App. 666

In re PETERS.

St. Louis Court of Appeals. Missouri.

January 21, 1908.

1. EXECUTORS AND ADMINISTRATORS — ACCOUNTING — CREDITS.

The defense, interposed by an executor to the order for payment to a legatee of her legacy, that it should be applied on the payment of the consideration of a deed made by testator to her husband alone, is void of reasonableness; so that the executor should not have credit for interest he was required to pay the legatee because of his appeals, or for costs or attorney's fees therein.

2. SAME.

An executor is not entitled to credit for expenditures for attorney's fees or costs in a suit to set aside a deed of testator, prosecuted, not in behalf of the estate, but by and in behalf of testator's heirs, for their personal benefit.

3. SAME — COMMISSIONS.

It being only on amounts collected and paid out that an executor is entitled to commissions under Rev. St. 1899, § 223 [Ann. St. 1906, p. 415], he is not entitled to commissions on notes secured by mortgages, they being foreclosed, and the land being bid in and distributed among testator's heirs.

4. SAME — ATTORNEY'S FEES.

An executor should not be allowed an attorney's fee for making and defending the final settlement, he having received credit for a payment he made an attorney under an agreement that the attorney was to receive this in full for services rendered and to be rendered by him in connection with the estate, including the final settlement, and all litigation had or that might be had in connection with the estate, and it not appearing that the estate was involved in any other litigation than the unwarranted resistance by the executor of an order for payment to a legatee.

Appeal from Circuit Court, St. Charles County; Jas. D. Barnett, Judge.

In the matter of the final settlement of Edward Peters, executor of William Peters, deceased. From a judgment of the circuit court, affirming an adverse judgment of the probate court, said executor appeals; Mollie Berkemeier and another, exceptors, being the respondents. Affirmed.

O. H. Avery, for appellant.

BLAND, P. J.

Appellant, in his final settlement, as executor of the last will of William Peters, filed in the probate court of St. Charles county, charged himself with $12,181.13, and asked credit for $12,193.58. He also listed as unavailable a lot of notes on the inventory, amounting in the aggregate to $6,068.05. Mollie Berkemeier and Lizzie Painter, both heirs of William Peters and distributees of his estate, filed separate exceptions to the settlement. Evidence on the exceptions was heard by the probate court at the January, 1906, term thereof, and on February 24th the court found as follows: "First. That the executor has failed to charge himself with $197.20 interest received from the St. Charles savings bank on money deposited. Second. That said executor has improperly taken credit for the sum of $676.65, being the interest paid by him to Mollie Berkemeier, and finds that the said executor after having charged himself with the said $197.20, interest from the bank, should be charged with the difference between $676.65 and $197.20, to wit, the sum of $479.45. Third. Finds that the executor has taken credit with $37.42 for taxes improperly. Fourth. That the executor improperly takes credit with $61.45 unavailable on the note of Alex. Schroeder. Fifth. That the executor has improperly taken credit for the sum of $401.70 attorney's fees and costs incurred by the executor in prosecuting two lawsuits, as mentioned in items 2 and 7 of the exceptions of Mollie Berkemeier and in item 6 of the objections of Lizzie Painter. Sixth. That the executor has failed to charge himself with $19.72, interest collected from Sophia Painter. Seventh. That the entire sum with which said executor should be charged in his final settlement not charged therein amounts to $1,196.94, leaving in his hands for distribution the sum of $1,184.49."

In due time the executor appealed to the circuit court, where, on a trial de novo, the judgment of the probate court was in all things affirmed, from which judgment he appealed to this court. The executor paid to Mollie Berkemeier, on an order of distribution, the sum of $4,176.71, for which he claimed credit; of this sum the probate court only ordered the payment of $3,500. The difference between the sum allowed and the sum paid was interest which accumulated on the allowance between the date it was made and the date of payment. The executor also paid to O. H. Avery $49.75 for a brief, to William Wolter $78.05, to Norton, Avery & Young $250 attorney's fees, and to O. H. Avery as costs $23, for all of which he asks credit. The probate court disallowed these items. In the circuit court, for the first time, appellant claimed $125.05 as executor's commission. While there were many other than the above exceptions to the final settlement, filed in the probate court, only the ones last noted were contested in the circuit court. It appears from the evidence that on March 12, 1902, the executor was ordered to pay Mollie Berkemeier $3,500 on account of her distributive share of the estate. The executor appealed from this order to the circuit court, where the judgment of the probate court was affirmed, from which judgment he appealed to this court. This court, at the March term, 1905, affirmed the judgment. See Berkmeir v. Peters, 111 Mo. App. 717, 86 S. W. 598. Pending this litigation $676.65 interest accumulated on the allowance of $3,500, and the executor was compelled to pay both the principal and the accumulated interest. Both the probate and circuit courts decided that the litigation was not justified, and for this reason the executor was not...