In re Pillman Bros.' Estate

• Decision Date: 18 September 1934
• Docket Number: 32094
• Citation: 75 S.W.2d 582,335 Mo. 910
• Parties: In the Matter of the Partnership Estate of Pillman Brothers, Emma Pillman, Executrix of the Last Will of Josiah Pillman, and as Such in Charge of Administering de bonis non the Affairs of the Late Firm of Pillman Brothers, Appellant, v. Otto A. Hampe, Public Administrator in Charge of the Estate of Isaiah Pillman
• Court: Missouri Supreme Court

75 S.W.2d 582

335 Mo. 910

In the Matter of the Partnership Estate of Pillman Brothers, Emma Pillman, Executrix of the Last Will of Josiah Pillman, and as Such in Charge of Administering de bonis non the Affairs of the Late Firm of Pillman Brothers, Appellant, v. Otto A. Hampe, Public Administrator in Charge of the Estate of Isaiah Pillman

No. 32094

Supreme Court of Missouri

September 18, 1934

Rehearing Overruled September 18, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Moses Hartmann, Judge; Opinion filed at May Term, 1934, July 17, 1934; motion for rehearing filed; motion overruled at September Term, September 18, 1934.

Reversed and remanded (with directions).

Bryan Williams, Cave & McPheeters for appellant.

(1) The order of the probate court of July 9, 1926, made at the June Term, 1926, of said court, approving the final settlement made by the appellant and discharging her was a final and an appealable order and judgment, and as it was not set aside during said June Term of said court, or at any time, and as no appeal was taken from it, it became a final order or adjudication. R. S. 1929, sec. 284; Smith v. Hanger, 150 Mo. 437, 51 S.W. 1052; Church v. Farrell, 166 Mo. 13, 65 S.W. 993; Goodman v. Griffith, 155 Mo.App. 574, 134 S.W. 1051; Caldwell v. Lockridge, 9 Mo. 358; May v. May, 189 Mo. 485, 88 S.W. 75; Lile v. Kincaid, 160 Mo.App. 297, 142 S.W. 434; State ex rel. v. Stephenson, 12 Mo. 178; Mueller v. Grunker, 145 Mo.App. 611, 123 S.W. 469; Michie v Grainger, 149 Mo.App. 301, 129 S.W. 983; Garner v. Tucker, 61 Mo. 427; Repetto v. Walton, 313 Mo. 197, 281 S.W. 411. (2) An order by the probate court overruling or dismissing exceptions to a final settlement is not an appealable order. R. S. 1929, sec. 284; Covington v. Chamblin, 156 Mo. 574, 57 S.W. 728; Rottman v. Schmucker, 94 Mo. 139, 7 S.W. 117; Reavis v. Reavis, 135 Mo.App. 199, 115 S.W. 1063. (3) Exceptions filed to a final settlement in a probate court will not carry the judgment approving the final settlement over to a term of the probate court subsequent to the term at which the final settlement is approved, and such exceptions will not prevent the approval of the final settlement becoming a final judgment upon the expiration of the term at which such final settlement is approved. State ex rel. Zeppenfeld v. Calhoun, 219 Mo.App. 482, 279 S.W. 188; Lampe v. St. Louis Brewing Assn., 204 Mo.App. 373, 299 S.W. 844; Marsala v. Marsala, 288 Mo. 501, 232 S.W. 1048; State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W. 916; Ford v. Ford, 24 S.W.2d 990; May Department Store v. Haid, 327 Mo. 567, 38 S.W.2d 44. (4) If the probate court had no jurisdiction over the subject-matter of the final settlement after the expiration of the June Term, 1926, then the parties could not confer jurisdiction by subsequently consenting to continuance of the exceptions. St. Louis v. Glasgow, 254 Mo. 262, 162 S.W. 596; Title Guaranty, etc., Co. v. Drennon, 208 S.W. 475; State v. Bulling, 100 Mo. 93, 12 S.W. 356; Brown v. Woody, 64 Mo. 550; State ex rel. v. Nixon, 232 Mo. 504, 134 S.W. 538; In re Drainage District v. Voltmer, 256 Mo. 162, 165 S.W. 338; Meierhoffer v. Hansel, 294 Mo. 195, 243 S.W. 131. (5) A probate court, being a statutory court of limited jurisdiction, has no equitable jurisdiction to amend its records after a final judgment approving a final settlement, irrespective of what might have been the intention of the parties, and the circuit court upon appeal could not act as a court of chancery and reform the probate court's records or read into the records of the probate court orders which did not appear in the records of said court. Const. of Mo., Art. VI, Secs. 34, 35; R. S. 1929, sec. 284; Burckhartt v. Helfrich, 77 Mo. 376; Davis v. Roberts, 226 S.W. 662, 206 Mo.App. 125; Mercantile Trust v. Boland, 14 S.W.2d 521; State ex rel. v. Bird, 253 Mo. 569, 162 S.W. 119; Bank of Willow Springs v. Lillibridge, 316 Mo. 974, 293 S.W. 116; State ex rel. Barlow v. Holtcamp, 322 Mo. 268, 14 S.W.2d 646; Dietrich v. Jones, 53 S.W.2d 1059. (6) The circuit court, if it had jurisdiction to entertain respondent's appeal, should have heard and determined the merits of respondent's exceptions instead of remanding the cause to the probate court for further action upon such exceptions. R. S. 1929, sec. 292; Bryant v. McCune, 49 Mo. 548; Hamill v. Jones, 315 Mo. 972, 287 S.W. 485; In re Berger's Estate, 152 Mo.App. 663, 133 S.W. 96; Coulter v. Lyda, 102 Mo.App. 401, 76 S.W. 720.

Peter T. Barrett and W. W. Henderson for respondent.

(1) The order of Judge Hartmann, overruling appellant's motion to dismiss, is not appealable, (a) because it is not a final judgment, being merely interlocutory; (b) because the same matters and things were passed upon by Judge Ryan at a previous term of the circuit court, and no appeal was taken from the order of Judge Ryan overruling the motion to dismiss and the motion for rehearing. Secs. 284, 1018, R. S. 1929; Case v. Smith, 257 S.W. 150. (2) When Emma Pillman, administratrix of the partnership estate of Pillman Brothers, appeared in the probate court as such administratrix, at the September and December Terms, 1926, of the St. Louis Probate Court, and consented to the continuance of the final settlement and the exceptions thereto, and the probate court made the orders, at such terms, continuing, to the succeeding terms, the final settlement and the exceptions thereto, without any reference to the order of approval and discharge, it must be presumed that the order of approval and discharge were set aside. 23 C. J. 1094, sec. 259; Townsend v. Munger, 9 Tex. 310; Bayne v. Garrett, 17 Tex. 335; State v. Trimble, 20 S.W.2d 17. (3) The proceedings on the filing of exceptions to a final settlement are in the nature of a suit in equity. 24 C. J. 1011, sec. 2457; Gray v. Harris, 43 Miss. 421; In re Hearness, 214 N.Y. 426, 108 N.E. 816; Gaines v. Eason, 130 Tenn. 86, 169 S.W. 309; Loomis v. Armstrong, 49 Mich. 521, 14 S.W. 505; In re Danforth, 66 Mo.App. 586; In re Meeker, 45 Mo.App. 192. The liability of the executor or administrator to the estate, or to creditors, is to be tested by equitable rules, regardless of mere technicalities, and this on an appeal as well as in the probate court. Brown v. Forscher, 43 Mich. 492, 5 N.W. 1011; 24 C. J. 1011. (4) Exceptions to final settlement are equitable in their nature and governed by the principles of equity procedure. Meeker v. Straat, 38 Mo.App. 239; Ainsley v. Richardson, 95 Mo.App. 332; In re Meeker's Estate, 45 Mo.App. 186; In re Danforth, 66 Mo.App. 590; Springfield Grocer Co. v. Walton, 95 Mo.App. 532; State ex rel. v. Bird, 253 Mo. 580; 3 Woerner (2 Ed.), sec. 541, p. 1851; Davis v. Roberts, 226 S.W. 664. When a bill is dismissed in equity for want of prosecution, the method of restoring it was by obtaining an order from the court discharging the decree dismissing the bill. Stone v. Locke, 48 Me. 427; Gregson v. Oswald, 1 Cox, 344. It is a wellsettled rule of equity procedure that where a bill is dismissed it may be reinstated, and this may be done on application. Warner v. Graves, 25 Ga. 369; Smith v. Brittenheim, 98 Ill. 188; Jones v. Kenny, 2 Bibb, 303; Tarpley v. Wilson, 38 Miss. 467. Exceptions to a final settlement are analogous to a master's report in chancery. The final settlement cannot be approved until the exceptions are passed on. Fletcher's Pl. & Pract. 602; Columbus v. S. & H. R. Co.'s Appeal, 109 F. 219. (5) A final settlement made pending litigation against the estate is unwarranted and will not defeat a recovery; but the pending suit may proceed and judgment be rendered against the personal representative, notwithstanding such settlement. 24 C. J. 1030, sec. 2485; Smiley v. Cockrell, 92 Mo. 105, 4 S.W. 443; State ex rel. v. Holtcamp, 266 Mo. 347; In re Hutton's Estate, 92 Mo.App. 139. (6) Final settlement cannot be approved and the administratrix discharged before the estate is fully administered. Smiley v. Cockrell, 92 Mo. 110; Coulter v. Lyda, 102 Mo.App. 413; Ryans v. Boogher, 169 Mo. 673; State ex rel. v. Holtcamp, 266 Mo. 347; Wyatt v. Stillman, 303 Mo. 106, 260 S.W. 73. (7) If the probate court approved the final settlement of the administratrix of the partnership estate of Pillman Brothers, but made no order discharging her, the probate court would still have jurisdiction of the estate and of the administratrix. Stoff v. Schuette, 240 S.W. 139; Rugle v. Webster, 55 Mo. 246; Rogers v. Johnson, 125 Mo. 213; 23 C. J. 1094, sec. 260; Ewing v. Parrish, 148 Mo.App. 500; 23 C. J. 1092, sec. 253; State ex rel. Noll v. Noll, 189 S.W. 583.

OPINION

Frank, J.

Appellant, Emma Pillman, was executrix of the will of Josiah Pillman, and as such was administratrix de bonis non of the partnership estate of Pillman Brothers, composed of Isaiah Pillman and Josiah Pillman, both of whom are dead. Josiah Pillman was adminsitrator of the partnership estate, but had not completed such administration at the time of his death. Otto Hampe was former public administrator and as such was and is the administrator of the individual estate of Isaiah Pillman.

At the June Term of the probate court and on June 1, 1925, appellant presented her final settlement as administratrix de bonis non of the partnership estate of Pillman Brothers. On the same day the final settlement was approved and the administratrix was discharged.

On June 10, during the same term, respondent filed exceptions to said final settlement, and on respondent's motion the probate court set aside the order theretofore made approving the final settlement and discharging the administratrix.

Thereafter the final settlement and exceptions thereto were continued from time to time until the June, 1926, term, of said probate court. At said June, 1926, term,...