In re Whitlow's Estate

• Decision Date: 04 November 1913
• Docket Number: No. 13079.,13079.
• Citation: 167 S.W. 463,184 Mo. App. 229
• Parties: In re WHITLOW'S ESTATE. SKINNER v. WHITLOW.
• Court: Missouri Court of Appeals

167 S.W. 463

184 Mo. A. 229

In re WHITLOW'S ESTATE SKINNER v. WHITLOW.

No. 13079.

St. Louis Court of Appeals. Missouri.

November 4, 1913.

Rehearing Denied January 20, 1914.

1. PARTNERSHIP (§ 22)—EXISTENCE—CONTRACTS.

A partnership, as between the members, results from their agreement evidencing an intention to create a partnership.

2. PARTNERSHIP (§ 22)—EXISTENCE—CONTRACTS.

Where parties entered into a written agreement, the question whether they formed thereby a partnership must be determined by ascertaining their intention from a construction of the writing itself, in view of the surrounding circumstances.

3. PARTNERSHIP (§ 9)—EXISTENCE—CONTRACTS.

An agreement between a contractor for railroad work and S., which shows that the contractor desired that S. should superintend the work, and that in consideration thereof he should receive a half of the proceeds, did not create a partnership between them, especially where it appeared that the contractor had an outfit for the work.

4. CONTRACTS (§ 147)—CONSTRUCTION—INTENTION OF PARTIES.

The court in construing a contract must ascertain the actual intention of the parties as expressed in the writing employed by them and consistent therewith.

5. PARTNERSHIP (§ 5)—EXISTENCE—CONTRACTS.

The rule that a sharing of profits raises a prima facie presumption of a partnership as between the parties sharing in the profits is applicable only where there is no proof of the actual agreement between the parties; and, where there is an actual agreement, the question of partnership must be determined therefrom.

6. WITNESSES (§ 140)—TRANSACTIONS WITH DECEASED PERSONS.

On hearing exceptions to the final settlement of the administrator of a partnership estate, testimony of the administrator to transactions and conversations between himself and decedent was incompetent.

7. WITNESSES (§ 175)—TRANSACTIONS WITH DECEASED PERSONS.

Where, on the hearing of exceptions to the final settlement of the administrator of a partnership estate, the exceptor introduced portions of a referee's report as bearing on the question of res judicata, to show that the existence of a partnership had been litigated in a former cause, the administrator was not thereby rendered competent to testify to transactions and conversations with decedent, merely because the report contained incompetent testimony of the administrator.

8. WITNESSES (§ 175)—TRANSACTIONS WITH DECEASED PERSONS.

A party filing exceptions to the final settlement of an administrator of a partnership estate did not waive the incompetency of the administrator to testify to transactions with decedent, by introducing a referee's report as bearing on the question of res judicata to show that the existence of a partnership had been litigated in a former cause, though the report contained incompetent testimony of the administrator.

9. APPEAL AND ERROR (§ 931)—FINDINGS—REVIEW.

Where a cause was tried by the court without a jury, it will not be presumed that any incompetent testimony contained in a referee's report received in evidence had any influence on the court, especially where like testimony was expressly excluded.

10. EXECUTORS AND ADMINISTRATORS (§ 29)— APPOINTMENT OF ADMINISTRATOR—TITLE OF ADMINISTRATOR.

One acting as administrator under a valid appointment good until set aside has a qualified title to the assets, and he holds the property as trustee for those entitled to share therein.

11. PARTNERSHIP (§ 251)—DEATH OF PARTNER—TITLE OF ADMINISTRATOR.

An administrator of a partnership estate is not entitled to possession of chattels not the assets of the partnership as between the deceased partner and the administrator.

12. EXECUTORS AND ADMINISTRATORS (§ 482) —FINAL SETTLEMENT—CREDITS.

The court, on the final settlement of an administrator, properly refused a credit taken by the administrator for the premium paid on his bond as administrator.

13. EXECUTORS AND ADMINISTRATORS (§ 111) —FINAL SETTLEMENT—ATTORNEY'S FEES— ALLOWANCE.

The court, on final settlement of an administrator, may allow reasonable attorney's fees for services rendered the estate.

14. EXECUTORS AND ADMINISTRATORS (§ 510) —SETTLEMENT OF ACCOUNTS—APPEAL—PRESUMPTIONS.

A credit, allowed by the probate court on final settlement of an administrator for moneys advanced to the estate, must be presumed to be proper in the absence of any evidence to the contrary.

15. PARTNERSHIP (§ 252)—ACCOUNTING—LIABILITY—STATUTORY PROVISIONS.

Rev. St. 1909, §§ 240, 241, authorizing the probate court to give credit to an administrator for debts charged in the inventory as due the estate, where it is satisfied that the debt could not be collected by due diligence, etc., are applicable to partnership assets by reason of section 99, and the administrator of a partnership estate is entitled to credit for debts, charged in the inventory as due the estate, where the same could not be collected by the exercise of due diligence.

16. EXECUTORS AND ADMINISTRATORS (§ 111) —COUNSEL FEES—ALLOWANCE.

An administrator cannot, as a general rule, be allowed counsel fees incurred for services rendered in defense of his own personal interest, or where the litigation is in reality between the beneficiaries, and not for the benefit or in the interest of the estate as a whole.

17. EXECUTORS AND ADMINISTRATORS (§ 511) —COUNSEL FEES—ALLOWANCE.

Where, on final settlement of an administrator of a partnership estate, the principal question litigated involved the distribution of assets remaining in the administrator's hands, and on the facts disclosed the objector to the settlement was entitled to all thereof, the administrator was not entitled to counsel fees for defending the settlement against the claim of the objector.

18. EXECUTORS AND ADMINISTRATORS (§ 111) —ACCOUNTS—COUNSEL FEES.

The court, on final settlement of an administrator, should, in determining the question of allowance of counsel fees, distinguish between counsel fees chargeable against the estate and those for which the administrator is personally liable.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Proceedings by Joseph W. Skinner, administrator of the partnership estate of Warner Whitlow, for final settlement of his accounts in which Addie L. Whitlow filed exceptions. From a judgment overruling the exceptions and settling the account of the administrator, Addie L. Whitlow appeals. Reversed and remanded, with directions.

W. M. Williams and John Cosgrove, both of Boonville, for appellant. Frank H. Haskins, of St. Louis, for respondent.

ALLEN, J.

This is an appeal from a judgment overruling exceptions of appellant, the widow of Warner Whitlow, deceased, to the final settlement of respondent, Joseph W. Skinner, as administrator of the partnership estate of "Warner Whitlow"; the respondent having administered thereupon as the surviving partner. The record discloses that some time prior to his death Warner Whitlow had a contract for doing certain railroad work in the state of Arkansas, and that for the purpose of carrying out this said contract he entered into an agreement with respondent Skinner, as follows:

"This agreement made this 11th day of July, A. D. 1901, by and between Warner Whitlow, party of the first part and J. W. Skinner, party of the second part, Witnesseth: That said Warner Whitlow having entered into a contract with J. H. Reynolds & Co. to do the pile driving, bridging and pipe laying on the White River Railway to about Sta. 1010 and the spur track to the phosphate mine and whereas the said Whitlow is desirous that the said J. W. Skinner shall superintend the construction of said work therefore it is mutually agreed between the parties hereto, that in consideration of the said J. W. Skinner superintending said work the profits arising from said work are to be equally divided between the said Warner Whitlow and J. W. Skinner."

After the completion of the railroad work in question, the "outfit" used in doing the same, and which consisted of tools, horses, scrapers, pile drivers, etc., was brought to the city of St. Louis. Whitlow died on the 28th day of July, 1904, and thereafter Skinner applied to the probate court of the city of St. Louis for letters of administration as his surviving partner. Such letters were granted to respondent as the surviving partner, and later the property here involved was sold by order of the probate court. It appears that Mrs. Skinner, wife of respondent, presented a claim against the partnership estate for a sum in excess of $1,500. Her claim was allowed by the probate court for $1,207.05, and from the judgment allowing the same the appellant herein appealed to the circuit court. The latter court referred the cause to a referee who, upon reporting to the court, recommended the allowance of a portion of this claim. In passing upon exceptions, to the referee's report, the court found that the referee erred in holding that a partnership existed between respondent and Whitlow, and ordered and adjudged that the claimant, Mrs. Skinner, take nothing by her suit. From the latter judgment of the circuit court Mrs. Skinner was granted an appeal to this court, but her appeal was thereafter dismissed for failure to prosecute the same, and the judgment of the circuit court in the premises became final. Thereafter the respondent, as administrator, filed his final settlement of the alleged partnership estate in the probate court. In this settlement the respondent charged himself with cash on hand amounting to $2,317.30, and took credit for the following disbursements:

"Advertising final settlement, $5.25; attorney's fee, $100.00; probate court costs, $12.50; bond premium, $5.00; `return of cash advanced by Joseph W. Skinner, $99.50;' `accounts of no value, $1,321.85.'"

These credits totaled $1,544.99, leaving a balance of $773.11. The probate court approved this settlement, and made an order of distribution, to the effect that Skinner, the respondent, should retain one-half...