In re Woods' Estate

• Decision Date: 05 May 1924
• Docket Number: No. 15027.,15027.
• Citation: 217 Mo. App. 257,261 S.W. 943
• Parties: In re WOODS' ESTATE. WOODS et al. v. YARNELL.
• Court: Missouri Court of Appeals

261 S.W. 943

217 Mo. App. 257

In re WOODS' ESTATE WOODS et al. v. YARNELL.

No. 15027.

Kansas City Court of Appeals. Missouri.

May 5, 1924.

Appeal from Circuit Court, Morgan County; Henry J. Westhues, Judge.

In the matter of the estate of Peter George Woods, deceased. Petition by Margaret D Woods and Richard H. Woods, executors of the Peter George Woods estate, against Nancy M. Yarnell, to extend the time for final settlement of the estate. From an order of the circuit court dismissing an appeal taken by plaintiffs from an order of the probate court of Morgan county, plaintiffs appeal. Affirmed.

See, also, 245 S. W. 368.

John A. Blevins, of St. Louis, for appellants.

John J. Jones, of Versailles, and Roy D. Williams, of Boonville, for respondent.

BLAND, J.

This is an appeal from an order of the circut court dismissing an appeal taken by the appellants from an order of the probate court of Morgan county refusing to extend the time for final settlement of the estate of Dr. Peter George Woods, deceased. The petition of the executors, the appellants herein, asking for a continuance from the February term, 1923, to the May term, 1923, of the probate court, is in part as follows:

"That said estate is not ready nor in condition for final settlement. That there are unadministered personal assets belonging to said estate which will in due time be collected for the benefit of said estate. That the special bequest to Herbert Spencer Woods, provided for by the will of the deceased, has not been paid. Your applicants further represent and state that, because of the scarcity of money for investment in real estate, and the prevailing market conditions which have existed and now exist, they have not had proper time to comply with the provisions of the will of the deceased, and have not been enabled to sell and dispose of the real estate belonging to said estate, as by said will and the expressed wishes of ail testator they are directed to do; that they wish to fulfill the desire of the testator with respect to said real estate, and will endeavor so to do; that the income therefrom is being collected, conserved and used for the benefit and preservation of said estate, and that the taxes and insurance premiums are all paid to date; that it was manifestly the desire of the testator that his property should be disposed of without sacrifice in value if possible, and that they have endeavored to comply with the said expressed wishes of the testator, but for the reasons herein assigned have been unable to do so. Said executors state that they are endeavoring to increase the income of said estate. Your applicants further state that the deceased, Dr. Peter George Woods, by the terms of his will, particularly asks that the court shall grant extensions of time for the reasons and purposes aforesaid."

We think that the court properly dismissed the appeal from the probate court. There is no contention that an appeal of this kind is provided for in section 282, R. S. 1919, governing appeals from the probate court to the circuit court. This section provides for 15 instances in which such appeals may be taken. The appellants claim that they had the right to appeal under section 2436, It. S. 1919, providing that circuit court shall have "* * * appellate jurisdiction from the judgments and orders of county courts, probate courts and justices of the peace, in all cases not expressly prohibited by law, and shall possess a superintending control over them, and a general control over executors, administrators, guardians, curators, minors, idiots, lunatics and persons of unsound mind." But it has been frequently held that this section does not allow appeal except from final judgments and orders of the probate court. Coleman v. Farrar, 112 Mo. 54, 72, 73, 20 S. W. 441; State ex rel. v. McQuillin, 246 Mo. 586, 595, 151 S. W. 444 ; Haynes v. Cass County Court, 135 Mo. App. 108, 113, 114, 115 S. W. 1084 ; In the Matter of Crouse, 140 Mo. App. 545, 551, 120 S. W. 666; In re Estate of Rooney, 163 Mo. App. 389, 143 S. W. 888, In the last case the St. Louis Court of Appeals seems to unduly restrict the operation of section 2436, but the conclusion reached in that case is undoubtedly correct.

Appellants cite the case of Brockman v. Webb, 189 Mo. App. 475, 176 S. W. 1082, and Stanton v. Johnson Estate, 177 Mo. App. 54, 163 S. W. 296. In the Brockman Case it was held that an order of the probate court setting aside a judgment allowing a claim against an estate was appealable under section 2436. Of course, such an order was a final judgment. It was a final determination of the rights of the parties in the controversy. The same may be said of the Stanton Case, which was a case where the probate court had refused to order...