Jacobs v. Jacobs

• Decision Date: 02 December 1889
• Citation: 99 Mo. 427,12 S.W. 457
• Parties: JACOBS et al. v. JACOBS.
• Court: Missouri Supreme Court

12 S.W. 457

99 Mo. 427

JACOBS et al. v. JACOBS.

Supreme Court of Missouri.

December 2, 1889.

EXECUTORS AND ADMINISTRATORS — SETTLEMENTS — ALLOWANCES.

1. An executrix who has accounted for the full amount received by the compromise of a note belonging to the estate, for less than its inventoried value is not liable for more than is thus accounted for, where it is shown that the compromise was made in good faith, and that more money was realized thereby than would have been by an attempt to enforce the payment of the note.

2. Rev. St. Mo. § 230, provides that upon every settlement the executor shall show that every claim for which disbursements have been made has been allowed by the court according to law, or shall produce such proof of the demand as would enable the claimant to recover in a suit at law. Held that, upon the production of the latter proof, credit will be allowed for the disbursement, though the voucher for such credit was not allowed as a demand against the estate.

3. Under Rev. St. Mo. § 229, providing that executors and administrators shall be allowed "all reasonable charges for legal advice and service, an executrix is entitled to attorney's fees for defending her final settlement in the probate and circuit courts.

4. An executrix is not entitled to an allowance for commissions paid her agents for effecting the sale of real estate of her testator, beyond the "commission of 5 per cent. * * * on money arising from the sale of real estate," allowed to executors and administrators by Rev. St. Mo. § 229.

Appeal from circuit court, Boone county; G. H. BURCKHARTT, Judge.

Rev. St. Mo. § 230, provides that upon every settlement the executor or administrator shall show that every claim for which disbursements have been made has been allowed by the court according to law, or shall produce such proof of the demand as would enable the claimant to recover in a suit at law.

A. M. Hough and H. Clay Ewing, for appellants. Thos. Thoroughman and J. K. Hansbrough, for respondent.

BRACE, J.

At the November term, 1883, of the probate court of Boone county, the respondent, executrix of George R. Jacobs, deceased, filed in said court her account for final settlement; to which the appellants took exceptions, and thereafter filed 19 objections to the approval of such final settlement, all of which were either abandoned on the trial or overruled by the court, except 18 and 19, which were partially sustained; and both parties appealed to the circuit court. The case coming on for trial in the circuit court the plaintiffs stated "that they abandoned all their exceptions, except those numbered 2; the item of $1,302.86, mentioned in exception 17; and the items in exceptions 18 and 19, relating to commissions for the sale of real estate, and taxes paid by defendant on the John F. Jacobs real estate, and penalties on delinquent taxes; and all attorney's fees in final settlement, and the Caulfield note, mentioned in exception 2," — and, in connection with this statement, read exceptions 2, 17, 18, and 19, theretofore filed in the probate court. The circuit court overruled plaintiff's exception No. 2; their objections to the credit item of $1,302.86 in the executrix's first annual settlement, objected to in exception 17; sustained exceptions 18 and 19, as to the items of credit for taxes paid by the executrix on the John F. Jacobs land, and for penalties on delinquent taxes; overruled them as to items of credit for commissions paid agents for the sale of real estate, and for attorneys' fees on final settlement, and in the matter of the Caulfield note; stated an account between the executrix and the estate upon the basis of the balance of $168.33 due the estate, as shown by her settlement filed in the probate court, by adding to such balance the amount of the credits taken for penalties on tax-bills, and interest, amounting to the sum of $30.93, the credits taken for taxes paid on the John F. Jacobs land, and interest, amounting to $463.10, making the aggregate debits $662.36; allowed the executrix a credit of $25 for attorney's fee in defending the settlement in the probate court, and $300 in the circuit court, — showing a balance due the estate of $337.36 at the date of the judgment in the circuit court; rendered judgment therefor, and ordered same certified to probate court for distribution under the will, and that the costs of the appeal from the probate court, and all other costs under objections not sustained, be paid by the objectors, who now appeal from that judgment.

1. Plaintiff's exception No. 2, to the executrix's account for final settlement, is as follows: "(2) Defendant has failed to account for a balance of the inventoried note of B. G. Caulfield and Fanny Deaver, with interest thereon; the said balance being, as shown by inventory and the collection reported on said note in defendant's first settlement, $12,457; which sum should be charged to defendant, with interest thereon, at 10 per cent. compound, from April 16, 1878." The note of B. G. Caulfield and Fanny Deaver, referred to in this exception, was dated August 1, 1867, for $20,000, payable to the testator, George R. Jacobs, three years after date, with interest from maturity, at the rate of 8 per cent. per annum. To secure this note, and six interest notes for $800 each, payable in 6, 12, 18, 24, 30, and 36 months, of same date, a deed of trust of the same date was executed by B. G. Caulfield, his wife, Laura Caulfield, and Fanny Deaver upon certain real estate in the city of St. Louis belonging to Mrs. Deaver and Mrs. Caulfield. The interest notes were paid as they became due, and shortly after the principal note became due the time of its payment was extended by an agreement indorsed on the note, signed by Mrs. Deaver, B. G. Caulfield, and the testator, Dr. Jacobs, in consideration of the payment of 10 instead of 8 per cent., as specified in the note. Interest at 10 per cent. was thereafter paid on the note to August 1, 1876, and on the 5th of April, 1877, it was inventoried, and came into the hands of the executors, at $21,361.10, — the amount of the principal and interest at 10 per cent. from August 1, 1876, to April 5, 1877, the date of the inventory. The plaintiff introduced evidence tending to show that the real estate owned by Mrs. Deaver in the years 1877 and 1878 was worth an amount largely in excess of the amount of said note. The executrix introduced evidence tending to show that Mrs. Deaver, during those years, although the owner of valuable real estate, was in embarrassed circumstances; that she was largely in debt; and that her real estate was heavily incumbered, — to use her own language, that in 1878 "her financial condition was very bad. * * * If the Jacobs debt had been forced upon me, it could not possibly have been made." The action of the executrix in regard to this note, as well as the considerations which...