Jenkins v. Morrow

• Decision Date: 17 February 1908
• Citation: 109 S.W. 1051,131 Mo. App. 288
• Parties: JENKINS et al. v. MORROW et al.
• Court: Missouri Court of Appeals

109 S.W. 1051

131 Mo. App. 288

JENKINS et al. v. MORROW et al.

Kansas City Court of Appeals. Missouri.

February 17, 1908.

Rehearing Denied May 4, 1908.

1. INSURANCE—MUTUAL BENEFIT CERTIFICATE —ASSIGNMENT.

An assignment of a part of the proceeds of a mutual benefit certificate to persons not creditors of the insured was void.

2. JUDGMENT — PROBATE COURT—COLLATERAL ATTACK.

A judgment of the probate court in matters wherein it has jurisdiction of the parties and the subject-matter is conclusive against collateral attack.

3. SAME—JURISDICTIONAL DEFECTS.

An objection to the jurisdiction of the court by which a judgment was rendered may be raised at any time, in any kind of a proceeding.

4. ADMINISTRATORS—CLAIMS—DUTY TO FILE.

Rev. St. 1899, § 195 (Ann. St. 1906, p. 406), provides that the probate court shall not allow any demand against any estate unless the claimant shall first make oath in open court, or file his affidavit with such claim, stating that his account or demand as presented is correct; and section 197 (Ann. St. 1906, p. 407) declares that a person having a demand shall give notice to the administrator of his intention to present it for allowance. Held, that a claim against an estate must be presented in the manner prescribed by the claimant, and that the administrator has no power or authority to himself present the claim of a third person against the estate for allowance.

5. SAME—PROBATE COURT—JURISDICTION—ALLOWANCE OF CLAIM.

Where a claim against an estate was erroneously presented to the probate court for allowance by the administrator, instead of by the claimant, accompanied by the statutory affidavit required by Rev. St. 1899, § 195 (Ann. St. 1906, p. 406), a judgment of the probate court, allowing the claim and directing its payment out of the assets of the estate, was void for want of jurisdiction.

6. COURTS—PROBATE COURTS—EQUITY JURISDICTION.

An administrator, finding an assignment of a portion of the proceeds of an insurance certificate among intestate's papers, presented such assignment to the probate court, and prayed that he be instructed whether to pay the assigned portion to the assignees, and that they be cited to appear, in which proceeding a judgment was rendered directing the payment of the assigned portion to the assignees, without their ever having filed any claim therefor against the estate. Held, that such proceeding was an exercise of equitable jurisdiction akin to the remedy of interplea, which was beyond the powers of the probate court.

Appeal from Circuit Court, Johnson County; N. M. Bradley, Judge.

Action by Charles O. Jenkins and others against Walter E. Morrow and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

F. W. Gifford, A. B. Logan, and J. W. Suddath, for appellants. O. L. Houts and Jas. A. Kemper, for respondents.

BROADDUS, P. J.

This is a suit for money had and received. The following statement of the facts appears in the record: "On the 7th of December, 1894, Coleman O. Jenkins was a resident of Odessa, Lafayette county, Mo. Prior to that date he had taken out an insurance policy on his life for the sum of $5,000, which policy was issued by the Knights Templars & Masons Indemnity Company, doing business on the assessment plan. This policy was made payable to Martha C. Jenkins, his wife. On said 7th day of December, 1894, the contract of agreement set out in the finding of facts was duly executed by the said Coleman O. Jenkins and Martha C. Jenkins, on the one part and these defendants, Morrow and Schofield, on the other part, by the terms of which the said Morrow and Schofield were to assume and pay dues, fees, and assessments that might become due on said policy, and at the death of Coleman O. Jenkins were to receive three-fifths of all the moneys that might be due on said policy. Some time later, this policy was surrendered, and a new policy was issued for the same amount, but said last policy was made payable to the administrator of the estate of Coleman O. Jenkins. No mention therein made or attached thereto of the defendants or their agreement. The said Coleman O. Jenkins died intestate about the 4th of August, 1902, in Jackson county, Mo., leaving surviving him as his sole heirs at law these plaintiffs; Chas. O. Jenkins and Ernest Jenkins being minors. One Charles R. Creasy was by the probate court of Jackson county, Mo., appointed administrator of his estate. The said administrator inventoried this policy and collected from said insurance company the sum of $4,880. Afterwards on the ___ day of November, 1902, the said administrator without notice to any one presented to the probate court of Jackson county, Mo., a petition, as follows (omitting the caption): `Now comes said administrator and shows to the court: That when he took charge of said estate he found only a policy of insurance issued by the Knights Templars & Masons Life Indemnity Company, No. 1322, for the sum of five thousand dollars ($5,000.00). That since said appointment he has collected said sum. That he finds among the books and papers of the decedent a contract entered into between the said Coleman O. Jenkins on the 7th day of December, 1894, and Walter E. Morrow and Linn J. Schofield, which contract so found by him is in words and figures following: * * *' That pursuant to said contract the said Morrow and Schofield claim all the proceeds of said policy except the sum of two thousand dollars ($2,000.00). The administrator prays the court to cite the said Walter E. Morrow and Linn J. Schofield to appear in this court and make good their claim, if any they have, under said contract to said proceeds, excepting the sum of two thousand dollars ($2,000.00), and this administrator also prays the court to construe said contract and direct him as to how he shall credit his inventories filed herein with the proceeds of said policy, and also direct him in what manner he shall hereafter make his settlements of the estate of the deceased with reference to the amount collected on said policy."

The hearing of the application was continued until the 25th day of November, 1902, when the court made the following entry of record: "In the estate of Coleman O. Jenkins, deceased, Charles R. Creasy, Administrator. 5842. Instruction as to Insurance Policy. Now on this day the petition of said administrator, heretofore filed herein, and by the court continued to this day for hearing, praying for instructions how to dispose of insurance policy belonging to estate of said deceased, is by the court taken up, and the court finds: That under a contract (a copy of said contract being filed herein) Walter E. Morrow and Linn J. Schofield are entitled to a part of the insurance money in contract mentioned, in the sum of $2,880, less the sum of $50 to administrator for services in collecting said sum and $6.60 for traveling expenses and $65.04, being three-fifths of expenses of administration, leaving as the net sum to be paid said Morrow and Schofield $2,758.36, which said sum said administrator is hereby ordered to pay to the said Morrow and Schofield and take their receipt therefor, and that he be credited therewith in his...