Keele v. Weeks
Citation | 94 S.W. 775,118 Mo. App. 262 |
Parties | KEELE v. WEEKS. |
Decision Date | 24 April 1906 |
Court | Court of Appeal of Missouri (US) |
Rev. St. 1899, § 214, authorizes the court to vacate an order allowing a claim against the estate of a decedent on the petition of an heir furnishing satisfactory evidence of the fact that the demand was improperly allowed. An heir applied for an order vacating an allowance of a claim against the decedent. The court, in entering judgment vacating the allowance, found that the administrator made a mistake in confessing judgment, and that the claim was improperly allowed. Held, that the findings showed that the court was satisfied that the showing made by the heir established a probability against the propriety of the allowance of the claim, sufficient to justify the court to vacate the order.
5. SAME.
Where a proceeding to establish a demand against the estate of a decedent was transferred to the circuit court, as authorized by Rev. St. 1899, § 1760, because the judge of probate was disqualified, and the circuit court allowed the claim without hearing any evidence and after refusing an heir of the decedent leave to contest it, the heir was entitled to pursue the remedy prescribed by section 214, authorizing an heir to pray for an order vacating an order allowing a demand against the estate of the decedent.
Appeal from Circuit Court, Montgomery County; John M. Barker, Judge.
Proceedings by Nancy M. Keele against S. T. Weeks, administrator of John T. Keele, deceased, to establish a claim against the deceased. From a judgment setting aside the allowance of the claim on the application of Isaac T. Keele, an heir of the deceased, claimant appeals. Affirmed.
On December 24, 1882, John T. Keele died intestate in Montgomery county, Mo., leaving surviving him his mother, Nancy M. Keele, who is the present appellant, his brother Isaac T. Keele, the respondent, other brothers, and some sisters. The deceased possessed considerable land and personal property. Letters of administration were not granted on his estate for aught that is shown, until the spring of 1894, when S. T. Weeks was appointed administrator. At the July term of the probate court of said county the following instrument was presented for allowance against the estate: The judge of the probate court was disqualified to sit in the case and certified the proceeding to the circuit court of Montgomery county. When the demand came on for hearing in the latter court, Isaac T. Keele appeared in person and by his attorney and asked leave to contest the allowance in behalf of himself as brother and heir of the deceased. The attorney for Nancy Keele, the claimant, objected to Isaac Keele appearing as a contestant at the hearing, on the ground that he was not a party to the action, and that the proper party to resist the demand was S. T. Weeks, administrator of the estate. The court refused to permit respondent to defend. The administrator of the estate stated to the circuit court that he had investigated the claim, and his wish was that it be allowed. The court allowed the demand, with interest on the principal from October 3, 1882, to November 25, 1904—a total allowance of $2,328. The proceeding was certified back to the probate court, where the allowance was spread on the record and classified. After this was done respondent, in February, 1905, and within four months after the demand was allowed, appeared in the probate court and filed a motion to set aside and vacate the allowance against the estate of his brother, setting out the facts we have recited and alleging a conspiracy between appellant, Nancy Keele, mother of said Isaac, and S. T. Weeks, administrator of the estate, to prevent Mrs. Keele's claim from being contested and have it allowed. The motion further alleged that the supposed note was barred by the statute of limitations, if in fact it was a note, but that it was executed by the deceased as his will. The motion further alleged that it would be unjust to permit the demand to stand against the estate on account of laches of appellant and because she had improperly converted to her own use assets of her deceased son much more than the value of the demand. The attorney who had represented respondent was elected judge of the probate court before this motion to vacate the allowance was filed, and was disqualified to sit in the proceeding. Wherefore it was certified from the probate court to the circuit court. The judge of the latter court had been connected with the controversy, and was likewise disqualified. So a special judge was chosen to sit in the cause. The motion to vacate was heard May 12, 1905.
In behalf of the mover; Isaac T. Keele, Hon. James F. Ball, now judge of the Montgomery probate court, testified as follows: On cross-examination he testified as follows:
This was about all the evidence introduced in support of the motion to vacate. In opposition to the motion, appellant introduced in evidence the note or demand against the estate and the agreement to transfer the demand from the probate court to the circuit court to be heard in the latter court. S. P. Sailor testified that he knew John Keele in his lifetime. That shortly before his death deceased asked the witness to write an instrument for him (deceased) saying that he wanted his mother to get what property he had, because she had done more for him than any one else. Sailor went to the home of the father of the deceased and wrote the note or document in controversy, which was attested by J. P. Bailey and Rufus W. Hunley, after John Keele had signed it. That the latter raised up in bed and signed it; his mind being in good condition then. J. P. Bailey...
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State ex rel. Bostian v. Ridge
...1939, Sec. 211; consequently relator is in no position to question respondent's jurisdiction. Secs. 211, 283, R.S. 1939; Keele v. Weeks, 118 Mo. App. 262, 94 S.W. 775; McCormick v. Groh, 198 S.W. 445; In re Ford, 157 Mo. App. 141, 137 S.W. 32; Tower v. Moore, 52 Mo. 118; King v. Stotts' Est......
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State ex rel. Bostian v. Ridge
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