Ladd v. Stephens

• Decision Date: 21 November 1898
• Citation: 147 Mo. 319,48 S.W. 915
• Parties: LADD et al. v. STEPHENS et al.
• Court: Missouri Supreme Court

48 S.W. 915

147 Mo. 319

LADD et al. v. STEPHENS et al.

Supreme Court of Missouri.

November 21, 1898.

ADMINISTRATORS — SETTLEMENT — EXCEPTIONS — RES JUDICATA — ADVANCEMENT — COMMISSIONS — BURDEN OF PROOF.

1. Matters with respect to which judgments had been entered by courts of competent jurisdiction, which judgments had been certified to the probate court, and classified by it, and paid by the administrators, cannot be inquired into on exceptions to final settlement of the administrators; being res judicata.

2. Exceptions to matters allowed by the probate court, and consequently prima facie right and proper, will not be considered; being supported by no evidence to impeach the allowances.

3. Where a father advances to his son stock of the par value of $5,000, and enters into a contract with him reciting that he has given him the sum of $5,000, this sum, and not the actual value of the stock, is the amount of the advancement. So, too, where he directs a bank to issue $5,000 of his stock to another child.

4. The dividends derived from stock given as an advancement do not have to be brought into hotchpot, as part of the advancement.

5. Administrators are entitled to commissions on the actual value of assets distributed by them.

6. Allowance of proper commissions to administrators may be made at any time by any court before which their accounts are drawn in question.

7. Traveling expenses in the care and preservation of the estate are properly allowed administrators, in addition to commissions.

8. Administrators are properly credited with the difference between the par value of bonds and what they sell them for; it not appearing they were sold for less than their market value.

9. The burden of proof is on one who charges maladministration by administrators, except that, when they admit or it is shown that they have received assets, they must account for or produce them.

In banc. Appeal from circuit court, Howard county.

Fannie E. Ladd and others excepted to report of the referee on exceptions to the final settlement of W. Speed Stephens and another, administrators of Joseph L. Stephens, deceased, which being overruled, and new trial denied, they appeal. Affirmed.

Appeal from the final settlement of W. Speed Stephens and Lon V. Stephens, administrators of the estate of their father, Joseph L. Stephens, deceased. The parties complaining are Fannie E. Ladd, the former widow, by a second marriage, of Joseph L. Stephens, since remarried to William M. Ladd; William M. Ladd, her husband; and Custis G. Stephens and Joseph L. Stephens, minors, children of the second marriage, by their curator, etc.; and the defendants are William Speed Stephens and Lon V. Stephens, children of the first marriage, as administrators of their father's estate. By his first marriage Joseph L. Stephens had six children, who survived him, namely, William Speed Stephens, Lon V. Stephens, Mittie N. Stephens (now Mrs. Leonard), Alexander H. Stephens, Rhoda E. Stephens (now Mrs. Johnson), and Maggie B. Stephens, (now Mrs. Moore). In 1878 Joseph L. Stephens married Miss Fannie Jones, by which union there were born Custis G. and Joseph L., who are still minors. There was an antenuptial contract between Joseph L. Stephens and Miss Fannie Jones, by which it was agreed that, instead of dower, she should retain her own property, and, if she survived him, she should take a child's share of his property for life; remainder after her death to go to the heirs at law of Joseph L. Stephens. Joseph L. Stephens died on August 11, 1881; and on the 5th of September, 1881, his two sons, defendants herein, were appointed and duly qualified as the administrators of his estate. Within two years thereafter the estate was substantially administered, the debts paid, and nearly all of the property distributed, under the direction of the probate court. The administrators advertised that they would make final settlement at the September term, 1883; but at that time no trustee for Mrs. Ladd, and no curator for the minor children of the second marriage, had been appointed, so the matter was allowed to remain open until the December term, 1884, when the probate court continued the final settlement until further order of the court. At the suit of Mrs. Ladd, the circuit court of Cooper county on November 14, 1885, appointed J. T. Pigott her trustee. The administrators advertised a second time that they would make final settlement at the March term, 1893, and at that term filed their statements, vouchers, notice, etc.; and the matter was set for June 16, but was continued from day to day until June 22, 1893, on which day Mrs. Ladd and her minor children filed exceptions to the final settlement, setting up the following claims: (1) That Mrs. Ladd claimed one-ninth of the estate absolutely; (2) that when W. Speed Stephens, Lon V. Stephens, and Mittie Leonard, respectively, became of legal age, their father advanced them a large sum of money, unknown, but believed to be more than $5,000 each; (3) that their father educated W. Speed Stephens, Lon V. Stephens, and Mittie Leonard, at an expense of over $3,000 each. The exceptors asked that the alleged advances be brought into hotchpot, or, failing so to do, that these heirs be debarred from any distributive share of the estate; that the court ascertain an amount equal to the sums expended by their father for the education of the three children aforesaid, and allow a similar amount for the education of the minor children of the second marriage; that the court appoint an expert accountant to verify the settlements of the administrators, and ascertain whether any errors or omissions or improper charges or allowances were embodied in the settlements. They alleged that a large amount of worthless stocks were inventoried at their face value, of more than $105,000, and asked the court to ascertain what, if any, commission the administrators had charged on these worthless stocks and other worthless notes or accounts. The probate court heard the exceptions, and on July 8, 1893, overruled them, and approved the final settlement, and exceptors appealed. After the case reached the circuit court, exceptors, on October 16, 1893, applied for a change of venue, which on January 30, 1894, was granted, and the case was sent to the circuit court of Howard county. By consent of parties, and on order of the court, Thomas B. Wright was appointed referee, and the cause continued from term to term until March 26, 1895, when the referee filed his report. The referee began the hearing on June 28, 1894, and continued it from time to time, and concluded it on August 20, 1894. Thereafter, on September 21st, certain other facts were agreed to by stipulation, in which it was also agreed that the case should be finally closed and submitted to the referee. W. Speed Stephens and Lon V. Stephens were examined orally at great length; and Mrs. Mittie Leonard's testimony, as was also that of Mrs. Fannie Ladd, was submitted in writing. On the 30th day of July, 1894, exceptors filed before the referee 13 additional exceptions; and on the 8th of November, 1894 (48 days after the case before the referee was finally closed), the exceptors handed the referee 51 additional exceptions. No objection was made by defendants to this loose practice, and the referee considered and acted on all the exceptions, and on the 26th of March, 1895, he made his report to the circuit court. He sustained the exceptions numbered 1, 2, 5, 6, and 7, relating to stocks given by J. L. Stephens to W. Speed Stephens, Lon V. Stephens, and Mittie Leonard, held them to be advancements and not gifts, required them to be brought into hotchpot, and charged the administrators $15,000 in respect thereof. He sustained exception No. 9, relating to two mirrors and one leather-back chair, which had been appraised at $215, and which the administrators had purchased at public sale for $110, and charged them with $105, the difference between the price they brought at public sale and what the referee found to be their true value. He sustained exception No. 22, and charged the administrators with $265, which he found to be the difference between the face value and the actual value of stock of the Central National Bank of Boonville which the administrators had sold to J. M. Nelson in order to distribute the personal property under the order of the probate court. Thus, the referee surcharged the administrators' account with $15,370, and he readjusted the commission account of the administrators by allowing them $5,523.39, and found a balance in the hands of the administrators of $9,846.61, which he divided as follows: One-eighth to Mittie Leonard, one-eighth to Custis G. Stephens, one-eighth to Joseph L. Stephens, and five-eights to W. Speed Stephens and Lon V. Stephens, they having two-eighths in their own right, and three-eighths as assignees of Alexander H. Stephens, Rhoda and Maggie B. Stephens, under a disclaimer and release executed by them on July 17, 1894. The exceptors filed 31 exceptions to the report of the referee. The circuit court of Howard county (Hon. John A. Hockaday, Judge, presiding) heard the exceptions, and overruled them, and entered judgment approving the final settlement, and making final distribution as recommended by the referee. The exceptors filed a motion for new trial, specifying 17 errors of the circuit court. The motion for new trial being overruled, the exceptors appealed to this court.

John Cosgrove and Upton M. Young, for appellants. W. M. Williams, for respondents.

MARSHALL, J. (after stating the facts).

It thus appears that the exceptions originally filed in the probate court only set up three causes of complaint, — one, that Mrs. Ladd was not allowed one-ninth of the estate absolutely; one, charging that W. Speed Stephens and Lon V. Stephens and Mittie Leonard had received large advances from their father during his lifetime; and one, that W. Speed Stephens, Lon V....