McNally v. Hawkins
| Decision Date | 13 May 1912 |
| Citation | 147 S.W. 503 |
| Parties | McNALLY v. HAWKINS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.
Action by Julia McNally against Reuben Hawkins, executor. From judgment for plaintiff setting aside defendant's final settlement as executor, defendant appeals. Affirmed.
Frank Sheetz, of Chillicothe, for appellant. Paul D. Kitt, of Chillicothe, for respondent.
Plaintiff is the widow and defendant is the executor of the estate of J. S. McNally, deceased. The executor made final settlement of the estate in the probate court. During the same term, on motion of the widow, that court set aside the judgment of approval of the settlement, for the purpose of allowing her to file exceptions thereto. Defendant appealed from that order to the circuit court. In the latter court it was found that the probate court "did not arbitrarily exercise its discretion or abuse the same in setting aside and vacating the final settlement," and a judgment was there entered setting aside the settlement as the probate court had done. From this judgment of the circuit court defendant appealed to this court.
It appears that the widow desired the settlement set aside so that she might assert and try her right to an allowance of $400, as authorized by sections 117, 118, R. S. 1909. Defendant objects to setting aside the approval of the final settlement, on the ground, as alleged, that plaintiff is not entitled to that allowance for various reasons. And a trial of that right, involving the entire merits of the case, has crept into the briefs and arguments of the counsel for either party in this court. Plaintiff, however, has separately insisted that the merits of that controversy are not involved in this appeal. And she likewise separately contends that the judgment of the probate court approving the settlement was a judgment by default, and that there is no appeal from an order setting aside such a judgment, citing Breed v. Hobart, 187 Mo. 140, 86 S. W. 108, and the dissenting opinion in Carr v. Dawes, 46 Mo. App., loc. cit. 600.
In our opinion it is not proper, in ordinary procedure, that we should determine the merits of the...
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In re Estate of Mills, 37610.
... ... 322; Smith v. St. Louis Union Trust Co., 340 Mo. 979, 104 S.W. (2d) 341; Keet & Rountree Dry Goods Co. v. Williams, 202 S.W. 620; McNally v. Hawkins, 163 Mo. App. 692, 147 S.W. 503; Peper v. Bell, 286 Mo. 126, 218 S.W. 438; State ex rel. Burns v. Woolfolk, 303 Mo. 584, 262 S.W. 346; ... ...
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State v. McPike
...settlement, relators' motion to modify such final settlement could not be entertained, and relies upon the case of McNally v. Hawkins, 163 Mo. App. 692, 147 S. W. 503. In that case the interested party filed a motion in that court to set aside the order of approval of the settlement so that......
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Alexander's Estate, In re
...and cases cited, 811, and they were cognizable if filed at the same term at which the final settlement was approved. McNally v. Hawkins, 163 Mo.App. 692, 147 S.W. 503; 4 Maus, Missouri Practice, Sec. 1385. The instant exceptions were filed at the same term and therefore were timely Appellan......