Nebel v. Bockhorst

• Decision Date: 05 January 1915
• Docket Number: No. 13887.,13887.
• Citation: 172 S.W. 452
• Parties: NEBEL v. BOCKHORST et al.
• Court: Missouri Court of Appeals

172 S.W. 452

NEBEL v. BOCKHORST et al.

No. 13887.

St. Louis Court of Appeals. Missouri.

January 5, 1915.

1. APPEAL AND ERROR (§ 185) — COURTS (§ 37) — JURISDICTION — OBJECTIONS — TIME.

An objection to the trial court's jurisdiction over the subject-matter may be raised at any stage of the proceeding, or may be considered by the Court of Appeals on appeal sua sponte.

2. COURTS (§ 472) — JURISDICTION — DECEDENT'S REAL PROPERTY — SALE TO PAY DEBTS.

Application to sell a decedent's real property to pay legacies alleged to have been charged thereon is within the exclusive jurisdiction of the probate court conferred by Rev. St. 1909, §§ 150, 154, subject to the right of appeal to the circuit court, and hence that court has no jurisdiction of a bill in equity for such relief.

Appeal from Circuit Court, Warren County; James D. Barnett, Judge.

Action by John V. Nebel, public administrator of the estate of Eliza Sattmann, deceased, against Edward Bockhorst, public administrator in charge of the estate of Henry Sattmann, deceased, and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Robert Walker, of Hermann, for appellant. John K. Waring, of Geneva, Neb., and E. Rosenberger & Son, of Montgomery City, for respondents.

ALLEN, J.

This action was instituted in the circuit court of Warren county by plaintiff, public administrator of said county in charge of the estate of Eliza Sattmann, deceased. The defendants are the public administrator of Montgomery county, in charge of the estate of Henry Sattmann, deceased, and the devisees under the will of said Henry Sattmann.

The petition avers that one Sophia Sattmann died in Warren county, Mo., in 1878, leaving a last will and testament written in the German language, which was duly admitted to probate in said county in the year 1879. The will, translated into English, is set out in full in the petition. By the first four clauses thereof the testatrix bequeathed to four of her children the sum of $5 each. The fifth clause is as follows:

"Fifth. I give and bequeath to my daughter, Eliza Sattmann, one thousand ($1,000.00) dollars; said sum shall remain in the hands of C. Henry Sattmann, without interest, so long as the said Eliza Sattmann stays with him under his care, custody, guardian; in case, however, that Henry Sattmann should not treat his sister Eliza well, and it shall be proved by three neighbors that she cannot stay with him any more, he shall of the aforementioned one thousand dollars pay six (6) per cent. interest to the one where she is at, and a complete bed worth forty dollars in cash money."

By the sixth clause of the will the testatrix devised to her son, C. Henry Sattmann, all of her real estate, consisting of 240 acres of land in Warren county; and her said son, C. Henry Sattmann, is made residuary legatee, and named as executor.

The petition then avers that C. Henry Sattmann resided on the real estate so devised to him until the year 1905, when he removed to the state of Nebraska, where he died testate December 18, 1910, still owning said lands; that his last will and testament was duly admitted to probate in Philmore county, Neb., on January 14, 1911, by which he devised the said land in Warren county to three nephews, defendants herein; and that on October 21, 1911, the defendant Bockhorst, public administrator of said Warren county, was directed by the probate court of said county to take charge of the estate of said Henry Sattmann, situated in this state. The petition then avers that the said Eliza Sattmann, daughter of Sophia Sattmann, and mentioned as a beneficiary under the fifth clause of the latter's will, died intestate in Montgomery county, Mo., on August 31, 1901; "that upon her death no administrator or other legal representative was appointed by any court to take charge of any estate which she might have had," until October 10, 1912, when plaintiff Nebel, public administrator of Montgomery county, was ordered by the probate court of such county to take charge of her estate. The petition further avers that the said Sophia Sattmann, at the time of the making of her will, and at the time of her death, was possessed of no personal property beyond what was required to pay the cost of administration upon her estate; that "the said legacy of $1,000 to her daughter Eliza Sattmann, on account of deficient mental condition of the said Eliza, was by the said testatrix during the lifetime of the said Eliza directed to remain in the charge of the said Henry Sattmann in the manner as stated aforesaid, and has never been paid by the said Henry Sattmann to any person lawfully entitled to receive the same." And it is averred that the said Sophia Sattmann intended to charge and did charge the said real estate owned by her at the time of her death with the payment of such legacy. The petition concludes with the...