North v. Priest

• Decision Date: 30 April 1884
• Citation: 81 Mo. 561
• Parties: NORTH et al. v. PRIEST, Administrator, Appellant.
• Court: Missouri Supreme Court

81 Mo. 561

NORTH et al.

v.PRIEST, Administrator, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

J. M. & C. H. Krum for appellant.

(1) The circuit court, without proof, assumed authority to falsify the account of defendant, and struck from it certain credits the effect of which was to change or increase the balance in his hands. The settlement made by the administrator January 31st, 1879, was not a final settlement, and it required proof to justify the court in striking out the items in question, other than the account itself. (2) An administrator's account may be falsified, but only by bill or petition, and upon sufficient evidence. In this case it was done on verbal motion, without specification and proof. (3) A bill to falsify or surcharge the accounts of an administrator implies and necessarily charges that defendant has failed to fully account for moneys or assets received by him in the particulars specified in the bill, and the burthen rests upon plaintiff to show this. Story Eq. Plead., § 801; Clymer v. Anderson, 49 Mo. 37; Williams v. Pettigrew, 62 Mo. 460. (4) Though the settlement made by defendant at the December term, 1878, was not a final settlement, a creditor or other party could not come in afterward, and without proof and notice, readjust or restate the administrator's account without his consent, as was done in this case. (5) The finding of the referee was contrary to the evidence, and the circuit court erred in approving and confirming it by its judgment. (6) The finding of the referee was excessive, and the circuit court erred in affirming it. (7) The lower courts erred in assuming that the debt in question was the only debt in that class.

Hudgens & Davis for respondent.

MARTIN, C.

The only question presented by the appeal in this case is, whether on an application by a creditor of an estate for an order on the administrator to pay his demand, which has been duly exhibited and placed in the fifth class of claims, the answer of the administrator, that he has paid over the funds of the estate to the distributees, and, for that reason, has no funds on hand, constitutes a valid defense to the application. The St. Louis probate court, St. Louis circuit court and St. Louis court of appeals all held, in concurring opinions, that such payment was no discharge of the funds on hand, and would constitute no defense to the application. A similar conclusion was announced in the case of Bassett v. Slater, 81 Mo. 75.

It is claimed by the administrator in this case, that inasmuch as he entered the payments to the distributees in his first settlement, which was formally passed and approved by the probate court, the legality of such discharge of the funds cannot be questioned by any one interested in the estate, except on a direct proceeding to set aside the order approving the settlement. This position is assumed under a misconception of the nature and effect of an annual settlement. Such settlements are only interlocutory steps in the proceeding in rem, which terminates with the final settlement and order of discharge. The binding effect of the final settlement rests upon the notice and proclamation to all persons interested in the estate to come forward and make known their objections to the administration before it is closed. Fenix v. Fenix, 80 Mo. 27. The preceding...