Picot v. O'Fallon (In re Estate of Biddle)

• Citation: 35 Mo. 29
• Parties: In the matter of the Estate of Ann Biddle, deceased. LOUIS G. PICOT, LEGATEE IN TRUST FOR ANN B. HARNEY (DE THURY), Plaintiff in Error, v. JOHN O'FALLON, EXECUTOR OF ANN BIDDLE, DECEASED, Defendant in Error.
• Decision Date: 31 March 1864
• Court: Missouri Supreme Court

35 Mo. 29

In the matter of the Estate of Ann Biddle, deceased.

LOUIS G. PICOT, LEGATEE IN TRUST FOR ANN B. HARNEY (DE THURY), Plaintiff in Error,

v.JOHN O'FALLON, EXECUTOR OF ANN BIDDLE, DECEASED, Defendant in Error.

Supreme Court of Missouri.

March Term, 1864.

Error to St. Louis Circuit Court.

L. G. Picot and C. Gibson, for plaintiff in error.

R. M. Field.

The important question presented in this case is as to the effect of the annual settlements made by the executor in the progress of the administration, and which, according to the formal course of accounting in the probate court, became the basis of the final settlement.

On the one hand, it is contended that these annual settlements were conclusive in their character, precluding all inquiry into their justness or propriety and possessing the binding force of judgments.

On the other hand, it is insisted that these ex parte settlements are open to examination, and all errors and wrongs that may be made to appear are to be corrected and redressed in the final accounting.

It is a principle of jurisprudence founded in natural justice, that no person is bound by proceedings to which he was not a party, or of which he had no notice. As a general rule such proceedings are wholly inadmissible in evidence. They are rejected as being res inter alios acta. The applications of this principle are so numerous and familiar that they need not be particularly cited. One of the most striking occurs in the case of judgments. If these are rendered without previous notice to the adverse party, they are void.

Under our administration law an executor is not required to give any previous notice of his annual settlements. In fact in the present case it is not pretended that any notice was given to the parties in interest. The settlements consisted of mere statements of account by the executor, subjected to no scrutiny, and accepted and recorded by the judge of probate. Surely it would be a plain violation of justice, and a departure from all the analogies of the law, to hold the mere ex parte accounts, rendered behind the backs of the parties in interest, as conclusive upon their rights.

The real purposes of these annual accountings, in the contemplation of the Legislature, were these: 1. To keep the probate court advised at short intervals of the proceedings of its subordinate officer, the executor; 2. To communicate in like manner, to all interested, information of the situation of the estate and the progress of the administration; 3. To serve as secondary evidence to the executor in the event of the loss of vouchers or the death of witnesses. These purposes are all effected by simply receiving the accounts as prima facie evidence; and there can be no necessity of going the extravagant length of holding the accounts as conclusively true.

Our law has carefully required that prior to the final settlement notice shall be given to the parties in interest. The inference is irresistible from this circumstance that the Legislature contemplated an effect of this settlement different from that of the previous ones. The latter were partial accounts rendered for information, the former a complete account submitted to trial and adjudication. By reference to the authorities, it will be seen that the views above expressed as to the effect of the ex parte settlements are abundantly sustained.

In England it has always been held that a final account, regularly taken before the ordinary, discharged the executor forever, and no further suit could be brought in any court for an account. But to have this effect, it was indispensable that the parties in interest should be cited to be present at the account. Without such citation the account had no effect whatever as to legatees and distributees, and they were at liberty to call the executor again to account, in rendering which the previous ex parte account was not admissible in evidence against them. (4 Burns' Eccl. Law, 603; Toll. Ex. 494; 2 Wms. Ex'r; Young v. Shelton, 3 Hagg. Eccl. R. 782; Anderson v. Fox, 2 Hen. & Munf. 245.)

The rule thus established has been recognized in all succeeding cases in Virginia. (Mountjoy v. Lowry, 4 Hen. & Munf. 428; Cavendish v. Fleming, 3 Munf. 198; Shearman v. Christian, 9 Leigh, 577; Newton v. Poole, 12 Leigh, 112; 2 Lom. Ex. 807.)

In pursuing the inquiry into cases decided in the other States, it will be found that the stream of authority runs all one way. (Scott v. Fox, 14 Md. 397; Mitchell v. Mitchell, 3 Md. Ch. Dec. 74; Turney v. Williams, 7 Yerg. 172; Elrod v. Cancaster, 2 Head, 572; Cunningham v. Pool, 9 Ala. 619; Willis v. Willis, 9 Ala. 330; Smith v. Smith, 13 Ala. 335; Harper v. Archer, 9 Sm. & M. 75; Winborn v. King, 35 Miss. 158; Effinger v. Richards, 35 Miss. 540; Ingraham v. Rogers, 2 Texas, 467; Thomason v. Thomason, 1 Metcalf, Ky., 51; Allen v. Clark, 2 Blackf. 343; Ray v. Doughty, 4 Blackf. 115; Liddel v. McVicker, 6 Halst. 44; Livingstone v. Combs, Coxe, 42; Stearnes v. Stearnes, 1 Pick. 160; Stetson v. Bass, 9 Pick. 30; Allen v. Hubbard, 8 N. H. 487; Smith v. Dutton, 4 Shep. 311; Mass. Rev. Stat. 1836, p. 437; Wiggin v. Swett, 6 Metc. 198.)

It remains to consider the cases in our own reports that are thought by the other side to give countenance to the notion, that annual settlements are conclusive upon the rights of parties. An examination of these cases will dispel this delusion: Erwin v. Henry, 5 Mo. 470; Clark and wife v. Henry, 9 Mo. 340; Caldwell v. Lockridge, 9 Mo. 362; Collins v. Stevenson, 12 Mo. 178; Stong v. Wilkson, 14 Mo. 116; Oldham v. Trimble, 15 Mo. 225; Jones v. Brinker, 20 Mo. 87; State, to use of, &c., v. Roland, 23 Mo. 95; Mitchell v. Williams, 27 Mo. 399.

Krum & Decker, for defendant in error.

I. The Circuit Court was authorized, under the statute as well as by general practice, to refer the matter of the executor's final settlement to a referee, and the referee was specially ordered to hear proof and allegations touching and concerning all the matters embraced in said settlement, and none other.

The authority for making this order is given by the 18th Sec. of 10th Art. Practice in Civil cases. (R. C. of 1855, p. 1262.)

II. Under the order of reference the referee could not, without disregarding the order, hear the proofs offered by appellant, for these proofs related altogether to different accounts from the one referred to him.

III. The annual settlements of the executor, which preceded the final settlement, had the force and effect of judgments, and it was not competent for the referee to go behind them.

Executors and administrators are by the laws of Missouri required to give public notice by publication of the grant of their letters, and they are also required to make annual settlements of their accounts. The matter of any estate is, therefore, a continuing and pending case in court from the date of the letters until it is disposed of by final settlement. Every person interested in the estate may be heard in the probate court, and will be presumed to be in court. The statute requiring annual settlements to be made is a wise provision of law, and the decisions of the Supreme Court giving to such settlements the force and effect of judgments are equally wise.

Parties interested have ample opportunity to state their objections to any account, and it should be and is the policy of the law to require that this should be done during the term of courts at which the account is exhibited and settlement made.

If a party can stand by and not raise or state his objections to the annual settlements of an executor or administrator, as in this case, until after the lapse of ten years, and then come forward at the final settlement, and, without notice or specification, falsify and surcharge all the previous accounts and annual settlements, of what advantage is it to make such settlements? Shall a party in interest be allowed, notwithstanding he had full knowledge of the first annual accounting and settlement, to stand by, and, as it were, lay in ambush for a series of years, and wait until the witnesses by whom the administrator could have defended himself are dead, and then spring a mine at the final settlement, in the form of objections to the first settlement? This would be monstrous, and is certainly contrary to the spirit of our law and contrary to its administration.

The ground assumed by the appellant is, that it is only a final settlement that has the force and effect of a judgment.

The argument urged in support of this proposition when considered, it will be seen, is simply an ingenious fallacy. The basis of the argument rests in the assertion, that an executor is not required to give previous notice of his annual settlements.

On this assertion the whole argument of the appellant rests. Unfortunately for the appellant this fallacy is exposed, and his argument is overthrown by the statute law governing the case. The statute declares when and where the executor shall render his annual accounts. It is at the first term of the probate court after one year from the date of his letters, and at the corresponding term of such court every year thereafter. (Art. V., Sec. 2, R. C. p. 159.) A public law designating the time and court, we submit, is quite sufficient notice to all parties concerned.

It is assumed also by the appellant, that the annual settlements of the executor were ex parte in their character, and therefore only prima facie correct. But this assumption rests on another, viz.: that the annual settlements of the executor were made without previous notice. The respondent denies that the annual settlements were made without previous notice, for the law itself gives notice. It is not pretended that these settlements were made out of time, or not in accordance with the statute. The argument based on the assumption that the annual settlements were ex parte in the sense conveyed by the appellant, is groundless and without force.

We conclude what we have to say under this head by...