Ratliff v. Magee

• Decision Date: 03 December 1901
• Citation: 165 Mo. 461,65 S.W. 713
• Parties: RATLIFF v. MAGEE et al.
• Court: Missouri Supreme Court

65 S.W. 713

165 Mo. 461

RATLIFF v. MAGEE et al.

Supreme Court of Missouri.

December 3, 1901.

PROBATE PRACTICE — FINAL SETTLEMENT — NOTICE — SUFFICIENCY — NEWLY-DISCOVERED ASSETS — ADMINISTRATOR DE BONIS NON.

1. Under Rev. St. 1899, § 232, fixing the term of court at which an administrator shall render his final settlement, and directing the publication of a notice in a newspaper of an intention to make the final settlement at the designated term of court "for four weeks prior" to such term, a notice published March 24th and 31st and April 7th and 14th for the term of court beginning May 8th is sufficient, as the statute merely requires that the first of the four weekly publications shall be four weeks before the term of court; and hence a creditor of the estate cannot maintain a suit to vacate the judgment of final settlement and discharge of the administrator entered at such term of court, though he has discovered assets

of the estate which were not administered, for such judgment is res judicata.

2. Where, after an administrator has been duly discharged, assets belonging to the estate, and which have not been administered, are discovered by an unpaid creditor, the former administration cannot be revived, but the court, on proper application, will appoint an administrator de bonis non.

Burgess, C. J., and Sherwood and Robinson, JJ., dissenting in part.

In banc. Appeal from circuit court, Macon county; Andrew Ellison, Judge.

Suit by A. E. Ratliff against W. J. Magee, administrator of the estate of John Brooks, deceased, and others. From a decree for defendants, plaintiff appeals. Affirmed.

Dysart & Mitchell, for appellant. Ben. Eli Guthrie, for respondents.

VALLIANT, J.

This controversy arises out of an effort on the part of appellant, who is a creditor of the estate of John Brooks, deceased, to open the administration, of which there has been apparently a final settlement, and bring in for further administration assets alleged to have been omitted. Appellant obtained a judgment against the intestate in his lifetime, which was duly exhibited to the probate court, and placed in the fourth class of allowed claims. There were also creditors in the fifth class. Upon the alleged final settlement there was a balance found due by the administrator of $293, which was ordered by the court to be paid to appellant, he being the only holder of a fourth class claim, and it was adjudged that upon such payment the administrator be discharged. That was May 13, 1893. The probate court records also declare that the payment was made and the administrator discharged. This payment left a balance due on appellant's claim, which at the beginning of the present controversy, February 10, 1896, amounted to $623.13. Nearly three years after this alleged final settlement appellant claims to have discovered that there was a tract of 120 acres of land in Macon county which belonged to the intestate at his death, and which should have been included in the assets of the estate, and subjected, in the course of administration, to the payment of debts. Thereupon appellant filed his petition in the probate court, reciting the facts as above outlined, and stating that the administrator had failed to give the notice required by the statute of his intention to make a final settlement, and praying that the order purporting to be a judgment of final settlement be set aside, and the administrator be directed to proceed with the administration as if no order as of final settlement had been made, and to draw into the administration the overlooked and unadministered assets. The probate court made the order as prayed, and proceeded to order a sale of the lands as unadministered assets needed for the payment of debts, when an appeal was taken by the heirs of the intestate to the circuit court. Upon the trial in the circuit the facts above mentioned were shown, and it also was shown that the notice given by the administrator of his intention to make final settlement was in due form, and was published in a weekly newspaper in the county March 24, March 31, April 7, and April 14, 1893. The first day of the next term of the probate court was May 8, and the judgment of final settlement was rendered May 13, 1893. The finding and judgment of the circuit court were in favor of the heirs, and denied the petition for sale of the land. The petitioning judgment creditor appeals.

The appellant's whole case is bottomed on the proposition that the notice given was not that required by the statute. There are other points discussed in the briefs, but, if the notice is found to be sufficient, it disposes of the case. Notice of publication in a newspaper is required by our laws in various instances, but the language used in the statute for cases of one kind is different from that used for those of another kind, and the words used must be interpreted according to their place in the context. This is illustrated by decisions construing our various statutes. In Haywood v. Russell, 44 Mo. 252, the court was dealing with the statute requiring publication of notice to a nonresident in an attachment suit, the language of which was, "The publication shall be for four weeks successively, published at least once a week, the last insertion to be at least four weeks [now fifteen days] before the commencement of the term at which the defendant is required to appear." Section 581, Rev. St. 1899. The words "for four weeks," in that sentence, are qualified by the words that follow. The literal call of that statute is for a publication of the notice once a week for four successive weeks, which is not the same as a notice for four weeks. "Once...