RoBards v. Lamb
| Decision Date | 07 June 1886 |
| Citation | 1 S.W. 222,89 Mo. 303 |
| Parties | RoBards, Appellant, v. Lamb |
| Court | Missouri Supreme Court |
Appeal from Hannibal Court of Common Pleas. -- Hon. Theodore Brace Judge.
Affirmed.
Thomas H. Bacon for appellant.
(1) The grant of administration pendente lite is in the nature of a decree in rem. Freeman on Judgments, [1 Ed.] p. 507, sec 608. And, therefore, the judgment of final settlement of such administration is in the nature of a decree in rem. Fenix v. Fenix, 80 Mo. 27; North v. Priest, 81 Mo 561; Grignon v. Astor, 2 How. [U.S.] 319. And, therefore, notice to the world is essential to jurisdiction over the subject matter. Caldwell v. Lockridge, 9 Mo. 362; Brashears v. Hicklin, 54 Mo. 102; Brown v. Weatherby, 71 Mo. 152. And a judgment of such final settlement without such notice is invalid. (2) A settlement with successors is by the statutes expressly designated as a "final settlement," (G. S. Mo., p. 484, chap. 120, sec. 47), and all final settlements require a published notice thereof (G. S. Mo., p. 491, sec. 20), and as the judgment of final settlement was rendered without notice the judgment is invalid, and the settlement is operative only as an annual settlement. (3) The Missouri statutes require the filing of notice of any final settlement (Ib. p. 491, sec. 20), as well as publication, and as the final settlement of administration pendente lite is a special proceeding, a conformity to the statutes is necessary to confer jurisdiction over the subject matter, and no other method can be pursued. Baker v. Hannibal, 36 Mo. 544; Powers v. Blakey, 16 Mo. 437. And the record of the probate court must show its jurisdiction. (4) The executor's receipt of the assets tendered could not cure the want of jurisdiction over the subject matter, or dispense with compliance with a statutory special proceeding. Stiles v. Smith, 55 Mo. 363. Or a statute in aid of public policy. State, etc., v. McGrath, 86 Mo. 239. (5) The executors had no capacity to waive the publication of notice. The administrator pendente lite had no capacity to make a final settlement without such notice, and the executors had no capacity to accept such settlement without such notice. Stiles v. Smith, 55 Mo. 363. (6) No final settlement of the administration pendente lite could be made except by and through a valid judgment of the probate court. Hawkins v. Cunningham, 67 Mo. 415. Neither the executors nor the administrator pendente lite had any capacity to make such final settlement in pais. They could not exercise powers not given to them by statute. Cape Girardeau v. Harbison, 58 Mo. 90. (7) Except as to the sum of $ 343.86, the judgment of final settlement, though expressed in figures as for $ 56,136.39, was simply a judgment upon the written confession of the administrator for restoration of assets, in kind, the same choses which the administrator had merely received and kept for the estate. On the alleged value of these choses, $ 55,792.21, the probate court allowed a commission of five per centum, and the excess of fees thus allowed amounts to $ 2,923.86, property of the trust estate which, by the final settlement, the administrator pendente lite illegally retained, and this constitutes the main item of damages complained of. Hawkins v. Cunningham, 67 Mo. 467. As to nature of such judgment see Clyce v. Anderson, 49 Mo. 37, 41, 42. (8) The minority and the coverture, as pleaded, concur in saving the patrimonial rights. Houts v. Shepherd, 79 Mo. 141. The beneficiaries have a right to maintain this action. Morehouse v. Ware, 78 Mo. 100. (9) The motion for the impleading of the plaintiff's husband was filed in order to show that the court below decided on the merits. There could be no dismissal for defect of parties. Butler v. Lawson, 72 Mo. 227.
Silver & Brown also for appellant.
(1) The proceeding by plaintiff in this case, even conceding the settlement of Lamb, although made withnotice, to have had the full effect of a final one, is sustained by the decisions of this court. Byerly v. Donlin, 72 Mo. 270; Houts v. Shepherd, 79 Mo. 141. In the Byerly case a credit had been allowed Brown, the administrator, on final settlement which should not have been given, and the heirs brought their suit in equity to correct it. In course of the opinion of the court Judge Napton said: "It is true there is no direct evidence of fraud on the part of Brown, who was proved to be a man of good character, but there was nothing to show the propriety of such a charge, and that it was a mistake appeared beyond question." 72 Mo. 271. So in Houts v. Shepherd, 79 Mo. 141, it was decided and held that the taking of credit by an administrator for what in no view of the case he is entitled to is sufficient misconduct on his part to vitiate his settlement as fraudulent to the extent of such improper credit. These rules were held as to final settlements made on due notice. It stands confessed by the demurrer to the petition that the administrator pendente lite was allowed and credited with five per cent. on the entire nominal amount of assets received by him. That such an allowance and credit was wholly wrong and improper is expressly decided in Hawkins v. Cunningham, 67 Mo. 415. (2) Notice of the settlement of an administrator pendente lite is necessary to bind heirs and other parties in interest. G. S., 1865, pp. 490-1; State, etc., v. Roper, 82 Mo. 61; Fenix v. Fenix, 80 Mo. 30; 22 Am. Dec. 179. (3) The doctrine announced in RoBards v. Lamb, 76 Mo. 192, was certainly never intended to affect persons who were not parties to the settlement and who had not had their day in court. (4) A discharge of a receiver is no bar to an action against him for previous liability. High on Receivers, sec. 848.
Anderson & Foreman and Thos. F. Gatts for respondent.
(1) The appeal taken from the judgment of final settlement of the respondent by John L. RoBards, executor of the Helm estate, and finally determined by the Supreme Court in RoBards, Ex'r., v. Lamb, Adm'r, 76 Mo. 192, involved every question of error, if any, in the matter of said final settlement and the final judgment of said probate court therein; and by the final judgment of said Supreme Court in said case, every question of error, if any, in the matter of said final settlement, and the final judgment of said probate court therein, including the alleged cause of complaint of plaintiff, was finally adjudicated. RoBards, Ex'r, v. Lamb, Adm'r, 76 Mo. 192; Aurora City v. West, 7 Wall. 102; Beloit v. Morgan, 7 Wall. 622. (2) The respondent was not required by law to give any published or public notice of his intention to make final settlement of the assets belonging to the estate, and the judgment of the probate court cannot be affected by want of any such notice. Sec. 13, chap. 120, G. S. Mo.; Lamb, Adm'r, v. Helm, 56 Mo. 433; Hawkins v. Cunningham, 67 Mo. 415. (3) An administrator pendente lite is charged with no duty to, and has no legal relationship with legatees under a contested will. McIlwrath v. Hollander, 73 Mo. 105. (4) The only statutory provisions requiring notice preliminary to final settlements of administrators, were section 43, p. 484, General Statutes, Missouri, providing for notice by an administrator or executor desiring and intending to resign, and section 16, p. 507, General Statutes, Missouri, providing for notice by an administrator wishing to make a final settlement and distribution of an estate. These provisions of the law can have no reference to an administrator pendente lite, because he neither resigns nor makes a final settlement of the estate, having no power to do so. They apply only to general administrators, and for the purposes specifically set forth. Section 20, p. 491, relates only to the method of proving and filing notices required elsewhere by the law to be given. (5) Section 47, p. 484, Revised Statutes, Missouri, requires no notice of the final settlement therein provided to be made by the executor or administrator, or his personal representative, who has resigned or died, or whose letters have been revoked. Besides, this section has no reference to an administrator pendente lite. (6) If notice of final accounting of an administrator pendente lite were required, yet as accounting was by the law to be done directly to the qualified executor, such notice could be waived by the executor, and the fact that the executors of the Helm estate voluntarily appeared in court, settled with respondent, gave him receipt in full, and afterwards appealed, was such waiver. When the object of a notice is accomplished by the appearance of parties, it is immaterial whether there was notice or not. McLeran v. Shartzer, 5 Cal. 70; 63 Am. Dec. 84; Brown v. Weatherby, 71 Mo. 156. (7) The appellant and all the legatees under the will were parties to the suit contesting the will, and are claimants under the judgment probating the same, which judgment terminated the power of the respondent to act, and by law imposed upon him the direct duty of accounting to the executors alone of the will so probated. Of these legal effects and facts the law charges the appellant with knowledge. (8) The judgment of the probate court on appellant's theory, was simply irregular, for want of constructive notice, and this could be corrected only by appeal, or on motion in same court, as provided by section 26, p. 686, General Statutes, Missouri. Sims v. Gray, 66 Mo. 613. (9) For all irregularities of the probate court, for all mistakes of the law it makes, and for all erroneous judgments or illegal allowances not founded in fraud, there is ample and full remedy at law by appeal or motion. Equity only intervenes in case of fraud. Jones v. Brinker, 20 Mo. 87; Miller v. Major, 67 Mo. 247; Lewis v. Williams, Adm'r, 54 Mo. 200.
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