Roloson v. Riggs
| Decision Date | 17 May 1918 |
| Citation | 203 S.W. 973,274 Mo. 522 |
| Parties | LUCY M. ROLOSON, Appellant, v. PAUL RIGGS and EUGENE DeHART, Executors of Last Will of EBER B. ROLOSON, Appellants |
| Court | Missouri Supreme Court |
Appeal from Daviess Circuit Court. -- Hon. Arch B. Davis, Judge.
Affirmed as to plaintiff's appeal; reversed and remanded (with directions) as to defendant's appeal.
Broaddus & Crow and Ernest D. Martin for plaintiff.
(1) The executors in this case filed what they claimed to be a final settlement, but the paper shows that there is $ 5000.47 due from estate of Eber B. Roloson and no final settlement can be made or considered by the court "until the administration is completed;" and for that reason the probate court and the circuit court erred in approving the paper as a final settlement after making certain deductions or charges against the executors. R. S. 1909, secs. 222-238; Ryans v. Booger, 169 Mo. 673. (2) The Ewart note referred to in the statement was filed and presented to the probate court on the 6th day of March, 1905; the affidavit of the creditor as well as the note was filed in the probate court on said 6th day of March, 1905, and the attorney for the executors waived service of summons or notice, and the claim was allowed on the same day it was presented and the executors were appointed on the 4th day of March, 1903, and advertisement inserted of the fact of the appointment within thirty days thereafter. So that limitation had barred the Ewart claim because an attempt was made to present same more than two years after the appointment of the executors. R. S 1909, secs. 190, 191, 194, 82. The executors were without power to pay any debt after it had been barred by the special Statute of Limitation. Beekman v. Richardson, 150 Mo. 430; Crosswell's Executor & Administrator, page 333; Woerner on Administration (2 Ed.), pp.839-841, secs. 400-402; Schouler's Executor & Administrator, p. 489, sec. 417; Styles v. Smith, 55 Mo. 366; Bauer v Grace, 18 Mo.App. 164; Wiggins v. Lovering, 9 Mo. 262. (3) The trial court clearly erred in taxing one-half the costs against Lucy M. Roloson after adjudging that the executors had attempted to wrongfully and unlawfully convert to their own use $ 1200 of her father's estate.
Wm. M Fitch for defendants.
Upon the findings of the referee, and the facts disclosed therein, the executors are entitled to commissions of five per cent on said sum of $ 1180.50, the sale price of the corn. This corn was inventoried, appraised and charged to the executors in their first annual settlement, it appearing that the corn was subject to a mortgage, which fact was brought to the attention of the court, and the court ordered the executors to sell the corn to pay said mortgage and report the sale to the court. This being an annual settlement, made in due form and after being docketed, and after due notice by publication, all parties in interest were duly notified and were in court for all purposes of the settlement. Appeals must be taken within the time provided by Sec. 290, R. S. 1909. No appeal was taken from this order or allowance. We respectfully submit that the executors are entitled to and should have the $ 200 involved in this item because it is a part of their regular five per cent commission expressly allowed by statute; it is not, and was not allowed or paid or claimed as extra compensation. A simple computation proves this. The executors did not ask for more than one allowance -- and do not now claim, and have never claimed for more than one such allowance, viz, the one for $ 1000. (See fourth and final settlement [Rec., p. 132]). The executors have never claimed more than $ 1000 as special allowance and expense. The claim is fully treated under point 3 hereof. (2) The allowance and claim of $ 200 was right, just and proper, and the judgment must be reversed as to this item because it was and is a part of the regular five per cent commission allowed executors, and nothing more. (3) Executors were allowed $ 1000 for extraordinary expenses and time in handling the affairs of this estate. Such an allowance is clearly within the purview of the statute, fixing compensation to administrators and executors. Sec. 229, R. S. 1909.
RAILEY, C. Brown, C., not sitting. Graves, C. J. and Faris, Blair and Williams, JJ., concur; Walker, J., concurs in result; Woodson, J., concurs in all except what is said of the Parker-Washington Co. case; Bond, J., dissents.
In Banc.
This case came to the Kansas City Court of Appeals by cross-appeals, from the judgment of the Daviess Circuit Court, in passing upon plaintiff's amended exceptions to the fourth and alleged final settlement of defendants herein, as executors of the estate of Eber B. Roloson, deceased, filed in the probate court of DeKalb County, Missouri. The case was appealed to the circuit court of said last named county, and on change of venue was transferred to the Daviess County Circuit Court. When reached for trial there, the court appointed Hon. A. D. Hewett as referee. He duly qualified as such referee, heard the testimony of both plaintiff and defendants, made a written report as to his findings upon the law and facts, accompanied by the testimony taken before him, found certain issues in favor of this plaintiff, and others in favor of defendants. Both plaintiff and defendants filed exceptions to the report of the referee, which will be considered hereafter. The exceptions of both parties to the report of the referee were overruled, and judgment was entered confirming said report. Both parties appealed to the Kansas City Court of Appeals, and the latter certified the case to this court on the ground that the amount in controversy made the appeal returnable here.
It appears from the testimony that Eber B. Roloson died while a resident of DeKalb County aforesaid, on or about the 28th day of February, 1903, testate. He appointed in his will Paul Riggs, Eugene DeHart and Howard J. Roloson as executors therein. Howard J. Roloson (brother of deceased) declined to act, but the other parties mentioned duly qualified as such executors, and took charge of said estate. The only clause of the will necessary to mention here, is the following:
"I want all of my debts paid without probating, a list which I will leave with my brother, Howard J. Roloson."
About the year 1899, or 1900, the wife of said Eber B. Roloson, died. This plaintiff -- then a minor -- was the only child and heir at law of said Eber B. Roloson and wife. It appears from the evidence that decedent, at the time of his death, was the owner of about 200 acres of valuable land in DeKalb County aforesaid, and also about two acres of real estate in the town of Weatherby, in said county. He owned about one dozen policies of insurance, in different companies, aggregating over $ 42,000. He likewise owned some personal property appraised at about $ 5100. The 200 acres of land were encumbered by a deed of trust for $ 4000, and the Weatherby town property was also encumbered for about $ 1000. He owed various other debts not necessary to mention. The policies of insurance were taken out shortly before his death. All of the companies, except one or two, contested the validity of same, and some of the cases were in the Federal District Court, the U.S. Court of Appeals and in the Supreme Court of the United States. After years of litigation, and great expense, the defendants finally collected about $ 45,206.66 on said insurance policies.
The total claims allowed by the probate court, including the mortgages, amounted approximately to $ 35,000. The 200 acres was appraised at $ 9000, and the town property at $ 1200. Without the insurance, the estate of decedent was hopelessly insolvent.
Such other matters as may be necessary will be considered hereafter.
Both plaintiff and defendants filed their respective motions for new trial, which were overruled. The defendants also filed their motion in arrest of judgment. This motion was likewise overruled. The case was appealed by both parties to the Kansas City Court of Appeals, and certified here, as above mentioned.
This is an action at law and the trial court properly appointed a referee to take the testimony and report to the court his findings of law and fact. Counsel for plaintiff, filed in the probate court of DeKalb County, Missouri, twenty-one exceptions to the fourth annual settlement filed in said court, on August 22, 1912, by defendants as the executors of the estate of Eber B. Roloson, deceased. The referee heard the testimony of both plaintiff and defendants, and at the October Term, 1914, of the Daviess Circuit Court, filed therein his findings of law and fact, with a transcript of the testimony taken before him. All of the twenty-one exceptions filed by plaintiff to the settlement aforesaid were overruled and denied by the referee, except those numbered 3, 13 and 19, and to the allowance of these three the defendants excepted.
Plaintiff filed in the circuit court aforesaid seven exceptions to the report and findings of the referee, which will be considered hereafter. The defendants likewise filed seven exceptions to the report and findings of said referee, which will also be considered later. The Daviess Circuit Court overruled all the exceptions filed by both plaintiff and defendants, and entered a decree confirming said report and findings of both law and fact. In view of the foregoing, the case stands before us, as if the findings of fact and conclusions of law had been made by the trial court.
The motions of both plaintiff and defendants for new trial were overruled, and defendants' motion in arrest of judgment was also overruled.
The case was tried by the court without instructions.
The substituted findings of fact by the trial...
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