Roloson v. Riggs

Decision Date17 May 1918
Docket NumberNo. 18929.,18929.
Citation274 Mo. 522,203 S.W. 973
PartiesROLOSON v. RIGGS et al.
CourtMissouri Supreme Court

Bond, J., dissenting. Woodson, J., dissenting in part.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Lucy M. Roloson excepted to settlement of Paul Riggs and Eugene De Hart, executors, etc., of Eber B. Roloson, deceased, and appealed to the circuit court. From a judgment, both parties appeal. Affirmed on plaintiff's cross-appeal, and on defendants' cross-appeal reversed and remanded, with directions.

This case came to the Kansas City Court of Appeals by cross-appeals, from the judgment of the Daviess county 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 De Kalb county, Mo. 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 bath 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 De Kalb county aforesaid on or about the 28th day of February, 1903, testate. He appointed in his will Paul Riggs, Eugene De Hart, 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 tool 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 De Kalb 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 $5,100. The 200 acres of land was incumbered by a deed of trust for $4,000, and the Weatherby town property was also incumbered for about $1,000. 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 United States Court of Appeals, and in the Supreme Court of the United States. After years of litigation and great expense the defendants finally collected about $45,200.66 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 $9,000, and the town property at $1,200. 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 appealed by both parties to the Kansas City Court of Appeals, and certified here, as above mentioned.

Broaddus & Crow, and Ernest D. Martin, all of Kansas City, for Lucy M. Roloson. William M. Fitch, of St. Louis, for Paul Riggs and Eugene De Hart.

RAILEY, C. (after stating the facts as above).

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 De Kalb county, Mo., 21 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 21 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 allowence of these three the defendants excepted.

Plaintiff filed in the circuit court aforesaid 7 exceptions to the report and findings of the referee, which will be considered hereafter. The defendants likewise filed 7 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 court will only be reviewed by us to the extent of determining whether or not they are supported by substantial evidence. City of St. Louis v. Parker-Washington Co., 271 Mo. 229, 196 S. W. loc. cit. 769; Coulson v. La Plant (Mo.) 196 S. W. loc. cit. 1146; Truitt v. Bender (Mo.) 193 S. W. 839; Buford v. Moore (Mo.) 177 S. W. loc. cit. 872; Abeles v. Pillman, 261 Mo. loc. cit. 376, 168 S. W. 1180; Slicer v. Owens, 241 Mo. 319, 145 S. W. 428; Minor v. Burton, 228 Mo. 558, 128 S. W. 964.

I. Plaintiff's Assignment of Errors.— The first error assigned by plaintiff reads as follows:

"The trial court erred in refusing to charge the executors with the store account of $56.40 allowed in their favor long after the account had been barred by limitation."

No exception was filed to the action of the referee in overruling the above assignment. Nor is there anything in plaintiff's motion for a new trial relating to this subject.

In view of the foregoing, said assignment is overruled.

II. Plaintiff's second assignment of error is as follows:

"The court erred in refusing to charge the executors with the $4,000 paid by the executors to James Ewart and the interest thereon paid as shown by the statement."

In order to properly understand and dispose of this assignment of error, it will be necessary to...

To continue reading

Request your trial
45 cases
  • McIntyre v. St. Louis & San Francisco Railway Co.
    • United States
    • Missouri Supreme Court
    • 10 Enero 1921
    ... ... 107, ... 14 S.W. 57; Sullinger v. West, 211 S.W. 65; St ... Charles Sav. Bank v. Thompson & Gray Quarry Co., 210 ... S.W. 868; Roloson v. Riggs, 274 Mo. 522, 203 S.W ... 973; Brawford v. Wolfe, 103 Mo. 391, 15 S.W. 426; ... Macey v. Stark, 116 Mo. 481, 21 S.W. 1088.] ... ...
  • In re State ex rel. Standard Fire Insurance Company of Hartford, Connecticut v. Gantt
    • United States
    • Missouri Supreme Court
    • 17 Mayo 1918
  • State ex rel. Bovard v. Weill
    • United States
    • Missouri Supreme Court
    • 5 Septiembre 1944
    ... ... does not take action for improper allowances, it ripens into ... a final judgment. Wilson v. Wilson, 164 S.W. 561; ... Roloson v. Riggs, 274 Mo. 522, 203 S.W. 937; ... Linville v. Ripley, 347 Mo. 95, 146 S.W.2d 581. (4) ... The probate court does not have jurisdiction to ... ...
  • In re Mills' Estate
    • United States
    • Missouri Supreme Court
    • 5 Mayo 1942
    ... ... Commerce Trust Co., 333 Mo. 977, 64 S.W.2d 608; ... Gupton v. Carr, 147 Mo.App. 105; Browning v ... Richardson, 186 Mo. 361; Roloson v. Riggs, 274 ... Mo. 522, 203 S.W. 973; In re Harr & Harr's Estate, 224 ... Mo.App. 6, 22 S.W.2d 209 ...          Bohling, ... C ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT