Scott v. Crews

• Decision Date: 31 October 1880
• Citation: 72 Mo. 261
• Parties: SCOTT v. CREWS et al., Appellants.
• Court: Missouri Supreme Court

72 Mo. 261

SCOTT

v.CREWS et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Saline Circuit Court.--HON. Wm. T. WOOD, Judge.

REVERSED.

Chas. A. Winslow and Shackelford and C. M. Napton for appellants.

L. W. Scott pro se, with whom were Geo. G. Vest and Jas. Cooney.

NORTON, J.

This proceeding was inaugurated in the probate court of Saline county by plaintiff, as administrator de bonis non, of the estate of Thomas E. Cheatham, deceased, under section 67, page 81, Wagner's Statutes, for the purpose of ascertaining the amount of money and all the rights, credits, deeds, evidences of debt and papers of every kind in the hands of defendant, Crews, former administrator of said estate, whose letters had been revoked, and having an order made for the rendition of same to plaintiff, and the enforcement thereof against Crews and his securities. Said cause was taken by appeal to the circuit court of Saline county, where it was, by consent, referred to a referee, who reported, as the result of his investigations, that there was due from said Crews to said estate the sum of $8,923.89. This report was confirmed, and a judgment entered accordingly, from which defendants have appealed to this court.

It is urged as a ground for the reversal of the judgment that the order of the probate court revoking the letters testamentary of Crews was a nullity, because it was made without proper notice. It is also objected that the probate court, notwithstanding the revocation of Crews' letters, had no power to appoint an administrator de bonisnon, it appearing that all the debts against the estate had been fully paid. It is also objected that the referee failed to credit Crews with various sums which the evidence and report showed him to be entitled to, and charged him improperly with interest. It is further objected that the referee failed to allow defendant credit for the amount of the distributive interest of Cheatham, one of the distributees of said estate, which it is claimed defendant paid or purchased from said Cheatham. The objections will be considered in the order stated.

1. ADMINISTRATION: order of probate court, not collaterally questionable, when.

I. Section 50, Wagner's Statutes, page 77, provides that “if any executor or administrator fails to make either annual or final settlement, as required by law, after citation, the court shall order the executor or administrator to give notice, when required, and to make such settlement, and may enforce such order by attachment, or may revoke his letters.” In case of a delinquent executor or administrator, the above section authorizes the court to order such executor or administrator to make settlement or to revoke his letters, and as the order of the probate court revoking defendant's letters recites all the facts necessary under said section to give the court jurisdiction both over Crews and the subject matter, the propriety and regularity of its action is to be presumed. The order of removal recites that “he failed and still fails and refuses to make final settlement, or to show cause, after having been properly cited to do so, to show cause why it cannot be made.” All the facts necessary to confer jurisdiction thus appearing affirmatively on the face of the proceeding, the judgment of removal stands upon the same footing of unquestionable verity as do judgments of courts of general jurisdiction, and the finding and judgment of the court, until set aside, must be deemed conclusive. Johnson v. Beazley, 65 Mo. 250; State ex rel. v. Weatherby, 45 Mo. 20; Jeffries v. Wright, 51 Mo. 221.

2. ______: revocation of letters.

But supposing that the order of revocation is open to collateral attack, we think it sufficiently clear that Crews was properly cited. It appears that letters testamentary were granted him in 1857, that the only settlements made by him were in 1859, 1861, 1867 and 1870, and that on December 8th, 1873, citation issued, requiring him to appear and make settlement at the January term 1874 of said court; that he appeared at said term by attorney, and his settlement was continued to the February adjourned term; that at the April term, 1874, he appeared and filed proof of publication of notice of his intention to make final setttlement at said term, and the settlement was continued to the October term, 1874, and at said term again continued, and at the January term, 1875, Crews failing to appear and make settlement, the order of revocation was made. The citation had the effect of bringing him into court at the January term, 1874, and of keeping him there till a final disposition of the subject to which the citation related. There is no question but that at said term the court had full power to revoke his letters, and the indulgence extended to him by the court, in continuing his settlement from time to time, covering the space of one year, could in no view of it have the effect of ousting the court of jurisdiction thus acquired either over Crews or the subject matter involved. Ample power was given to the county court to make the order of revocation by section 8, page 108, Wagner's Statutes, as well as by section 50, supra.

3. ADMINISTRATION DE BONIS NON.

II. It is argued by counsel that as all the debts against the estate had been paid, a right of action accrued to the distributees, and that, therefore, the county court had no power to appoint an administrator de bonis non, and that if appointed he could not maintain this proceeding. Section 67, page 81, Wagner's Statutes, provides that if any executor or administrator resign, or his letters be revoked, the court shall have power upon the application of his successor * * to ascertain the amount of money, etc., in his hands at the time of his resignation * * or revocation of his letters, and to order the rendition of the same to the successor of such administrator, and to enforce such order and judgment against such executor and his securities in the following manner: first, for the amount of money specified in the judgment, by execution in the ordinary form; second, for all other estate, effects and papers, by attachment against the person or property of such executor or administrator. Section 47, page 77, Wagner's Statutes, provides that “if any executor or administrator die, resign, or his letters be revoked, he or his legal representatives shall account for and pay and deliver to his successor * * all money * * at such times and in such manner as the court shall direct.” The succeeding section, 48, provides that “the succeeding administrator * * may proceed at law against the delinquent and his securities, or either of them, or against any other person possessed of assets; and the following section, 50, confers full power on the county court, after notice, to revoke the letters of a delinquent administrator.

It is clear from these various statutory provisions that, upon the revocation of the letters of an administrator, the county court is clothed with power to have a settlement made in that court by the removed administrator. It is also clear that such settlement is to be made at the instance of the successor of such removed administrator, and it is also clear that the county court is invested with authority to appoint such successor, and that the exercise of this power is not restricted to a class of cases, as contended for by counsel, where the administrator whose letters have been revoked has not paid all the debts against the estate. While an administrator holds the assets of an estate primarily for the payment of debts, the...