Seymour v. Seymour

• Decision Date: 30 April 1878
• Parties: SEYMOUR v. SEYMOUR, Appellant.
• Court: Missouri Supreme Court

67 Mo. 303

SEYMOUR

v.SEYMOUR, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Boone Circuit Court.--HON. G. H. BURCKHARTT, Judge.

The instructions refused by the court were as follows:

3rd. The court, sitting as a jury, is instructed that if it finds from the evidence that the personal property of J. W. Graves, deceased, was inventoried and appraised, said appraisement was prima facie evidence of the value of said property, and if the court finds from the evidence that said Jno. T. Graves charged himself with an amount sufficient to cover the total appraised value of the personal property, including the $700 which was realized from the sale of the new mill over its appraised value, and also with the item of one thousand dollars for lumber sold by J. W. Graves, deceased, in St. Louis in his life time, and which was not inventoried and appraised, the verdict and finding must be for the defendant.

5th. The court, sitting as a jury, is instructed that if it finds from the evidence that all the personal property belonging to the estate of J. W. Graves, deceased, which was not sold at public sale, was afterwards sold under an order of the probate court, at private sale, and that said administrator reported said sale to said court, and the same was approved by said court, then said order of approval is prima facie evidence that said report was correct, and the court cannot go behind said order to inquire into the correctness of the same, and the verdict and finding must be for the defendant.

W. Gordon and Ewing & Pope for appellant.

O. Guitar for respondent.

NORTON, J.

This is a proceeding instituted in the county court of Boone county in which it is alleged that in 1865 John T. Graves was appointed administrator of the estate Joseph W. Graves, deceased, and continued as such without completing the administration till his death, which occurred in 1874; that on the 7th of August, of that year, defendant was appointed administrator of said John T. Graves, and plaintiffs were appointed administrators de bonis non of the estate of said Joseph W. Graves. It is further alleged that the said John T. Graves, as administrator of Joseph W. Graves, had collected a large amount of money as the proceeds of the sale of personal property, which he had failed to account for, and the court is asked to require defendant, as administrator of John T. Graves, to make an amended settlement and charge therein the sums of money so received and not accounted for, and to pay the balance, if any, over to the plaintiffs. Defendant, in his answer, denies that J. T. Graves, as administrator, failed to account for the sums of money alleged to have been received by him, and alleges that he did account therefor, and that the estate of J. W. Graves was indebted to the estate of J. T. Graves in the sum of $1,187.39, which he asks to be allowed as a demand against the estate of plaintiffs' intestate. Upon a trial in the county court judgment was rendered for defendant for the sum of $851.89, from which an appeal was taken to the circuit court, where on a trial de novo, judgment was rendered for plaintiff for $1, from which defendant has appealed to this court.

It is claimed, on the part of defendant, that the judgment rendered by the county court was based upon an annual settlement and could not therefore, be appealed from. This claim, we think, is not supported by the facts. In proceedings before county courts in matters pertaining to the administration of estates, where no formal pleadings are required, substance and not form is to be looked to, and although in the petition filed by plaintiff, the settlement which defendant was called upon to make, was styled an amended settlement, it was really a final one, as contemplated in § 47, 1 Wag. Stat., 77, and the judgment of the county court allowing the sum of $851.89, against the estate of plaintiffs' intestate, was such a final determination of the matter in controversy as authorized an appeal.

It is also urged that even though the circuit court had jurisdiction to try the cause on appeal, it had none to render judgment against defendant, and in support of this view we have been cited to Secs. 68 and 69, Wag. Stat., 81, 82. While these sections would not authorize the rendition of such judgment as was rendered in the case, it does not follow that the court had no jurisdiction to render it on other provisions of the law. When an administrator dies without accounting for money or assets which came into his hands in the course of his administration, an administrator de bonis non, who succeeds him, may either sue on the bond of such deceased administrator, and recover judgment against his...