Smith v. Hauger

• Citation: 51 S.W. 1052,150 Mo. 437
• Parties: SMITH et al. v. HAUGER.
• Decision Date: 14 June 1899
• Court: United States State Supreme Court of Missouri

51 S.W. 1052

150 Mo. 437

SMITH et al. v. HAUGER.

Supreme Court of Missouri. Division No. 1.

June 14, 1899.

EXECUTORS AND ADMINISTRATORS — CONCLUSIVENESS OF SETTLEMENT — ACTION TO SET ASIDE — FINDINGS.

1. A judgment of the probate court, finally settling and distributing the estate, and discharging the executor, without objection, from a specific legatee, is a final judgment, which, after the term at which it was entered, can be set aside only by direct proceedings in equity, on the ground of fraud, and with the parties brought into court by summons, and not by mere notice.

2. A finding that a final settlement by an executor was acquiesced in by a specific legatee, "under a misapprehension of fact," is erroneous, where the complaint seeking to have the settlement disregarded only claims that it was founded upon "a verbal agreement" between the legatee and the executor, which had not been lived up to.

Appeal from circuit court, Clinton county; William S. Herndon, Judge.

Ejectment by Hiram Smith and others against Andrew D. Hauger. Judgment for defendant, and plaintiffs appeal. Affirmed.

Ejectment to recover 20 acres of land in Clinton county. The petition is in the usual form, and the answer is a general denial. The facts are these: In December, 1884, William Hauger died, testate, seised of certain lands, those here involved included, and certain personal property. He devised the personal property to his wife, Christina, absolutely, and gave her a life estate, without power of disposal, in the real property, and the remainder in the real estate he bequeathed to his two sons, Andrew Dickson Hauger (the defendant) and Jonathan Hauger, in fee simple absolute, in equal parts. He appointed his wife executrix, without bond. Then he directed that, after the debts were paid, his wife should pay to his children, "in the order named, each of the following specific legacies: To William H. Hauger, $150; Amanda Myers, $1; Luranna Adaline Smith, $1; Nancy A. M. Hauger, $1; Isaac Leonidas Hauger, $1; and to Aaron Lewis Hauger, $1." The executrix administered the estate, and, after proper notice, made final settlement on the 3d of February, 1894, on which it appeared that there was a balance due the estate of $121.68; and the court, finding that all the debts, costs, and expenses had been fully paid, ordered the said balance to be paid to the widow as the legatee of the personal property, and on the 16th of February, 1894, entered final judgment discharging the executrix. On the 15th of February, 1895, William H. Hauger, one of the specific legatees, presented a petition to the probate court of Clinton county, in which he represented to that court that the executrix had paid all the debts of the estate, but had not executed the will, in that she had not paid him the specific legacy of $150 bequeathed to him by his father; and further alleging "that on the ____ day of ____, 1894, the said Christina Hauger made an alleged final settlement of her accounts as such executrix, this legatee interposing no objection, because a verbal agreement for the payment of said legacy had been entered into between plaintiff and defendants" (the petition was entitled "William H. Hauger, Plaintiff, vs. Christina Hauger, Andrew D. Hauger, and Jonathan Hauger, Defendants"), which defendants had refused to carry out, and asking the court "to disregard said settlement so far as the same is held to be a final settlement of said estate, and that the said executrix be required to execute said will specifically by paying plaintiff the said legacy of $150, with interest on said sum at the rate of 6 per cent. per annum, and for such purpose to sell any part of said real estate devised to defendants as aforesaid, and for other relief." The persons named as defendants were served by the sheriff on December 6, 1894, with a copy of the petition, and a notice from the person named as the plaintiff, and signed by his attorney, that he would present the petition to the probate court of Clinton county at its February term, to begin on the second Monday in February, 1895. It does not appear from anything in the record in this case whether the so-called defendants appeared in the probate court, as so required, or not, but on the 15th of February, 1895, that court entered an order reciting the filing of the petition, and stating that it had been proved, to the satisfaction of the court, that notice of the application had been given "to the abovenamed defendants," and that "the court being satisfied [it does not state that any proofs were adduced or evidence heard, — just "satisfied"] that the settlement as made by the executrix as and for a final settlement was made by her and acquiesced in by all the parties hereto under a misapprehension of fact [it is not stated what that fact was which the parties misapprehended], the court finds that the said William H. Hauger, under and by virtue of said will, is entitled to the sum of $150, and that the same dominates the residuary devise or legacy given by the terms of said will to the defendants, and that the legacy aforesaid had never been paid, in whole or in part"; and then the court found that...