Smith v. Oliver

Citation157 S.W.2d 558
Decision Date01 December 1941
Docket NumberNo. 20002.,20002.
PartiesSMITH v. OLIVER et al.
CourtCourt of Appeal of Missouri (US)

Appeal from Circuit Court, Callaway County; W. M. Dinwiddie, Judge.

"Not to be published in State Reports."

Suit in equity by Willard Smith against Mary C. Oliver, administratrix of the estate of Amelia Simcoe, deceased, and others, to have plaintiff declared to be the adopted son and legal heir of Amelia Simcoe, deceased. From a decree for plaintiff, the named defendant appealed to the Supreme Court, and that court transferred the cause to the Kansas City Court of Appeals, 148 S.W.2d 795. Plaintiff moves to dismiss the appeal.

Decree reversed in part.

W. B. Whitlow and T. A. Faucett, both of Fulton, and Cave & Hulen of Columbia, for appellant.

D. M. Cuthbertson and Baker & Baker, all of Fulton, for respondent.

BLAND, Judge.

This is a suit in equity by which plaintiff seeks to have himself declared to be the adopted son and legal heir of Amelia Simcoe, deceased. The defendants are Mary C. Oliver, administratrix of her estate, and the collateral heirs of Mrs. Simcoe, who left no descendants and died intestate. She left an estate of the appraised value of $12,543.23, all personalty.

The lower court decreed that the plaintiff was the adopted son of the said Amelia Simcoe and entitled to her estate and ordered that the administratrix, upon final distribution of the estate, deliver it to the plaintiff. Defendants filed a motion for a new trial, which was overruled. The administratrix, alone, appealed. The appeal was allowed to the Supreme Court but that court transferred the cause to this court. See Smith v. Oliver, 148 S.W.2d 795. Plaintiff has filed a motion to dismiss the appeal on the ground that the administratrix is not a party aggrieved by the decree and, therefore, not entitled to appeal.

The Supreme Court in Love v. White, Administrator, 154 S.W.2d 759, 760, said in a case much like this one:

"Although the personalty descended to the administrator, § 306, R.S.Mo.1939, [1] Mo.St.Ann. § 306, p. 194, and though he is ordinarily a necessary and proper party to actions involving the personal property of his deceased (21 Am.Jur. §§ 284, 939, 940, pp. 539, 901, 902), he is in reality a trustee for the benefit of creditors, legatees, heirs and distributees. Here, the equitable title at least, is in the heir. Richardson v. Cole, 160 Mo. 372, 61 S.W. 182, 83 Am.St.Rep. 479; Byers v. Weeks, 105 Mo.App. 72, 79 S.W. 485; Brewster v. Gage, 280 U.S. 327, 50 S.Ct. 115, 74 L.Ed 457; McBride v. Vance, 73 Ohio St. 258, 76 N.E. 938, 112 Am.St.Rep. 727, 729 . The administrator makes no claim to any part of the estate personally. In re Estate of Messersmith, 264 Mo. 610, 175 S.W. 914.

"Here all the heirs, legatees and devisees were made parties to the suit and after a trial by the court the heirs did not even file a motion for new trial. Four legatees joined with the administrator in the motion for a new trial, but he alone expressed a willingness to appeal. True it is his duty to see to it that the estate is distributed to the proper heirs, legatees and devisees, but here all possible beneficiaries of the estate were parties to the action and have abandoned their right to appeal and thereby any claim they may have had to the estate. And, if they are willing to surrender their rights and claims the administrator is in no position to complain, and especially so since it does not appear that there are any creditors. The status of the administrator is not affected by this action and when his final settlement is approved his only duty is to deliver the property in his hands to the rightful heirs.

"It is our judgment that the administrator in this case is not a `party to a suit aggrieved by any judgment' and that his appeal is and should be dismissed."

In view of the decision of the Supreme Court in the case of Love v. White, we are of the opinion that the administratrix has no interest in the determination as to who are the next of kin of Amelia Simcoe, such as to permit her to appeal and raise any issue as to that matter.

It is true, in the case at bar, there is a claim of almost $4,000 pending against the estate, while in the Love case there did not appear to be any creditors. However, the difference in the facts in the two cases does not render them distinguishable. The rights of a creditor cannot be injured in any way by the decree of the court establishing the right of plaintiff to inherit as an adopted child of deceased. The rights of heirs, legatees, and next of kin, are subordinate to those of creditors in the distribution of estates. Sec. 237, R.S.1939; 21 Am.Jur.Prud. p. 604; 24 C.J. pp. 466, 467; Lewis v. Carson, 93 Mo. 587, 3 S.W. 483; Eoff v. Tompkins, 2 Mo.App. 464; Wood v. Donaldson, 87 Mo.App. 1. This suit does not constitute a claim against the estate but is to determine to whom the estate shall be distributed, after all just debts of the deceased, duly allowed by the Probate Court, have been satisfied or disposed of and no creditor, as such, is interested in how the controversy is settled as its determination cannot prejudice, in any way, his claim properly asserted. The administratrix is not an aggrieved party in contemplation of the statute allowing appeals. Sec. 1184, R.S.1939; Bryant v. Thompson, 128 N.Y. 426, 28 N.E. 522, 13 L.R.A. 745; Gallagher's Appeal, 89 Pa. 29; In re Murphy's Estate, 145 Cal. 464, 78 P. 960, 961; Case v. Deal, 177 Ind. 288, 98 N.E. 56; Appeal of Stilphen, 100 Me. 146, 60 A. 888, 4 Ann.Cas. 158; Wick's Estate 50 Pa.Super. 614; In re Richmond, 63 App.Div. 488, 71 N.Y.S. 795; Bates v. Ryberg, 40 Cal. 463; In re Estate of Stephen A. Wright, 49 Cal. 550; Roach v. Coffey, 73 Cal. 281, 14 P. 840; In re Estate of Sanborn, 98 Cal. 103, 32 P. 865; In re Hickman's Estate, 101 Cal. 609, 36 P. 118; Wilson v. Board of Regents, 46 Colo., 100, 102 P. 1088; Tuckerman v. Currier, 54 Colo. 25, 129 P. 210, Ann.Cas. 1914C, 599; 3 C.J. p. 645; 4 C.J.S., Appeal and Error, § 193; 24 C.J. p. 535; 2 Am. Jur.Prud. ...

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