OPINION
SMITH,
J.
This is the third time this case has been to
this court on appeal. In the first instance, the opinion is
reported in 74 S.W.2d 904. In the second appeal the case is
reported in 99 S.W.2d 476. A reading of those opinions will
show the questions at issue in each of those appeals.
When
the case was before us on the first appeal the plaintiff,
Laura J. Lankford was asking for all the balance then due as
the sole and only heir or distributee of the estate of Kent
H. Lankford, a World War Veteran. We reversed and remanded
the case because of errors in that proceeding. The reasons
may be found by referring to 74 S.W.2d 904.
The
cause was tried again in the circuit court and appealed again
to this court. This court reversed and remanded the case,
with directions. Those interested may find the holdings of
this court in 99 S.W.2d 476.
The
record before us on the present appeal shows that the trial
court, in compliance with our directions in the second
remanding of the case, on May 13, 1937, entered the following
judgment:
"Now
on this day, the above entitled cause coming on for disposal,
and the mandate of the Springfield Court of Appeals having
been filed herein, and said mandate having directed that the
judgment hereinbefore rendered by this court in this cause be
reversed, annulled and for naught held and esteemed and
having directed a judgment in favor of the plaintiff and
against the defendant in the amount of two hundred
forty-eight dollars and fifty cents ($ 248.50), and the
defendant having heretofore on the 31st day of October, 1935,
tendered into court the said sum of two hundred forty-eight
dollars and fifty cents ($ 248.50); and the court being fully
advised in the premises, the court finds that the plaintiff
is entitled to recover against the
defendant upon the bond sued upon, and further finds that the
amount of plaintiff's damages is the sum of two hundred
forty-eight dollars and fifty cents ($ 248.50).
"It
is therefore ordered, adjudged and decreed that the judgment
of this court, hereinbefore rendered in this cause on the
31st day of October, 1935, be and the same is hereby set
aside, annulled and for naught held and esteemed.
"It
is further ordered, adjudged and decreed by the court that
plaintiff have and recover of the defendant on said bond the
sum of twelve thousand dollars ($ 12,000.00), the penalty of
said bond, together with her costs herein incurred to and
including
the 30th day of October, 1935, the date upon which defendant
made said tender, and that costs thereafter accruing be
charged and taxed against the plaintiff; that plaintiff's
damages be fixed at the sum of two hundred forty-eight and
50/100 dollars ($ 248.50), and defendant having heretofore
paid into court the sum of $ 248.50, and costs herein,
including to the 31st day of October, 1935, that said sum of
$ 248.50 shall be applied in full satisfaction of this
judgment against defendant, and that no execution shall issue
against the defendant herein."
Briefly
stated, the facts developed in the two prior trials show that
Kent H. Lankford was a World War Veteran and as such was
insured in the sum of ten thousand dollars in which his
father, Charles Lankford was named as beneficiary. Kent H.
Lankford died and certain monthly installments from said
policy were paid to his father Charles Lankford and until
Charles Lankford died. At the death of Charles Lankford,
there was a balance due from the United States Government of
the insurance upon the life of Kent H. Lankford in the sum of
$ 6130. A. L. Box was appointed administrator of the Estate
of Kent H. Lankford and gave a bond as such administrator
with the Fidelity and Deposit Company of Maryland, as surety.
The Kent H. Lankford Estate was administered and all the
debts paid leaving a balance of $ 5597 in that estate for
distribution. One-half of the above amount was disposed of in
the last opinion of this court and as entered by the trial
court in its judgment heretofore quoted in this opinion
showing that Laura Lankford, the plaintiff in the original
suit, was entitled to a balance at that time of $ 248.50,
which amount had been previously tendered by the defendant
surety company. After this decree had been entered by the
trial court, there remained a balance of $ 2798.50 which had
not been distributed, and it is over this balance that this
appeal is concerned.
After
the trial court's judgment as above quoted was entered,
then on May 29, 1937, Laura J. Lankford, administratrix
de bonis non of the estate of Charles Lankford,
deceased, was permitted to file a petition for a writ of
scire facias. Thereafter on October 27, 1937, she filed an amended petition. This amended
petition, caption and signature omitted, is as follows:
"Comes
now Laura J. Lankford, administratrix de bonis non
of the estate of Charles Lankford, deceased, and with leave
of court first had and obtained, files herewith her first
amended application for writ of scire facias and
states that she was duly appointed as administratrix de
bonis non of the estate of Charle Lankford by the
probate court of Newton County, Missouri, at the . . . .
Term, 1932, of said court and that she duly qualified as such
administratrix and is now acting in said capacity.
"Your
petitioner further states that heretofore, to-wit, on the
. . day of . . . ., in this court in this case, a judgment
was rendered against the defendant in the amount of $
12,000.00 for the penalty of a certain administrator's
bond executed by said defendant in the Probate Court of
Newton County, Missouri, as surety for A. L. Box, the
administrator of the estate of Kent H. Lankford, deceased,
and that said judgment forfeiting said bond remains as
security for any other damages sustained as a result of other
breaches of the condition of said bond, the performance of
which was secured by the said bond.
"Your
petitioner further states that the defendant, by the terms
and conditions of said bond, bound itself, its heirs,
executors, administrators and assigns, jointly and severally,
unto the State of Missouri, to the faithful administration of
said estate, to the proper account for, payment and delivery
of all money or property of said estate and the performance
of all other things touching said administration, required by
law on the order or decree of any court having the
jurisdiction thereof, by the said A. L. Box, administrator as
aforesaid of the estate of Kent H. Lankford, deceased, as by
law in which cases made and provided; that a certified copy
of said bond is a matter of record in this case.
"Your petitioner further states that at the August Term,
1929, of the Probate Court of Newton County, Missouri, the
said administrator, A. L. Box, filed his final settlement of
the estate of Kent H. Lankford, deceased; that said
settlement disclosed that the balance of the assets of the
estate of Kent H. Lankford, after deducting $ 533.00, was $
5597.00, and said amount was charged against him, the said A.
L. Box, as administrator.
"Your
petitioner further states that the said Kent H. Lankford,
deceased, was a war veteran; that the money received by the
said administrator, A. L. Box, for the estate of Kent H.
Lankford was the proceeds
of a war risk insurance policy; that the said Kent H.
Lankford died intestate and that his only heir at law
surviving him at the time of his death was Charles Lankford,
his father; that your petitioner, for the estate of the said
Charles Lankford, the sole heir of the
estate of Kent H. Lankford, is entitled under the law to the
distribution of all the assets remaining in the estate of
Kent H. Lankford, deceased, for distribution by her as such
administratrix, to the persons entitled to receive the same
under the law.
"Your
petitioner further states that all the debts of the estate of
Kent H. Lankford, deceased, have been paid and that more than
one year has elapsed since letters of administration have
been granted to A. L. Box, administrator, and he qualified as
such administrator; that after the payment of debts of the
estate of Kent H. Lankford, deceased, one-half of the amount
remaining in the estate has been paid to one Laura J
Lankford, as the widow of Charles Lankford, deceased, and
that the administrator of the estate of Kent H. Lankford is
charged with the sum of $ 2798.50, the remaining one-half of
the funds of said estate, and that said sum became and was
due to this petitioner as administratrix of the estate of
Charles Lankford on the . . . . day of August, 1929, the date
of the filing of final settlement in the estate of Kent
Lankford, deceased, but that the said administrator of the
estate of Kent Lankford then failed and refused and still
fails and refuses to pay her, as administratrix de bonis
non of the estate of Charles Lankford, deceased, for the
use and benefit of said estate the said sum of $ 2798.50;
that such failure of the administrator of the estate of Kent...
