State v. Anthony

• Decision Date: 24 April 1888
• Parties: STATE OF MISSOURI to the use of EMMA KITCHELL, Respondent, v. HENRY ANTHONY, Appellant.
• Court: Missouri Court of Appeals

30 Mo.App. 638

STATE OF MISSOURI to the use of EMMA KITCHELL, Respondent, v. HENRY ANTHONY, Appellant.

Court of Appeals of Missouri, St. Louis.

April 24, 1888

APPEAL from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Reversed and judgment.

H. A HAEUSSLER and W. M. HEZEL, for the appellant: There was no evidence to sustain the judgment, and the same was against the evidence and the law. The probate court had full and final jurisdiction in the premises, and the circuit court cannot overrule and set aside judgments in the manner it did in this case. Camden v. Plain, 91 Mo. 118; Rowden v. Brown, 91 Mo. 429.

HENRY BOEMLER, for the respondent: The probate court has a right to make an order on the administrator at the time of final settlement to pay over money to the widow, heirs, legatees or distributees, of an estate, and if he fails to make such payments, proceedings may be had against him or his securities. 1 Wag. Stat., 1872, p. 112, sec. 10. Until the heirs receive the personal property of a decedent or proceeds of administration the legal title thereto is in the administrator. Rouggby v. Tiechman, 10 Mo.App. 257; Hanenkamp v. Borquiver, 32 Mo. 569.

OPINION

THOMPSON J.

This was an action upon an administrator's bond. In the petition on which the cause went to trial, the breach assigned was that the administrator made a final settlement showing a balance of $467.96 in his hands for distribution which the court ordered him to pay over to the two heirs, one of whom was this plaintiff, and that the administrator failed and refused to comply with the order and converted the money to his own use. At the close of the plaintiff's evidence the court permitted the plaintiff to amend the petition, so as to charge that, upon the final settlement of the administrator, the probate court made the following order: " Final settlement and discharge. Frederick E. Bayer, administrator of Frederick Bilgushausen, deceased, appears and exhibits his accounts for the final settlement of his administration of said estate, together with proof of the due publication of notice given by him as required by law of his intention to make such settlement; upon examination whereof the court finds a balance against him, in favor of said estate, of four hundred and sixty-seven dollars and ninety-six cents, which balance the court orders to be retained by him, the said Frederick E. Bayer, and appropriated to the support and maintenance of the two children of said deceased; and thereupon the court now finally discharges him as administrator." The remaining portion of the petition as amended stood as before, charging--not that the administrator failed to appropriate the fund so left in his hands to the support and maintenance...