"As there is no controversy between counsel as to the facts, we adopt appellant's statement.
"This cause originated in the probate court of the city of St. Louis, and arose out of that court sustaining exceptions to the settlement made by Carrie Miller Peper, as executrix of Charles G. Peper, deceased, who at the time of his death was administrator of the estate of Frederick C. Peper, deceased, with Christian P. Bell, as administrator de bonis non of said last-mentioned estate, up to the date of Charles G. Peper's death. The probate court sustained the exceptions to said settlement, and surcharged the Charles G. Peper estate with the amount of commissions which had been previously allowed to said Charles G. Peper by said St. Louis probate court in the settlement he made during his lifetime, as administrator of the said Frederick C. Peper estate.
"Carrie M. Peper, as said executrix of the Charles G. Peper estate, appealed from said judgment of the probate court to the St. Louis circuit court. The latter court tried the case de novo, principally on an agreed statement of facts, and rendered a judgment in favor of said Christian P. Bell, as administrator de bonis non of the estate of said Frederick C. Peper, and against Carrie Miller Peper, executrix of the said estate of Charles G. Peper, deceased, and the American Surety Company of New York as surety on the appeal bond, in the sum of $3,481.24, from which judgment Carrie M. Peper, as executrix, appealed in due course to this court.
"The particular facts bearing on the questions raised for decision by this court are the following:
"The St. Louis probate court, at its June term, 1915, which was more than one year after the publication of notice of the grant of letters of administration to saw Charles G. Peper, and after all claims and demands had been allowed against said administration estate and paid, made an order therein, directing said administrator to make partial distribution to the heirs of said Frederick C. Peper the aggregate sum of $241,485.21 of the personal assets belonging to said estate, consisting of shares of stock in certain corporations and cash. Under that order the share or Caroline J. Peper, a sister and heir at law of said Frederick C. Peper, consisted of specified shares of stock, aggregating the actual value of $57,298.75 and $53.99 in cash, or a total of $57,352.14.
"In the same order the court expressly allowed to the administrator, and authorized him to pay himself, out of the personal assets remaining in his hands, compensation as administrator, 5 per cent. commissions on the sum distributed by said order, which allowance totaled the sum of $12,074.26, and included commissions on said distributive share of said Caroline J. Peper.
"All of the heirs excepting said Caroline J. Peper accepted their shares under said order. At the December term, 1915, of probate court Charles G. Peper filed his third semiannual settlement as administrator of said Frederick C. Peper estate, which settlement was duly approved by the court, and the administrator took credit therein for the entire $241,485.21 ordered to be distributed as aforesaid, which included said share of Caroline J. Peper, and also took credit for the $12,074.26 commissions, in accordance with said order of distribution, which left in the administrator's hands other personal assets of the estate of the total inventoried value of $93,587.03.
"On the same day the third semiannual settlement was filed and approved by the probate court said administrator also filed a petition in that court, verified by affidavit, showing to the court that said Caroline J. Peper had been tendered, but had refused to accept and receipt for, her said distributive share of the estate
that the administrator had arranged to place the securities and cash constituting said share `in a safe deposit box subject to the joint control of the American Surety Company of New York and himself until said Caroline J. Peper accepts and receipts for same,' and praying the court to reduce his administrator's bond from $400,000, the amount of the same at that time, to $20,000. The probate court sustained the petition, and made an order reducing the bond to said sum of $20,000.
"With respect to the depositing of said securities and cash, the agreed statement of facts in the case contains this admission: `Thereafter, under instructions of the judge of the probate court of the city of St. Louis, the said distributive share of said Caroline J. Peper was set aside and deposited in a place of safekeeping under the joint custody and control of said Charles G. Peper, as administrator, and the American Surety Company of New York, as surety on his bond, and so remained until the day of his (Charles G. Peper's) death.'
"The record does not disclose just when Charles G. Peper died; but his executrix, Carrie M. Peper, filed her settlement as such executrix in the St. Louis probate court at the September term, 1916, thereof with Christian P. Bell as administrator de bonis non of Frederick C. Peper's estate up to the time of the death of said Chas. G. Peper, in which settlement she charged her testator, as administrator of said Frederick C. Peper's estate, with the said balance of $93,587.03, as shown by his third semiannual settlement, made and approved by and at the December term, 1915, of said court. Christian P. Bell, as administrator de bonis non of said Frederick C. Peper's estate, filed exceptions to that settlement, alleging that the said Charles G. Peper, as administrator of the Frederick C. Peper estate, was not entitled to the commission of 5 per cent. on said distributive share of Caroline J. Peper, nor to some other commissions he had taken credit for, because he had not `actually distributed' the assets. Said exceptions were sustained by the probate court, and the appellant here was ordered by that court to surcharge her settlement account accordingly.
"In addition to the foregoing facts, all of which were developed at the trial in the St. Louis circuit court, it is admitted by the agreed statement of facts that after Christian P. Bell was appointed administrator de bonis non of Frederick C. Peper's estate, in place of Charles G. Peper, deceased, he `reduced to his possession the aforesaid distributive share of the said Caroline J. Peper, without giving any receipt therefor to Carrie Miller Peper, executrix' of Charles G. Peper, and retained custody of the same until February 28, 1917, when he delivered said securities to Caroline J. Peper, who receipted to him for the same.
"The agreed statement of facts further provides `that, if the court finds as a matter of law that the account of Carrie Miller Peper, executrix of the estate of Charles G. Peper, deceased administrator of the estate of F. C. Peper, deceased, should be surcharged, as contended for by the respondent, the amount for which the said Carrie Miller Peper, executrix of the estate of Charles G. Peper, deceased administrator of the estate of F. C. Peper, deceased, is liable, is the commission on the distributive share of Caroline J. Peper, amounting to $2,866.63, and an additional sum of $614.61, the same being commissions for which Charles G. Peper took credit,' in said third semiannual settlement.
"It does not appear specifically whether Christian P. Bell has charged, or will charge, the Frederick C. Peper estate 5 per cent. commissions on said distributive share of Caroline J. Peper, to wit, $57,352.74, as aforesaid; but, if Charles G. Peper was not entitled to said commissions, then Christian P. Bell, his successor and administrator de bonis non of the Frederick C. Peper estate, was or is entitled to the same. Therefore practically the only question or controversy here is: Which one of the two administrators is entitled to said commissions?
"The foregoing facts present two questions: (1) Whether that part of the order of partial distribution made by the probate court at the June term, 1915, allowing Charles G. Peper the 5 per cent. commission on the distributive share of Caroline J. Peper, was a final judgment on such question; if so, that would settle the matter, inasmuch as it is admitted there was no appeal taken from said order and judgment; and (2) under the facts heretofore stated, was Charles G. Peper, as a matter of law, entitled to the commission on the share of Caroline J. Peper, he not having actually distributed the fund to her because of the fact that she refused to receive it?"
