State v. Stolte

• Decision Date: 03 January 1928
• Docket Number: No. 16073.,16073.
• Citation: 1 S.W.2d 209
• Parties: STATE ex rel. AUFDERHEIDE v. STOLTE, Judge of Probate Court.
• Court: Missouri Court of Appeals

1 S.W.2d 209

STATE ex rel. AUFDERHEIDE v. STOLTE, Judge of Probate Court.

No. 16073.

Kansas City Court of Appeals. Missouri.

January 3, 1928.

"Not to be officially published."

Original proceeding in prohibition by the State of Missouri, on the relation of Bertha S. Aufderheide, administratrix of the estate of George F. Aufderheide, deceased, against H. L. Stolte, Judge of the Probate Court in and for Gasconade County, to prevent the enforcement of a final order of distribution made in the estate of George F. Aufderheide, deceased. Preliminary rule made absolute, with directions.

Frank J. Quinn, of St. Louis, for relator.

A. B. Holmes, of Rolla, for respondent.

FRANK, C.

Original proceeding in prohibition against respondent, as judge of the probate court of Gasconade county, to prevent the enforcement of a final order of distribution made by him in the estate of George F. Aufderheide, deceased, of which relator is the duly appointed, qualified, and acting administrator. Upon examination of relator's petition, our preliminary rule issued and respondent thereafter filed return thereto. Upon suggestion of relator that issues of facts were joined by the pleadings, this court appointed Hon. W. L. Cole as commissioner to take testimony on the issues joined and report same, together with his findings of fact thereon, to this court.

The substance of relator's petition is: That after her appointment as administratrix of said estate she filed in said court an inventory and appraisement of the personal property belonging to said estate. That thereafter in December, 1922, she filed in said court her first annual settlement showing the balance in her hands as administratrix of said estate to be $27,677.64, which consisted of uncollectable accounts receivable in the sum of $9,550.48 and other personal property and money. That during the intervening years between 1922 and 1926, she filed annual settlements each year. That on May 24, 1926, the minor heirs of deceased through their curator and attorney filed a petition in said court praying for an order requiring relator to appear and make final settlement of said estate on July 19, 1926. That upon a hearing on said petition, respondent issued and caused to be served upon relator a citation commanding her to make final settlement of said estate in said court on July 19, 1926. That in response to said citation respondent filed a return thereto in which it was recited that she could not make a final settlement of said estate because all of the debts owed by said estate had not been paid, and that money due the estate had not been collected in the following particulars, to wit: That there was pending in the circuit court of the city of St. Louis a cause entitled Bertha S. Aufderheide, Administrator of Said Estate, Plaintiff, v. Albert F. Aufderheide, Defendant. That said cause had been appealed from the justice court where said estate obtained a judgment against said defendant in the sum of $337.39. That the attorney's fees in said cause had not been paid. That on July 19, 1926, respondent by order entered of record found that the facts recited in relator's return to said citation were not sufficient to show that final settlement of said estate should not be made and ordered said cause continued until August 23, 1926, at which time relator should make final settlement of said estate, and in event of her failure so to do her letters of administration might be revoked. That thereafter relator and the minor heirs of deceased through their curator stipulated and agreed in writing that a final settlement of said estate would be filed in said court on September 9, 1926, and acted upon by the court on September 16, 1926. That on said September 16, 1926, relator filed her settlement in said estate showing balance due in her hands the sum of $6,939.23, which consisted of uncollectable accounts receivable in the sum of $6,371.60, cash in the sum of $491.01, and other small items of personal property; that on said date the minor heirs of deceased filed in said court their exceptions to relator's settlement. That on said last-named date said probate court sustained the exceptions of said minor heirs to relator's settlement and found that relator should be charged in said settlement with $40,426.90 and credited with $26,480.41, leaving a balance due said estate in the sum of $13,946.49, and ordered and adjudged that relator as such administratrix should distribute said balance equally among relator and the two minor children, heirs of deceased. That on the date said order of distribution was made, relator filed a motion in said court asking that said judgment and order of distribution be set aside because (1) no notice of final settlement had been published as required by law; (2) that the personal property in relator's hands could not be divided in kind, but would have to be sold and the proceeds divided among the heirs; (3) that claims due said estate were in litigation and undisposed of; and (4) that the court had no power or authority under the law to make said order of distribution; that relator's motion to set aside the order of distribution made by said court was overruled.

The petition further alleges that no notice of final settlement of said estate was published as required by the statute. It is also alleged that respondent had no jurisdiction or authority to require relator to make a final settlement and that the order and judgment of said court directing her to make final distribution of said estate was without jurisdiction.

Pursuant to said appointment, said commissioner took the evidence in said cause on July 18, 1927, and reported same, together with his finding of facts thereon, to this court.

The finding of facts made by said commissioner is as follows:

"That George F. Aufderheide died intestate at Gasconade county, Mo., on the 8th day of March, 1922; that on the 16th day of March, 1922, relator was by the probate court of Gasconade county, Mo., duly appointed administratrix of said estate, and was at all times and dates mentioned in the pleadings and the evidence acting as said administratrix; and that respondent was at all times since May, 1924, and now is, the duly qualified and acting judge of the probate court of and for Gasconade county, Mo.

"That at the November term, 1922, of the Gasconade county probate court relator filed her first annual settlement, and during the intervening years between 1922 and 1926 relator filed periodical settlements with the said probate judge; that on the 24th day of May, 1926, Clare Aufderheide and Gladys Aufderheide, two minor heirs of the deceased, through their curator and by attorney, filed a petition asking the court to direct and require relator to appear and make final settlement of said estate; that pursuant to said application and petition respondent issued and caused to be served upon relator the citation mentioned in the petition and writ, returnable on July 19, 1926; that in response to said citation the relator filed the return mentioned and set forth in the petition and writ, and that on July 19, 1926, said court made and entered of record in said cause the order mentioned and set forth in the petition and writ, which order found that the return filed failed to show cause for not making final settlement.

"That thereafter the said parties to said estate, through their respective attorneys, entered into a stipulation wherein the question of the consideration of a settlement should be continued until the 16th day of September, 1926, but which stipulation provided that the settlement should be filed on September 9, 1926, and be taken up for consideration on September 16, 1926; that pursuant to said stipulation relator filed with the probate court of Gasconade county, Mo., the purported final settlement mentioned in the petition; that on September 16, 1926, Clare Aufderheide and Gladys Aufderheide, minors, through their curator and by attorney, filed their objections and exceptions to said settlement, which were sustained by the court on said 16th day of September, 1926, and said objections and exceptions are set out in the petition filed herein.

"That on said date the probate court of Gasconade county made and entered of record an order of distribution on the said settlement filed in said cause, a copy of which order is correctly set out in the petition filed herein.

"That thereafter relator filed in said court a motion to set aside said order of distribution and expunge same from the record, and that said motion was by said court overruled.

"That a final settlement notice in said estate was published prior to the May term of said court, 1923, but that the relator did not sign said notice and was not responsible for its publication; that there was another final settlement notice published prior to the February term 1925, of the said probate court, but that relator did not sign this notice, and was not responsible for its publication.

"That there is and was at the time of the purported final settlement pending in the circuit court of the city of St. Louis a cause wherein Bertha S. Aufderheide, as administratrix of the estate of George F. Aufderheide, deceased, was the plaintiff, and Albert Aufderheide, of the city of St. Louis, Mo., was the defendant, an action wherein the plaintiff had undertaken to recover in a justice court of the city of St. Louis a judgment for a certain sum of money due the estate of George F. Aufderheide; that a judgment had been secured in the justice court in said cause and appealed by the defendant to the circuit court of the city of St. Louis, and was there pending at the time of this purported final settlement, and is yet pending in said court.

                   "Respectfully submitted
                       "W. L. Cole, Special Commissioner."
                

The evidence taken by the commissioner and reported to this court justifies the finding of facts made by him.

Relator contends that the act of respondent in...