Vorderstrasse's Estate v. Haumueller

• Decision Date: 02 December 1924
• Docket Number: No. 18696.,18696.
• Citation: 266 S.W. 1019
• Parties: VORDERSTRASSE'S ESTATE v. HAUMUELLER.
• Court: Missouri Court of Appeals

266 S.W. 1019

VORDERSTRASSE'S ESTATE v. HAUMUELLER.

No. 18696.

St. Louis Court of Appeals. Missouri.

December 2, 1924.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Exceptions to final settlement of Albert C. Haumueller, executor of the estate of Caspar Vorderstrasse, deceased. From judgment sustaining an exception, the executor appeals. Affirmed.

Frank H. Haskins, of St. Louis, for appellant.

William L. Bohnenkamp, of St. Louis, for respondent.

BRUERE, C.

This action is based upon exceptions filed on August 15, 1921, by the heirs of Caspar Vorderstrasse, to the final settlement of Albert C. Haumueller, executor of the last will and testament of Caspar Vorderstrasse.

Several exceptions were filed to the final settlement, but the only one in dispute here reads as follows:

"The executor made a charge against the estate and took a credit in his favor of 5 per cent. commission on $1,950, when as a matter of fact he distributed no such sum and therefore was not entitled to charge said commission of $97.50, against said estate and to take credit therefor in his favor. The sum of $1,950, upon which said commission was charged, was not an asset of the aforementioned estate, nor was it distributed."

The exception was sustained by the probate court. An appeal was prosecuted from said judgment to the circuit court of St. Louis county, where the matter was heard, and a like judgment entered. This appeal followed.

The undisputed facts are these: Caspar Vorderstrasse, by his last will and testament, divided his property, both real and personal, among his five children, viz., Henry, Benjamin, Edward, Augusta, and Emma Vorderstrasse. In said will he made a bequest of $600 to each of his children, with the exception of Benjamin, to whom he gave $200, stating in the will that he had already advanced him $400, and also excepting his son, Henry, to whom he refers in said will as follows:

"Second: Having already given my beloved son, Henry Vorderstrasse, the sum of six hundred dollars as a start in life, and on January 5, 1904, having also advanced him an additional sum of one thousand nine hundred and fifty dollars ($1,950.00), I direct that the aforesaid one thousand nine hundred and fifty dollars ($1,950.00) with interest at the rate of three per cent, per annum be paid my estate."

All the residue of his property he bequeathed and devised in equal shares to his aforementioned five children. The inventory showed that said estate consisted of personal property of the value of $4,071, and real estate of the value of over $15,000. The final settlement showed that the personal property was more than sufficient to pay the special bequests, the debts of the estate, and the cost of administration; there being left (according to the final settlement) for distribution out of the personal estate the sum of $2,705.02.

Prior to the filing of the said final settlement, all of the children of Caspar Vorderstrasse executed and delivered to the executor, Albert C. Haumueller, the following agreement:

"Whereas the second clause of the will of Caspar Vorderstrasse provided that his son, Henry Vorderstrasse, pay to the estate the sum of one thousand nine hundred and fifty dollars ($1,950.00), with interest at the rate of 3 per cent. per annum from January 5, 1904, and whereas the heirs and devisees of Caspar Vorderstrasse have agreed among themselves regarding the payment of said sum by Henry Vorderstrasse, now, therefore, it is agreed by the heirs and devisees aforesaid that the executor, Albert C. Haumueller, be relieved from the collection of the said sum from Henry Vorderstrasse, and be permitted to settle the estate with like force and effect as if the same had been collected, and without liability or responsibility for not having collected same."

In said final settlement the executor credited himself with the sum of $97.50, as commission at 5 per cent. upon...