Branson v. Branson

102 Mo. 613 | Mo. | 1890

Black, J.

— The plaintiffs, Branson and Owens, as administrators of the estate of David Branson, filed in the probate court of Phelps county their final settlement, to which four of the heirs filed exceptions. The issues thus made were heard by the probate court on the ninth of September, 1886. Some of the exceptions were sustained and others overruled. The judgment of the probate court is to the following effect: First. That the administrators stand charged with the sum of $4,024.64; second, that they pay designated allowed demands; third, that they pay to each distributee $508.57 ; fourth, that they sell the uncollected notes and accounts and some other personal property and report at the next November term ; and the order concludes by continuing the settlement to the next term for final approval. The administrators appealed from the foregoing order at the term at which it was made.

The controversy was heard anew in the circuit court at its February term, 1887. It seems the probate court overlooked a prior order directing the administrators to pay to each distributee the sum of $240. The circuit court corrected this error, but the amount adjudged to be in the hands of the administrators is the same as that found to be due by the probate court. No further steps were taken in the case at that term of the circuit court; but at the following August term the administrators made a report of their sale of notes and accounts, exhibited receipts from all of the distributees for amounts ordered to be paid under former orders of the probate and circuit courts, and the circuit court then made an additional order of distribution of the proceeds arising from the sale of notes and accounts, and discharged the administrators. The defendants at' that term filed various motions and took a bill of exceptions, and appealed to this court.

1. The first contention on the part of the defendants is that the appeal from the probate court was taken before that court had rendered any final order or judgment on the settlement, and for that reason the circuit court acquired no jurisdiction of the case.

That appeals may be taken from the probate court on.all final settlements and from all orders making distribution, cannot be doubted. But the contention is that the order of distribution and order settling the accounts are distinct orders, and the order settling the account was continued until the next term of the probate court, so that there was no final adjudication. The order of the probate court continuing the settlement to the next term for final approval was made pursuant to section 241, Revised Statutes, 1879, which provides that, at the time of making the final settlement, ‘ ‘ The court may, in its discretion, order the executor or administrator to sell at public auction all notes, accounts and choses in action, remaining in his hands, upon such terms as it may direct, and report the proceeds of such sale to the court at its next regular term, and said settlement shall be continued to such term.”

Does this statute mean that the entire settlement shall remain open until the incoming of the report of sale of uncollected notes, or does it mean that the continuance is made for the sole purpose of disposing of the remaining matters necessary to be done before the administrators can be discharged ? We think it means the latter, and for these reasons: The court, before making an order of sale, must determine finally the question as to what notes and accounts shall be credited to the administrator; for it is the notes and accounts for which he receives credit that are to be sold. Again, the parties prepare for trial of the issues presented by the exceptions, and it cannot be said that the whole matter remains open after trial and judgment. The judgment entered by the probate court in this case is complete ; it fixes the amount for which the administrators must account; it requires and calls for no subsequent approval whatever. The administrators, by the settlement, as presented by them, disclosed an indebtedness to the estate of $2,686, but the court increased the amount to $4,024. That judgment was final and conclusive as far as concerned any action of the probate court, and in our opinion the appeal was properly taken at the term at which the order was made; and this, too, though we treat the order as one concerning the final settlement only.

But there is another answer to the claim, that the circuit court acquired no jurisdiction of the controversy. The statute gives an appeal from “ all orders making distribution.” It can make no difference at what stage of the proceedings the order of distribution is made. A party deeming himself aggrieved is allowTed an appeal from all such orders, whether made during or at the close of the administration proceedings. This seems to be conceded by counsel for defendants, but the claim is that an appeal from the order of distribution made in this case would not take with it the order concerning the statement of the accounts. To this proposition we do not agree. The order of distribution was but a result flowing from the order fixing th e amount in the hands of the administrators. To review this order it was necessary to review the order fixing the amount due from the administrators, for the amount to be distributed depended on the amount in their hands. Oases may arise where these orders may be treated as separate and distinct, but that is not the case here. It follows that the circuit court did acquire jurisdiction to hear and determine the entire controversy passed upon by the probate court.

2. The case was heard and judgment rendered on appeal in the circuit court at its February term, 1887, but no motion for new trial or bill of exceptions was filed at that time. At the following August term the defendants sought to have the administrators charged with commissions which had been allowed to them in the previous settlement, on the ground that they had agreed to administer the estate free from charges for their services ; but the evidence was excluded.

The judgment rendered by the circuit court at its February term gave to the administrators the commissions which the defendants now seek to have charged back. That judgment is final and conclusive. It settles the right of the administrators to have the commissions so long as it remains in full force and effect. The evidence was, therefore, properly excluded. No timely appeal was taken from that judgment, and the judgment and proceedings in the circuit court leading to it are not before us for review.

' It is true the circuit court made an order for the sale of the notes, accounts and stock, and directed the administrators to report to the next term of that court, and then made an order like that made by the probate court continuing the settlement to the next term for final approval; but this continuance had reference to the future orders which the court supposed it had a right to make, and did not keep open the judgment then rendered.

3. Exceptions were taken and duly preserved to the orders made by the circuit court at the August term, and the question arises whether that court could go on and close up the administration by receiving the report of sale of the notes and accounts, make an additional order for the distribution of the proceeds arising from that sale, and discharge the administrators.

The statute provides in express terms that the appeal in probate matters shall not be a supersedeas in any other matter relating to the administration of the estate, except that from which the appeal is specially taken ; and the proceedings had in the circuit court must be certified back to the probate court. R. S. 1879, secs. 297, 800. It is, therefore, clear that the appellate court acquires jurisdiction only of the particular order or judgment appealed from. It is that order and that only which it can reconsider. Nor does the appellate court carry into effect its own order, but its decision is certified to the probate court, which proceeds in conformity therewith. 2 Woerner on-Am. Law of Admin., p. 1202.

When the circuit court rendered its judgment on the matter from which the appeal was taken, its powers and duties ceased. It had no jurisdiction to go on as it did and complete the administration. That power and duty belonged to the probate court. It, therefore, follows that the orders made by the circuit court at its August term, 1886, must be and they are hereby reversed. To avoid any misunderstanding, it may be added that the judgment of the circuit court concerning the settlement and distribution stands in full force and effect and should be certified to the probate court.

All concur.