121 Mo. App. 397 | Mo. Ct. App. | 1907
The proceeding originated in the probate court of Lawrence county, Missouri, by the filing of a petition therein, wherein plaintiff, an Ohio corporation, stated, in substance, that it is a creditor of the estate of W. W. Baldwin, deceased, of which estate Charles H. Baldwin is the Missouri Administrator ; that W. W. Baldwin was a resident of the State of Ohio at the time of his death (in the year 1900) ; that he died intestate and no sufficient assets were found in Ohio to pay the debts which were there probated against his estate. That at the time of his death, W. W. Baldwin
The prayer of the petition is, in substance, that defendant Charles H. Baldwin, as administrator be ordered to hold the royalties and account for them to the probate court as assets of the estate; and also that he be required to hold all in his hands, received as royalties and to account for them to the probate court, as administrator, and in the future to collect all royalties and account for them as assets and hold them subject to the order of the probate court, instead of paying them over to the heirs of W. W. Baldwin as he had thereto
The petition is really a bill in equity, but as it was treated both in the probate and circuit courts as in the nature of an application for an order on the administrator to account for and inventory assets of the estate, alleged to be in his hands and which he was to thereafter receive, we will disregard the bad pleading of plaintiff, and dispose of the appeal on the theory adopted in both the probate and circuit courts.
1. Respondent contends that the bill of exceptions was filed out of time and for that reason cannot be looked to on the appeal. The motion for new trial was overruled by the circuit court and the appeal was allowed at the November term, 1904, of the Lawrence Circuit Court. At the same term, the court made an order (entered of record) granting appellant time to file bill of exceptions on or before March 13, 1905. On March 8, 1905, appellant and respondent’s counsel, by written stipulation filed in the clerk’s office, agreed that the time for filing bill of exceptions should be extended' to and include the sixth day of July, 1905. The bill was filed on the twenty-second day of June, 1905. Section 3168, R. S. 1889 (sec. 728, R. S. 1899) relating to the time in which a bill of exceptions may be filed, was construed, in the case of State v. Wyatt, 124 Mo. 537, 27 S. W. 1096, to mean that “where the court by its order of record has extended the time for filing the bill of exceptions, counsel by written stipulation may further extend the time,” the stipulation to> be filed and incorporated in the bill of exceptions and entered into before the expiration of the time allowed by the court. This ruling
2. It appears from the evidence that two mines were in operation on the lands described in the petition, one under a lease executed by W. W. Baldwin in his lifetime, the other under a lease executed by Charles H. Baldwin for himself and under a power of attorney from the other heirs of W. W. Baldwin; that before letters of administration were granted respondent, he, as attorney in fact or as agent of the widow and other heirs of W. W. Baldwin, who resided in the State of Ohio, had collected the royalties and, under the impression they were assets of the estate, had, by the consent of the other heirs, transmitted them to the Ohio administrator. During this period, however, the royalties were’ inconsiderable. In the fall of 1903 McKeon, president of appellant, visited Aurora, Lawrence county, Missouri, and informed respondent that his information was that the royalties belonged to the widow and the heirs and not to the estate, and it was at McKeon’s request respondent applied for and procured the order to sell- the lands for the payment of debts. Kespondent testified that after learning the royalties did not belong to the estate, he afterwards distributed them to the widow and heirs of W. W. Baldwin. At no time did he report the receipt of any royalties to the probate court, or inventory any of them as assets of the estate." There is not a ray of evidence- in the record showing, or tending to show, that respondent was negligent in carrying out the order of sale, or that he delayed its execution for the purpose of reaping benefits from the payments of royalties, and the evidence tends to show that the development of the mines by the lessees tended to enhance the value of the lands to a much greater degree than did the talcing
The finding and judgment is for the right party and is affirmed.