Derge v. Hill

103 Mo. App. 281 | Mo. Ct. App. | 1903

ELLISON, J.

— This proceeding is an application bv creditors for the appointment of an administrator ■ de bónis non of the estate of Thomas Hill, deceased. The probate court and the circuit court, on appeal, •denied the application and the applicants have brought the case here.

It appears that Hill died in 1888 leaving a widow .and children, and both real and personal property. The real estate consisted of 451 acres of land and the personalty amounted to more than $4,000 in value. Letters of .administration were taken out in September, 1888, and ■demands amounting to more than $8,000 were allowed 'within two years. These demands being far in excess of the personal estate, the probate court, on August 4, 1890, ordered the administrators to take charge of and rent the real estate. A few days thereafter the administrators presented their petition to that court for an order of sale of the real estate; and on the same day the widow asked that her homestead'therein be set off. The homestead was duly set off January 15,1891, amounting to seventy-seven acres of the1 land. On February 15, 1891, the court ordered the real estate sold, including the remainder in the seventy-seven acres homestead. Different parts of the land was sold at different times, there being nine renewal orders of sale, until all was sold save the remainder in the homestead. The proceeds of sales were applied on claims against the estate. Finally, on due notice given, the administrators made final settlement, which was approved March 6,1899, and they were ordered to distribute the money remaining in their hands to the creditors and take vouchers, when in August, 1902, fourteen years after the beginning of administration, they were discharged. The appointment of an administrator de bonis non is sought for the purpose of now subjecting to sale the estate in remainder of the homestead.

We entertain no doubt of the correctness of the ruling of the trial court. It is now sought to have what may be termed a new administration of the estate to do that which was, without cause or excuse, left undone in the original administration. The estate in remainder in the homestead of the widow was subject to sale during the whole course of the former administration (Keene v. Wyatt, 160 Mo. 1), and it was in fact ordered to be sold. Yet, during a course of fourteen years, with a full knowledge of a deficiency of assets, these creditors permitted the administrators to neglect its sale and stood by, without appeal or protest, when final settlement was made of the estate. They had means of forcing then what they vainly seek to have done how. To permit an order of sale to be made now (which is the ultimate object of this proceeding) should not be allowed. Gunby v. Brown, 86 Mo. 253.

The point has been made that the property now sought to be subjected to the payment of debts was in the former administration — was administered upon — and, in consequence, its liability to disturbance by administration de bonis non was ended and closed with the judgment of final settlement duly rendered and unappealed from. Authorities thought to be applicable have been cited by each party. But in the view we have taken above it is not necessary to pass on that question.

2. It is suggested by the applicants that the recent Laws of 1903, p. 52, entitle them to maintain this proceeding. That law reads as follows:

“If all the executors 'or administrators of an estate die or resign, or their letters be revoked, or after final settlement of an estate is had and the executor or administrator has been discharged, unadministered assets of the estate be discovered after such final discharge and there are unpaid allowed demands against said estate, in cases- not otherwise provided for, letters of administration of the good.s remaining unadministered shall be granted to those to whom administration would have been granted if the original letters had not been obtained; and the administrator shall perform the like duties and incur the like liabilities as the former executors or administrators.”

That statute refers to assets discovered after final settlement.- In this case there were no assets afterwards found. The homestead was administered upon. It wa,s set off to the widow and the remainder was ordered to be sold, as above .set out. There is no reason in calling it an after-discovered asset and no room exists for the application of. the statute.

The judgment is affirmed.

All concur.