78 Mo. App. 651 | Mo. Ct. App. | 1899
Plaintiffs had claims allowed against the estate of Eritz Dickmeyer, deceased, which were placed in the fifth class of demands; they appeared in the probate court of Lincoln county on the first annual settlement of Young the administrator, and asked for an order of distribution to the creditors, which they obtained; the administrator appealed to the circuit court; in the circuit court defendant moved to dismiss on the ground, first, “because the settlement was not a final one,” and, second, “because the circuit court had no jurisdiction until after final settlement should be made;” this motion was sustained and the cause was dismissed at the cost of plaintiff. From this judgment plaintiffs duly appealed.
The facts as developed by the record are briefly stated as follows: Dickmeyer at tbe time of his demise owned personal property of the value of $1,034.26 and one hundred and twenty acres of real estate, the latter was encumbered by a deed of trust; after Dickmeyer’s death, to wit, on July 21, 1897, it was sold under the deed of trust by the trustee for $4,725; after paying the debt secured by the trust deed $1,767.36 remained in the hands of the trustee, which he paid over to Young, the administrator. Dickmeyer resided on this land with his family at the time of his death; he left some minor children, and Young had been appointed guardian of these, and on his motion the probate court, prior to the sale under deed of trust, had had a portion of the land set apart to the minors as a homestead. In his first annual settlement Young had charged himself with the whole amount of the personal property, $1,034.26, and took credit for the sum of $967.22, leaving a balance in his hands of $66.54. In the settlement he rendered no account of the $1,767.36. On this showing plaintiffs filed a petition asking
