123 Mo. App. 573 | Mo. Ct. App. | 1907
This proceeding originated in the probate court of Lafayette county on objections filed by two of the heirs of Henry C. Branch, deceased, to the final settlement made by the executrix of the estate. The three objections with which we now are concerned were found against objecjtors in the probate court and a similar conclusion was reached in the circuit court, to which the objectors appealed. Judgment was entered approving the settlement and taxing the costs of the proceeding in the circuit court against the objectors. Prom this judgment the present appeal is prosecuted.
Henry C. Branch died testate at his home in Lafayette county on March 14, 1903, leaving a widow and ten children, all of whom were of legal age at the time of his death. Some of the children, including the two objectors, were the fruit of a former marriage of the decedent, the others were offspring of his union with the wife who survived him, the present executrix.
In his last will, which was duly probated, the testator bequeathed all of his personal property after the payment of his debts therefrom to his wife and directed the executrix “to sell all of my real estate as soon as the same can be done without sacrifice and after paying to my said wife the sum of twenty-five hundred dollars to divide the residue of the proceeds of such sale between my children.” Shortly after his death, his widow, who was nominated executrix in the will was granted
On November 18, 1903, the executrix sold and conveyed the farm to Glover for $50 per acre, amounting to $8,681 for the whole farm. Objectors contend that $60 per acre was the reasonable market value of the farm at that time and their second objection has for its object the holding of the executrix to account for the land at that value.
Shortly before his death, decedent, realizing that he was justly indebted to his son, Glover, for services on the farm, delivered to him, duly signed, the following written promise:
“Lafayette Co., Mo., January 12, 1903.
“I promise to pay my son, C. G. Branch (Glover), a fair compensation for services'rendered me upon the farm time commencing June 17, 1901.”
It appears that Glover presented a demand against the estate for $500 for these services and that all of the heirs, including the objectors, consented to the allowance of that sum, but the objectors say their consent was obtained by the promise of the executrix to charge noth
First, we will consider the second objection. On the issues involved therein, the court at the instance of the objectors gave the following declaration of law:
“The court declares that under the evidence the ex-ceptors are entitled to have the executrix charged with the difference between the price for which she sold the lands of the deceased and whatever greater value the court may believe from the evidence the land would have sold for or was reasonably worth at the time of the sale.”
In view of this declaration, the finding of the court in favor of the executrix on this objection was a finding of the fact, that under the evidence the land had been sold at its reasonable value and at the highest price obtainable. This is conceded by the objectors, but the rule .is invoked “that the trial of objections to items of final settlement of administrators must be had without the intervention of a jury and that in reviewing such causes, the rules applicable to appeals in equitable actions will govern.” [Finley v. Schlueter, 54 Mo. App. 455; In re Meeker’s Estate, 45 Mo. App. 186; In re Tucker’s Estate, 74 Mo. App. 331; In re Schooler’s Estate, 73 Mo. App. 301; Clark v. Bettleheim, 144 Mo. 258.] And we are besought to make our own findings of fact from the'evidence in the record before us as should be done in an equitable action. Counsel for respondent in his presentation of the issue takes appellants’ on their own ground and, as our conclusion coincides with that of the learned
But counsel for the objectors argue that the executrix did not obtain the highest price for which the land could have been sold; that she not only made no effort to find purchasers, but discouraged those who approached her on the subject of purchasing the land by telling them that it was not. for sale, all Avith the end in view of making a sale to her son, Glover, at the lowest market price. We agree Avith counsel that the direction in the will to the executrix to sell the land “as soon as the same can be done without sacrifice” obviously refers to the time Avhen the land could be sold and in nowise lessened the measure of her duty when she decided to offer it for sale to employ the degree of diligence that would have characterized the conduct of a reasonably prudent person in the management of his own affairs. [Hill v. Evans, 114 Mo. App. 715; Merritt v. Merritt, 62 Mo. 150; Booker v. Armstrong, 93 Mo. 49; Powell v. Hurt, 108 Mo. 1. c. 513; Hayes v. Fry, 110 Mo. App. 1. c. 25.]
A real estate agent had a customer for another farm and. approached the owner with an offer. The owner asked, “Where would I go? to which the agent replied, “You buy the Branch place for $60.” That was all of the conversation and the negotiations terminated with it. After this the agent of his own motion took another person, to whom he was trying to make a sale, to the Branch farm and asked him, “What do you think about this place?” To the best of the agent’s recollection, the man said he would give $55 for it. When they returned to town, they chanced to encounter. Mrs. Branch. The agent accosted her with the inquiry, “Mrs. Branch, what is the least money that will buy that farm?” and she answered, “It is not for sale.” The agent admitted on cross-examination he had heard that the farm had been sold to Glover at the time in question, and from his other 'testimony it is evident that the sale had been "consummated. After the sale, one of the objectors, accompanied by her husband, went to see the executrix and in the conversation that ensued the husband said, “I am like my wife, I think you are selling it too cheap if you sell it for $50. I will give you $52.50 and I know of another man that will give you more.” The reply was to the effect that the farm had been sold and the executrix “did not want to sell it twice.”
It will be noticed that neither of these offers was made at a time when Mrs. Branch felt that she was in a position to consider them and, being made with knowledge of the situation on the part of the offerers, their good faith well may be doubted. That the real estate agent should go to the trouble and expense of driving out on what he describes to be a very cold day to show to a prospective customer a farm he had reason to believe had just been sold and which he had not been employed to sell smacks strongly of an act inspired by
Equally as untenable is the first objection. The great weight of the evidence shows that $3.00 per acre was the full rental value of the land for one year. The offer of a larger rental made a month or more after the land had been rented by the same objector, who offered to buy the land at $52.50 after it had been sold, carries no other weight than to deepen our conviction that the objectors from the first were actuated by a purpose to harass the executrix in the discharge of her duty.
The third objection has even less to commend it than the others. Not only does the evidence fully sustain the reasonableness of the charge made by Glover for his services, but the objectors themselves stood by and acquiesced in the allowance of the demand as a judgment against the estate. Even should we think, as we do not, that the judgment is excessive, in the small amount claimed, to permit the objectors, on the reason assigned, to have the excess charged against the executrix would be wholly indefensible under the evidence before us. We find as a fact that the executrix did not agree to waive her compensation and this is all that needs be said on the subject. The judgment is affirmed.