54 Mo. 309 | Mo. | 1873
delivered the opinion of the court.
This case originated in the Probate Court in and for St. Louis county, the controversy growing out of exceptions made to items in the administrator’s account of credits claimed by him in making his final settlement of the estate of his intestate.
It appears from the record, that John Walsh, the deceased, died between four and five o’clock of the afternoon, of the 10th day of August, 1866; that he had a wife and one son,who survived him; that the son died between nine and ten o’clock of the same evening, and that the widow, Johanna Walsh, died on the same evening between ten and eleven o’clock.
It farther appears, that Morrissey, as the administrator of the estate of John Walsh, made two annual settlements of .said estate in the Probate Court, one at the September term, 1867, of said court, and the other on the 21st day of December, 1868.
At the time of the death of said John Walsh, his father, Michael Walsh, who was an old man over seventy years of age and without means, resided with his said son; that the old man, shortly after the death of his son and his family, desired to return to Canada, where he had formerly resided, and, not having the necessary means on which to travel, applied to Morrissey, the administrator of his son, for assistance-; that Morrissey, mistakenly believing, that as the whole family of John were dead, that his father would be and was his sole heir and distributee, concluded to and did advance the old man the sum of two hundred dollars. The old man immediately went to Canada, where he has ever since remained. After this transaction, when Morrissey made his first annual settlement, he presented the receipt of the old man Walsh for the two hundred dollars advanced to him, and claimed a credit for said amount as for so much paid out in the course of his administration of the estate of John Walsh. He was then informed, that, as the child of John Walsh and his wife were both living at the time of his death, the father was not a distributee of the estate, and this account for two hundred dollars was rejected by the Probate Court, and the settlement made without any reference thereto. Shortly after this settle-' ment Morrissey, the administrator of John Walsh, procured his attorney, who was advising and assisting him in reference to his duties as administrator, to make out an account in favor of Michael Walsh (the father of John) for the sum of two hundred dollars for money loaned to his son in his lifetime ; the attorney made out the account, and prepared a proper afiida
Erom this order of distribution made by the Probate Court, Morrissey, the administrator, appealed to the Circuit Court, where the order was set aside and the case remanded to the Probate Court.
On the 17th day of December 1869, the said Morrissey, administrator of John Walsh, deceased, having given due notice for said purpose, appeared in the Probate Court, and exhibited his account for a final settlement of said estate. The distributees of said estate also appeared, and objected to various items of the account exhibited by said administrator, and also filed their objections .to various items before allowed to him in his previous annual settlement of said estate, and the court having fully heard and considered the same, found the balance in favor of the estate and against the administrator, to be one
In the Circuit Court at special term the distributees again appeared, and renewed their objections or exceptions to the various items of the account, which had been presented by the administrator for final settlement.
Among the items of the account objected to was the account or allowance for two hundred dollars in favor of Michael Walsh, which allowance was afterwards set aside by the court as before stated.
The distributees o’f the estate also objected to the following items in the account filed for a final settlement, and which had been allowed to the administrator by the Probate Court in his annual settlements, to-wit:
1st. An account for funeral expenses of Mrs. Walsh and child, who both died after the death of John Walsh, .........$105 00,
2nd. They objected to one-half of an account for fifty dollars for church services at the funeral of Walsh and Ms wife, . ; . . ; 25 00.
3rd. The funeral services and expenses of the child of Walsh that died after the death of its father,............ 63 45.
4th. To an amount over-charged by administrator for his services,...... . . . 9 70.
5th. To a credit of forty dollars, with which the administrator was charged, for the property of widow........... 40 00.
The main contest in the ease seems to have been over the account for two hundred dollars in favor of Michael Walsh. The evidence in reference to that account tends to show, that the account was a mere pretended account gotten up by the administrator to repay himself the two hundred dollars advanced by him to Michael Walsh under the mistaken idea, that
The accounts for the funeral expenses of the widow and child of the deceased were excluded on the ground, that they were properly demands against the estate of the wife of the deceased, as they were contracted after the death of Walsh.
This was a correct exposition of the law, but was technical, as all died and were buried nearly at the same time, but we cannot say the court erred. The Circuit Court certainly erred in charging the administrator with the value of the goods, which were the absolute property of the widow, and had been erroneously inventoried by the administrator, but this error was corrected by the court at general term, so that the administrator was not injured. As to the other items in the account objected to, the record is in such a.confused state, that we are not able to say how the Circuit Court decided them, or whether the exceptions were allowed or not. In fact there is nothing in the record, from which we can see how any of the exceptions were decided by the court, except as we infer it, and being unable to see any substantial error in the record, the judgment will be affirmed.