*1 been main guard. guard had hand, the other cattle cattle On " cattle, horses, prevent required statute, sufficient to tained the in mules, getting on the railroad” and all other animals in another di their course of the animals would have steered stinct negligence comply statute Since the failure to with the rection. negligent of the cattle per se, question is, maintenance was the guard defendant proximate cause of the not whether injury, anticipated injuries whiсh occurred. In particular have should duty statutory important is whether the absence to determine a reasonably prudent the likeli anticipated or a would not injuries or failure act. hood from certain course of conduct inquiry goes question whether not the But as to defend determining negligent. important is ant not whether It directly defendant’s of commission act or omission resulted in injuries complained of. Appellant assignment its errors states erred refusing give declaration law numbered “two” offered defendant. abstract record shows that two declarations of law they offered were refused, defendant are not numbered. appears The one which second in order in the abstract record was nature demurrer to the evidence. Furthermore, this as- signment is points of error not mentioned in the and authorities, the argument. brief, assignment or the has therefore been aban- doned. v. Wilkes, 936; 288 S. W. [Mason O’Howell v. Miller, 11 (2d) S. W. 1068; Burton Maupin, v. 83; S. W. Wood v. Con- solidated School Dist., (2d) 1018; S. W. v. Novosel Mid-West Life Ins. 276 S. Co., W. 87.] should be affirmed. This commissioner so recom- C.,
mends. Boyer, concurs. PER foregoing CURIAM:—The opinion by Barnett, C., adopt- ed the court. The JJ., affirmed. Bland and Arnold,, concur; Trimble, J., P. absent. In Matter John C. Harr, Administrator, of Harr & Harr, Re Appellants. Veva
spondent, Harr Hawkins et al., City Appeals. Kansas Court of November
? *2 Llewellyn respondent. & Brown for Montgomery
Charles Hiller appellants. and T. L. County BOYER, C. This Clark case arose in the Probate Court of exceptions on Harr, Adminis- to the final settlement filed John C. trator of the partnership estate of Harr & Harr. The was composed of Harr, Elizabeth Harr J. and P. M. her son. It was formed early shortly prior time, in the for the limited purpose buying feeding livestock. P. M. Harr died testate 31, December 1922, county, Missouri; a resident of Clark mother, his co-partner, February died 8, 1923, intestate resident Van county, Burén Iowa. respondent herein,
John C. Harr, county, a resident of Clark Missouri, appointed her administrator the district county, Iowa, day February Van Buren 21st аppointed the same John C. Harr was partner administrator of the & ship estate Harr Harr the Probate Court of Clark County, day Missouri, 1923, duly on the 2nd of March, qualified, and notice granting letters of administration duly published April, March and John C. Harr was not a member partnership. ap and one Hawkins, intermarried with now Harr, Veva appointed Harr, M. and was F. herein, was the widow of
pellants County, of Clark Probate Court his estate executrix of She acting such executrix. is still qualified and Missouri. She her late husband elected provisions of the will of renounced 14, 1927, letters adminis the law. On November under to take ancillary Daggs as T. J. granted to one tration were county, J. Missouri. Elizabeth Harr the estate of & estate Harr Harr, C. John he in which settlement November Harr, filed final among following items, which were the for various claimed credit year 1927: claimed disbursements paid By Daggs, Admr., T. Anc. Nov. 16. J. amount of L. J. Dec’d established debt surviving partner by partnership ......$2390.34 due By Daggs, Admr., etc., Nov. 16. amt. T. J. in- Aug. 12, terest on above debt *3 6%
1924..................................... 466.50 By 16. Harr, Admr., Nov. Jno. C. amt. on 3% per Mo., R. disbursements as Sec. S.
1919..................................... 90.72 receipts charges This settlement shows the of total amount to be $4162.84, claimed, $3114.66, total credits and a balance on hand of $1048.18. day On the same the settlement Veva filed, H. Haw kins, Harr, of F. M. objections executrix the estate filed to the objections demand for credit of the above items and based her on grounds: these “1. Because said never at any demands were time allowed requires. said еstate as the law
“2. Because said demands were never to the adminis- year trator of said estate within from one date granting the of the letters administration in said estate and has never been allowed in said and by are barred the one Statute of Limitations, Sections and 186, Revised Statutes “3. Because said placed demands were by in said settlement the act and fraudulent conduct the administrator of said estate authority and without law. application
“4. on Bеcause an by allowance said demand the administrator, John C. August was at the term of the Court, 1927, Circuit Clark County, Missouri, tried and determined by appeal on and court, adversely decided petitioner petition and his your dismissed and objectors say the adjudicata action said res and these demands and items objected herein to have place said settlement. That said ad- were parties rights and conclusive is final and judication sub- having jurisdiction by a court fully therein determined is es- thereto, and parties ject-matter and his settlement.” demands in putting these topped from rec- appear appellants do not objections of the other The objectors are all by parties agreed although it was ord, were allowed and F. M. Ilarr estate creditors same. objections and to dismiss his motion filed The administrator set said motion grounds for and as final settlement approve his following: forth the credi- heirs nor parties аs neither proper Objectors are not “1. & Harr estate. Ilarr tors its face to claim contested show's on payment of the The “2. made an advancement J. Harr estate of repayment L. surviving partnership. partner by L. J. Harr the partner also made repayment advancement “3. The of an law of specifically authorized partnership is survivor to formality and presentment allowance, Missouri without of Limitations. the Statute such not barred ‘‘ part- parties all debts due 4. The records show that third ’’ is solvent. nership on its face that it paid, estate show's were arrayed matter came being made, issue parties thus hearing court, the conclusion of before the objections struck said settlement sustained out of said court $466.50, $85.70 $2390.34 item of the item only $5.02. sum of item, commission and allowed commission further the hands court then found the amount ap- $3990.72, sum distribution be the court. From this find- proved said as so amended settlement *4 Harr, partnership C. ing probate court, order of the John and duly County Court Clark administrator, appealed to the of Circuit change awarded, a of venue was and the case application and on his County, Adair where trial was had. to the Court of sent Circuit in the the action of said court, conclusion of trial circuit At the by what is called in is indicated the record decree. findings of fact contains certain and the effect “decree” to that & Harr and is estate of Harr w'as solvent and all partnership that parties paid, leaving the same have third been claims duo partners legal between the former for distribution a balance their $2390.34 item for which representatives; that the adminis- objectors which excepted, money credit to w'as and ad- trator asked partnership Elizabeth capital Harr, J. vanced as and the provided capital agreement said that so advanced partnership should only profits divided reрaid between the partners; her and be money repay said that there estate sufficient remained distribution; that the for capital advancement a balance and to leave advance- capital L. J. entitled have said Harr is said necessary demand her; it that repaid to and is not ment that formal and al- partnership should and distribu- repayment court, but that said lowed may made in settlement and distribution tion final The court further found that the administrator estate. $90.72 as commis- entitled allowance of item of claimed the item of claimed sion, $466.50 and was not entitled allowance of The court further found due the advancement. interest judgment finding, amount the balance due based on its rendered accordingly balance and further distribution be- ordered representatives legal Harr, of F. M. Harr Elizabeth J. tween and County. certified the Probate Court and said objectors duly appealed judgment. said this court parties From stipulation case, evidence in the ‘‘ appears among things, other that there no record on the records Missouri, filing Court County, Probate of Clark of either the or the allowance the demand for said $2390.34 $466.50 estate;” objectors all that are creditors of F. M. Harr es- in process tate still of administration, their de- mands have been allowed. The evidence shows Lizzie J. Harr owned lands in Clark county, Missouri, occupied by which were her son, F. M. in the Harr, prior or shortly to that yеar they agreement entered into an nature of a limited ship buying purpose feeding for the cattle, and in which said enterprise they profits. pursuance were to share the In agree- of this early ment, February, 1922, paid $2301.78 Lizzie J. Harr purchased cattle partnership, and also freight $88.56 being thereon, $2390.34. a total of This was an advancement for the benefit of repaid was to before any di- profits vision funds parties. between the At the partners decease оf both the cattle were still on hand, passed possession of John C. the partnership estate, and were charged inventoried him and reports the sum value of $2650. The partnership estate is solvent and more has than sufficient assets with which to all in- demands, cluding the claim for the advancement the partnership. passing upon court in the final settlement did not make an distribution, merely order found the balance due the estate ac- cording of said court. On June 18, 1927, John C. *5 рresented application an Hass probate for an court order pro tunc, respecting nunc the allowance of the advancement item. probate Appellants allowed opposed proceeding. here said The court application appeal court dis- and on order the its circuit application, allowed became final.
Opinion. Appellants proceeding application contend fоr that pro adjuclicata against nunc tuna order is res claim of the ad- ministrator in case in this for the credit demanded. The facts record do not appellants point. bear the contention out on this probate The matter submitted proceeding in was that court merely question as whether pro jus- order nunc tunc an was tified presented under the facts ques- and circumstances it. The tion of the allowance to the administrator the item now claimed by him passed upon by not to or in court that proceeding argument and it is evident too for proceeding nothing has to do with this case. principal assignment is allowing that the trial court erred in representing credit the item advancement, because said claim or demand prop- had never been exhibited er court allowance and never classification had been allowed probate and is court barred limitation. question disposing which we have to answer of this case an this. Has administrator of a estate, who partnership, power pay, a member allow and he en- payment titled advancement made to for the of an credit having partners said demand by one of the without formally within the time presented and allowed against estates demands prescribed law the allowance of way. Has put another question process of administration? Or rights powers a sur- case the same this pay effеcts, to upon partnership viving partner, administers who partnership? with citation furnished us Counsel in their briefs have not question considered or authority in which has been ease or appellate have found no case in which our courts decided, and we Appellants applicable passed upon rely it. statutes particular and in Sections administration of estates 91, well as Revised Statutes Sections 1919, applicable 186, inclusive, and Section Revised Statutes final settlements the allowance and classification of demands and generally, support in the administration of estates the contention presented, demand in this ease should have been and al- lowed within one after the commencement before the administration, administrator would be authorized Respondent same take therefor. admits credit that there
12 presentation any partnership administrator claim to the settle- any
or to the bеfore final court allowance at time ment, and the adminis- position states his words: “That these right every repay trator ad- partnership of this to estate had any up vancement made and this at time surviving partner, to without including partnership and the final settlement necessity payment presentment claim any formal of the part surviving partner his or her estate.” of the right appellants
We think under are contention that case, stranger partnership ap the facts in this is where a to the pointed qualifies thereof, and all demands shall as administrator proper be exhibited for al to administrator and to required by law, lowance un the time classification within less said demands and allowed the administrator is are so exhibited pay not entitled them or credit therefor. It be borne to take must surviving in mind partner this is a case where a is admin not istering, nor a is case where the executor or administrator a it partner charge рartnership deceased takes effects. and administers A stranger partnership to the this case.
Section 88, provides alia, in all Revised Statutes inter “That surviving partner cases partnership where administers effects, power, he shall have if he knows the assets discharge partnership debts, pay sufficient to all the off de- against requiring mands without the same exhibited such court, for allowance and such shall allow partner in settlements, may credits, all demands which he thus discharge, justness shall it be satisfied with the of the demands.” provision grant power particular individual, is a sur- to a a viving partner who administers. It is evident that the lawmakers right power upon any person never confer such intended to other power or that such surviving partner should be from a transmitted any person, may other who of partnership become administrator express implied effects. Where there is mention there is exclusion. Expressio unius applies еst exclusio alterius. This maxim interpretation contrary plain meaning other would be to the Sweaney, statute. ex inf. v. Mo. [State 692.] provides: Section of the same statute further “And in all cases where the' partner executor or administrator of the deceased takes charge partnership effects, such demands shall be exhibited proper classification, they court for allowance shall manner, then be in the same shall and the court have the same jurisdiction of demands thus has in ordinary estates cases administration.” We see thus that power granted partner a administers off who demands is partner a denied deceased expressly who This is evidence further partnership estate. administers granted power render exclusive legislative intent to partner of a deceased If administrator. pass administers, who power partner of a succeed to adjudicate partnership estate, tiffin practically claims outside stronger much reasons no third *7 power. such succeed to should provides that, pre- “All demands
Section 89 of the same statute against partnership effects, or ex- or demands sented allowance exhibition pointed in the manner out the hibited allowance against be partners, shall the estates of deceased surviving partner, filing by within one of the bond after partner, for or administrator of the deceased executor оr partnership shall be barred effects, or forever ship 91 statute, effects same administered.” And section general applicable made in these law administration is words: upon partnership “The effects, administration whether sur- viving partner partner, or executor administrator of the deceased or respects ordinary in shall all conform to cases, administrations in except provided; person administering as otherwise herein and the upon еffects, partnership and his bond, securities his official shall perform governed the same duties, functions and the same lim- subject itations, provisions, restrictions the same penalties, to actions, liabilities as other administrators and their sureties.” provisions The above have, effect, incorporated in in the partnership fifty scheme administration of years, estates for changes all thereto, adjudicated amendments as well upon cases phases diffеrent administration, tendency had recognize similarity to in partnership administration estates ordinary cases, respects in in except to the administration all where a partner commenting is the administrator. In this section of statute, was then 1899; Judge Section Revised Statutes Barclay in App. Stanley, case Barnes v. 95 Mo. ob- : serves (R).
“Under S. 1899), partner section the administration of 67 ship ordinary estates assimilated administration in cases ex provided particular cоncerning in the cept enactments those es surviving tates. It seems us where the partner, those en titled to administer individual part the deceased charge decline ner, take estate, proceed may appoint eligible some other discharge trust, analogy following furnished the law of adminis in ordinary cases.” tration of a contention disposing of the made This observation was ad- suit as party appointment of challenged who party, there ground еstate, on the
ministrator of anyone place appointment of authority of law for the individ- of an executor the administrator surviving partner, save partner’s estate. ual jurisdiction giving statute history Missouri An instructive evolution partnership estates probate courts over Woerner, American be found statute-will sections of said various tendency pre 129. The (3 Ed.), section of Administration Law surviving partner and authority of a power and limit the scribe large degree рartnership administration to assimilate to a apparent. ordinary is made cases administration Denny Turner, upon the case of Respondent and relies cites partners surviving ad promise In case the App. Mo. statu stay the was held sufficient to ministering, a demand allowance a creditor obtain the tory limitation so as enable presented within them, who succeeded survivmgy. period years, the removal limited two after *8 57, l. c. ob opinion, in court partnеrs, and the course : serves ‘grant from accession
“By dating of administration’ of giving by administrator, of bond and not the executor or statutory pro- among all survivor, harmony establish a we adjudications to which would other- above referred visions subject, from this follows, wise be unattainable. It of treatment promises' properly rested of plaintiff, having that surviving partners long partnership fund was their dis- so as the at only within two posal, present was bound claim allowance yeаrs grant after the administration the defendant partnership effects.” only
The conclusion case is reasonable drawn from this that partnership estate, it and demands holds that the claims partner, must be administered other than a ordinary cases, in and allowed as and within the of time re- limit quired by Respondent authorities, law. cites other cases none any way apply specific question in of which in hand. agreed instant case, appointed In the that C. Harr was Jоhn partnership, administrator of the which he a member, was not day March, 1923, duly qualified; on the 2nd the records County, Missouri, the Probate Court of contain no record filing or allowance of demand for an advancement partnership by Elizabeth J. one the partners, her administrator; an administrator of her estate was ap- The evi- 1927. 14, pointed in until November the State of Missouri 16, shows dence that on November J. Harr the Elizabeth the administrator of thereon, as a debt prinсipal $2390.34 $466.50
sum interest surviving partner due a administrator of and that the filed his final settlement ship estate claims credit for these items November adopted by statutory
In view of the method this State for the observed, partnership estates, clearly administration of as above it is that the administrator of the estate in this case evident right authority probate such items, had no right rejecting upon appeal court was them. The circuit court correctly rejected сlaimed, the item of allowed the ad- interest but principal ministrator credit for the sum of the advancement in the doing $2390.34, judge sum of so we think the learned trial clearly in error. The only administrator claimed as commission three per apparently claiming on disbursements, though cent he were act- ing as partner-administrator, fact this administrator when would per entitled to receive full of five commission cent he had claimed it. rejection
The commission, of said itеm of so claimed the ad- ministrator, by wrong court and the allowance there- Browning the circuit 1919; was correct. R. S. [Sec. Richardson, 186 Mo. 361.] only question disposes circuit court not merely right of appeal, issue on said which was the adminis- settlement, for the items in his final but trator claimed credit legal rep- distribution of the estate between further ordered a portion of F. M. Harr and Elizabeth J. ITarr. resentatives jurisdiction. judgment an excess of its the circuit court was merely ruled distribution, order made administrator, claimed passed upon the items of credit *9 appeal fol- same, found the amount due estate. denied only disposition appeal matter for lowed passed upon by probate court, same matter adjustment 1919; 287, 289, final settlement. R. S. that is [Secs. 620; Leahy Campbell, Mo. v. Mo. Branson, Branson 356.] disposes assignments, There are other the conclusion reached unnecessary. and renders their consideration From the the cаse foregoing, follows should be reversed and the adjust remanded with circuit court to the final ease direction to the with settlement of the in accordance views ex- opinion certify pressed same the Probate Court of Barnett, C., con- County. recommends. The Commissioner so curs. hereby opinion C., foregoing
PER CURIAM:—The Boyer, is reversed and adopted opinion as the court. with the proceed accordance remanded with direction to the case P. Trimble, J., All absent. opinion. except concur, Telegraph Edgar Co., J. Respondent, Union Ward, v. Western Appellant. City Appeals. Kansas November Court Zeigel Murrell <&Murrell and Boland A. respondent. Fred, S. F. appellant. Hudson and Frederick Whitten for Qumbiner Winger, Feeder, & Barker, Hazard of Counsel. ARNOLD, telegraph J. This is an action sender of mes- sage provided by recover the penalty Section Revised Stat- $300, utes and is amount of based failure of message promptly. defendant deliver the transmit and