67 Mo. App. 575 | Mo. Ct. App. | 1896
Lead Opinion
On October 6,1893, a claim for $1,537.39 in favor of Sadie Noe against the estate of John Wick-ham, deceased, was allowed by the probate court of St. Louis. Prior to this allowance the administrator of said estate paid said Sadie Noe, on account of her claim, sums aggregating $354.48, taking her receipt therefor of date September 15,1893. Subsequent to such allowance $350 was paid thereon. As to this payment there is no dispute between the parties. Sadie Noe died December 23, 1893. Administration of her estate was granted plaintiff January 19, 1894. He thereafter applied for a sale of the real estate of defendant’s intestate for the payment of said allowance, less the sum paid thereafter, and other debts. This application was heard in the probate court and denied on the ground that said allowance should be credited by the amount paid before it was made, and that with this deduction the defendant tendered payment in full of what remained, to wit, $932.26. .From this ruling plaintiff appealed to the circuit court, which court affirmed the ruling of the probate court, receiving in evidence for that purpose, over plaintiff’s objection, the receipt of plaintiff’s intestate showing the payment to her of $354.48 on her demand prior to its allowance by the probate court. The circuit court further held that upon payment by defendant of the amount of said allowance, less the payments thereon made before ■ and after
Although some points are made in respondent’s brief as to the statutory sufficiency of the proceedings begun by plaintiff for the sale of the real estate of plaintiff’s intestate, yet in the conclusion of his brief, as well as on oral argument, defendant’s counsel asks for a decision in this court as to the correctness of the ruling of the trial court in subjecting the allowed demand to a credit for the amount paid the claimant anterior to its allowance.- As the decision of this question goes to the merits of the case and may save the parties further litigation and expense, his suggestion will be adopted. The allowance in favor of plaintiff’s intestate was made by the probate court in the orderly exercise of the jurisdiction conferred upon that tribunal by the constitution and laws of this state. Hence it had all the force and conclusiveness of a judgment of a court of general jurisdiction between the same parties. Munday v. Leeper, 120 Mo. 417; Brawford v. Wolfe, 103 Mo. 391. In the language of the statute it was a final determination of the right of the parties in the action. R. ¡3. 1889, sec. 2206. Being unreversed and unappealed from, it was conclusive of the matters adjudicated, except upon an attack for fraud in its procurement. The essential issue when the allowance was made, was the quantum of the demand presented. The judicial act involved in the making of the allowance was the determination of this issue of fact. It resulted in a judgment fixing the amount the claimant was entitled to recover at that date at $1,537.39. This judicial award
Dissenting Opinion
(dissenting). — The fundamental error in the majority opinion is that it treats the amount paid to Miss Noe as an absolute payment on her demand; that is, as a discharge of the debt pro tanto as to the estate, whereas it ought to be treated -merely as an advancement by the defendant administrator in his individual capacity upon an implied agreement on the part of Miss Noe that she would take the necessary steps to have the demand allowed and upon a final settlement of the claim she would allow the amount as a credit thereon. This is the reasonable and legal view as it is conceded in the opinion that the defendant had no
For the reasons stated I must dissent from the conclusion reached by my associates.