147 Mo. 319 | Mo. | 1898
— Appeal from the final settlement of W. Speed Stephens and Lon V. Stephens, administrators of the estate of their father, Joseph L. Stephens, deceased.
The parties complaining are Eannie E. Ladd (the former widow, by second marriage, of Joseph L. Stephens, since remarried to William M. Ladd), William M.Ladd her husband, and Curtis G. Stephens and Joseph L. Stephens, minors, children of the second marriage, by their curator, etc., and the defendants are William Speed Stephens and Lon V. Stephens, children of the first marriage, as administrators of their father’s estate
By his first marrige Joseph L. Stephens had six children,, who survived him, namely, William Speed Stephens, Lon V. Stephens, Mittie N. Stephens (now Mrs. Leonard), Alexander H. Stephens, Rhoda E. Stephens (now Mrs. Johnson), and Maggie B. Stephens (now Mrs. Moore).
In 1878 Joseph L. Stephens married Miss Eannie Jones, by which union there were born Curtis G. and Joseph L., who are still minors.
There was an ante-nuptial contract between Joseph L. Stephens and Miss Eannie Jones, by which it was agreed that instead of dower, she should retain her own property, and if 'she survived him, she should take a child’s share of his property, for life, remainder after her death, to go to the heirs at law of Joseph L. Stephens.
Joseph L. Stephens died on August 11, 1881, and on the fifth of September, 1881, his two sons, defendants herein, were appointed and duly qualified as the administrators of his estate. Within two years thereafter the estate was substantially administered, the debts paid, and nearly all of the prop
1. That Mrs. Ladd claimed one-ninth of the estate absolutely.
2. That when W. Speed Stephens, Lon Y. Stephens and Mittie Leonard, respectively, became of legal age, their father advanced them a large sum of money, unknown, but believed to be more than five thousand dollars each.
3. That their father educated W. Speed Stephens, Lon Y. Stephens, and Mittie Leonard, at an expense of over $3,000 each.
The exceptors asked that the alleged advances be brought into hotchpot,or failing so to do, that these heirs be debarred from any distributive share of the estate; that the court ascertain an amount equal to the sums expended by their father for the education of the three children aforesaid, and allow a similar amount for the education of the minor children of the second marriage; that the court appoint an expert accountant to verify the settlements of the administrators and ascertain whether any error or omission or improper charges or allowances were embodied in the settlements; that a large
The probate court heard the exceptions, and on July 8, 1893, overruled them, and approved the final settlement, and exceptors appealed. After the case reached the circuit court, exceptors (on October 16, 1893), applied for a change of venue, which (on January 30, 1894), was granted, and the-case was sent to the circuit court of Howard county. By consent of parties, and on order of the court, Thomas B. Wright was appointed referee, and the cause continued from term to-term until March 26, 1895, when the referee filed his report.
The referee began the hearing on June 28, 1894, and continued it from time to time, and concluded it on August 20, 1894. Thereafter on September 21, certain other facts were agreed to by stipulation, in which it was also agreed that the case should be finally closed and submitted to the referee. W. Speed Stephens and Lon Y. Stephens, were examined orally at great length, and Mrs. Mittie Leonard’s testimony, as was also that of Mrs. Fannie Ladd, was submitted in writing.
On the thirtieth day of July, 1894, exceptors filed before the referee., thirteen additional exceptions, and on the eighth of November, 1894 (forty-eight days after the case before the referee was finally closed), the exceptors handed the referee fifty-one additional exceptions. No objection-was made by defendants to this loose practice, and the referee-considered and acted on all the exceptions, and on the twenty-sixth of March, 1895, he made his report to the circuit court. He sustained the exceptions numbered 1, 2, 5, 6 and 7, relating to stocks given by J. L. Stephens to W. Speed Stephens,. Lon Y. Stephens and Mittie Leonard, held them to be advancements, and not gifts, required them to be brought into
The exceptors filed thirty-one exceptions to the report of the referee. The circuit court of Howard county, Hon. John A. Hockaday, Judge, presiding, heard the exceptions and overruled them, and entered judgment approving the final settlement; and made final distribution as recommended by the referee. The exceptors filed a motion for new trial, specifying seventeen errors of the circuit court. The motion for new trial being overruled, the* exceptors appealed to this court.
I.
It thus appears that the exceptions originally filed in the probate court only set up three causes of complaint, one,
Of all these exceptions the referee sustained those numbered 1, 2, 5, 6, 7, 9 and 22. Those numbered 1, 2, 5, 6, and 7, related to advancements; that numbered 9 related to two mirrors and one leather back chair which the administrators had bought at the public sale; and that numbered 22 related to the difference in the value of certain stock of the Central National Bank of Boonville, which had been sold by the administrators, of all of which more will hereafter be said.
Exceptions numbered 16, 17, 28, 29, 30, 31, 32, 33, 31, 35, 36 and 11, related to matters with respect to which judgments had been entered by courts of competent jurisdiction, those judgments had been certified to the probate court, and classified by it, and paid, by the administrators and had been approved by that court. It was, therefore, not within the power of the exceptors, the administrators, the probate court, the referee, or the circuit court in this case to inquire into
Exceptions numbered 18 and 38 were abandoned by the exceptors.
Exceptions numbered 10, 11, 21, 25, 26, 27, 31, 37, 40, 40-2-, 49, 52, 53, 56, 59, 62, 64, 66 and 67 will likewise be discarded from further consideration because the exceptors made no attempt whatever to support them. They related to matters which had been allowed by the probate court, and consequently are prima facie right and proper. [Myers v. Myers, 98 Mo. loc. cit. 268.] The exceptors introduced absolutely no evidence whatever to impeach the correctness of these allowances, and the referee properly found that there was no evidence upon which to predicate a claim against the defendants with regard to them.
Thus stripped of matters not here open to review, the case naturally divides itself into three classes; first, advancements; second, commissions; and third, mal-administration.
(a) : Advancements. — It appears that when W. Speed Stephens attained his majority, his father gave him fifty shares of stock of the Central National Bank of Boonville, of the par value of $5,000, but which the books showed was then worth $8,000. He required his son to enter into a written contract with him, in which it was recited that he had given his son the stun of $5,000, ancl that it was upon condition that he should not become surety during his father’s lifetime without his consent, and in consideration of such gift the son so bound himself, and stipulated that if he violated the agreement he should return to his father the sum of $5,000.
On his son Lon Y. Stephens attaining his majority his father gave him also fifty shares of stock in the Central National Bank of Boonville, of the par value of $5,000, but which the books showed at that time was worth $9,200, and required him to enter into a written contract similar to that made by his brother ~W. Speed Stephens.
“Boonville, Mo., Oct. 19, 1880.
“R. Q. Roach, Esq., Pt.,
California, Mo.
“Dear Sir:
“Enclosed please find No. 12, my O. S. in your bank, $10,000. Desiring to make a present or advancement of some of my best property to my daughter, I request that you issue to her brother, W. Speed Stephens, Trustee, for Mittie N. Stephens, $5,000 of my stock, and the balance in new O. S. to myself. Truly, J. L. Stephens.”
On the stub of the bank stock issued to W. Speed Stephens was written in the handwriting of J. L. Stephens the word “advancement, etc.” A similar memorandum, also in his writing, appeared on the stub of the stock issued to Lon V. Stephens, but in neither instance did it appear when the memorandum was made. None of these children signed a receipt for the stock on the stock book.
The father died on the eleventh of August, 1881. Nothing was ever said by any one concerning these so-called advancements until June 22, 1893, ten years after the final settlement had been advertised by the administrators, when, for the first time, Mrs. Ladd and her minor children raised the question as to them. At first it was only claimed that these heirs should bring their advancement into hotchpot, or else be debarred from participation in the distribution of the estate. The heirs contended that they were not advancements, but were gifts which they were not obliged to bring into hotchpot. The probate court so held. The referee, however, construed them to be advancements, and as the heirs had already received nearly the whole of their distributive shares,
An heir has a right to have a judicial determination of the question as to whether money or property received from a parent shall be regarded as a gift or as an advancement. It would be manifestly unjust to debar an heir from participation in a parent’s estate because he failed to bring into hotchpot some insignificant gift, as he regarded it, which might after-wards be treated as an advancement. These heirs concealed nothing from the remaining heirs of the estate concerning this matter. They were guilty of no wrong to their co-heirs in asking a judicial interpretation of whether it was a gift or advancement. The referee held it to be an advancement, and these heirs submitted to that ruling and took no appeal. There is abundant basis upon which the referee might well have found otherwise. The contracts between W. Speed Stephens and Lon Y. Stephens and their father clearly exclude the idea of advancements, and the letter of her father, directing the issuance of $5,000 of his stock to a trustee for LEittie Stephens’ benefit, speaks of it as a “present or advancement.” Clearly the donor did not use the word “advancement” in its legal acceptation; else he would not also have used the word “present,” and it is equally clear that he did not regard the stock given to his sons as an advancement, or he would not have provided that they should return to him $5,000 if they became surety during his life. Still the referee has so found, and the heirs have not excepted. The referee required the heirs to bring in $5,000 each. The exceptors claimed that he should have required them to bring in $23,400, that is, the actual and not the par value of the stock. In Ray v. Loper,
(b): Commissions. — Exceptions numbered 8, 12, 19, 42, 46, 51, 55, 58, 61, 63, 64 and 65, relate to commissions allowed by the probate court to the administrators. All except numbers 8 and 12 are of the group of exceptions which were filed two months after the trial of the case had closed before the referee, and.of these, number 8 refers to a commission of five per cent taken by and allowed to the administrators on the distribution of property amounting to $129,750, under an order of the probate court; and number 12 relates to commissions charged on dividends on one hundred and fifty-five shares of stock of the Central National Bank, which constituted a part of the life estate of Mrs. Ladd. As to the first, it consisted of the stock of the estate in the Central National Bank, amounting on its face to $139,500, but which was of the market value of $292,950, and as this was distrib
Objection is made to amounts charged by the administrators for traveling expenses in the care and preservation of the estate. Such charges are proper, in addition to commissions.
(c) : Mal-administration. — Exceptions 3 and 4 are based upon alleged loans made by J. L. Stephens to. Lon Y. Stephens, his son. Nearly all the items objected to, and there are quite a number of them, were amounts of money given to or expended for Lon Y. Stephens during his minority. Of those subsequent to his majority only.one, dated September 17, 1880, with the word “lent” following, written on the stub of the check book, by some one other than the father or son, is seriously called in question. The testimony shows that Mr. Stephens gave this check to his son as a wedding present. This testimony is absolutely uncontradicted. No further attention need, therefore, be given to these exceptions.
The 13th exception complains of an improper payment of $764.00 to Thomas J. Portis, on the thirty-first of October, 1887. It appeared from the evidence that Mr. Portis had been employed by Mr. Stephens before his death, and his employment continued by the administrators after their father’s death, as an attorney to look after some railroad matters. There was a difference between the administrators and Mr. Portis which was adjusted by the probate court, the money was paid, and the administrators allowed credit for it. The ex-ceptors introduced no evidence whatever impeaching this allowance, and it is, therefore, prima fads correct.
Exceptions numbered 20 and 48 relate to a dividend of fifty-five per cent declared on the stock of the Central National Bank, and set apart as the distributive shares of the exceptors, amounting in the aggregate to $25,575. The administrators collected this dividend from the bank about January 1, 1883. Mrs. Ladd had no trustee, and her minor children no curators. ALterwards Mr. Pigott was appointed her trustee and the probate court ordered the administrators to turn over her life estate therein to him, which the administrators did. They likewise turned over the distributive shares
Exceptions 23 and 24 complained that personal property valued at $216,000 was distributed in kind by the administrators under the order of the probate court, without having commissioners appointed to put a valuation on it. It appears that each distributee received an equal amount of each class ■of stock distributed in kind, and it is not easy to discern wherein the exceptors have been injured. All of them have accepted the division and given acquittances to the administrators.
Exceptions 43, 44, 44J, 45, 50 and 54, refer to the distribution of the stock of the Boonville, St. Louis & Southern Railway Company. This stock was inventoried at $100 per share. It should have been inventoried at $125 per share. It consisted of 1,441 shares, which at $100 a share would amount to $144,100. It was divided in kind, and an equal amount in value distributed to each heir. Some wer,e given 160 shares of the par value of $100, and some 128 shares of the par value of $125 each. All of it was distributed except one share, for which credit was taken by the administrators at their final settlement. It is admitted that the stock was, and is still, wholly worthless. No just cause of complaint can be predicated upon this transaction, and the exceptors show no injury to themselves, and no reason why the prima facie correctness of the transaction in the probate court should now be overcome.
Exception 47 relates to the dividend of surplus made by the Central National Bank. The same conditions present themselves with reference to this as were presented in regard to exceptions 20 and 48. The administrators have accounted for and turned over to Mr. Pigott, trustee for Mrs. Ladd, all of her interest in that matter.
The 60th exception claims that two bonds for $2,000 were sold for $1,800, and that the bank account of the administrators shows they received $1,840 for them. It is true the bank account did show this, but it further shows that the $40 was an error, and was charged back by the bank to the administrators. The $200 difference between the par value of the bonds and what they sold for was properly allowed the administrators as a credit on final settlement, there being no evidence that they were sold for less than their market value.
This disposes of all of the specific objections raised to the final settlement of the administrators, except that it is claimed that some personal property in the room occupied by Miss Mittie Stephens was not inventoried. The testimony clearly shows that all of the property belonging to her father’s estate had been removed from her room before the appraisers came to the house to appraise the property, and that there was nothing in her room except what belonged to her. Further, it is claimed that some personal property in a certain chest was taken away by some of the heirs. This chest is shown to have contained nothing except wearing apparel of deceased members of the family that had no market value. Other objections were raised as to other insignificant matters, but they were not sustained by any evidence in the case. After making all of these specific objections, the exceptors in the paper handed to the referee after the close of the trial, wound up in this manner: “Appellants ask the court to examine in open court and under oath, both of these administrators, touching these matters, and their various acts of mal-administration.
It thus appears that the referee was not asked to take any steps with respect to these glittering generalities. When the case reached the circuit court, the exceptors did not ask the court to enforce the prayer of their petition, no steps were taken to cause the administrators to come into court and be examined again, nor were they required to make any disclosure of any matters thus vaguely alluded to. The circuit court was not given any information upon which to base any judgment that there were any bonds which had not been brought into the administration, nor was it supplied with any testimony or suggestion that there was anything else that the exceptors desired to be heard about. The cause proceeded to final judgment with the-, record an absolute blank with respect to these general charges and indefinite requests.
Now, however, in this court, page after page of printed matter has been filed, making serious and grave charges against the integrity of the administrators. It is so mixed with personalities, abuse and vituperation that it is impossible to determine whether the exceptors intend to charge the administrators with having misappropriated $133,000 or $333,000.
Stripped of the personalities, vituperation and abuse
J. L. Stephens....... 67 bonds
Central National Bank. 66 bonds
Central National Bank. 144 bonds
Central National Bank. 50 bonds
J. M. Nelson......... 8 bonds
H. Bunce............ 5 bonds
¥m. Hanley......... 5 bonds
C. W. & J. Sombart... 7 bonds
T. J. Portis.......... 2 bonds
T. J. Portis......... 13 bonds
M. E. Pierce......... 8 bonds
H. Dormitzer & Bunge 5 bonds
O. R. Cage.......... 5 bonds
H .M. Bellamy....... 5 bonds
L. V. Stephens....... . 3 bonds
Speed Stephens....... 3 bonds
Draffen & Williams. .. 2 bonds
Total 400 bonds
It is apparent that the bonds were distributed among the stockholders of the Boonville, St. Louis & Southern Railway Co., in the proportion of their stock holdings in the railroad corporation. This left the original stockholders the bondholders of the railroad company, and J. L. Stephens the owner of nearly the entire stock of the company. Exceptors can not understand how Mr. Stephens would exchange $200,000 of bonds for $200,000 of stock. The reason is plain. By this arrangement he would retain his share of the bonds, and when the bonds are paid would be the owner, substantially, of both roads. On the 11th of August, 1881, J. L. Stephens suddenly died. The administrators scheduled the stock and the $67,000 in bonds, and distributed them in kind, among the heirs, the exceptors getting their proper share, and the Central National Bank distributed the bonds so acquired by it, as dividends. The heirs of J. L. Stephens being owners of stock in the Central National Bank, shared in these dividends of this stock by the bank, and thp exceptors have received some $40,000 to $45,000 as dividends by the bank in these same bonds.
Yet without a shadow of testimony, without any attempt to deny the receipt of their distributive share under the order of the probate court, while retaining the dividends received from the bank in the shape of this identical stock, after enjoying “the fruits of the tree” for over ten years without a word of complaint, and after all the evidence in the case was-closed, and the judgment was rendered in the circuit court,, and the case appealed, these exceptors, through their attorneys now assert in language personal and extremely intemperate, that the administrators have misappropriated $133,-000 and possibly $333,000 of these bonds. The only foundation for such serious charges is that the bonds were delivered