McNally v. Hawkins

163 Mo. App. 692 | Mo. Ct. App. | 1912

ELLISON, J.

Plaintiff is the widow and defendant is the executor of the estate of J. S. McNally, deceased. The executor made final settlement of the estate in the probate court. Luring the same term, on motion of the widow, that court set aside the judgment of approval of the settlement, for the purpose of allowing her to file exceptions thereto. Defendant appealed from that order to the circuit court. In the latter court it was found that the probate court “did not arbitrarily exercise its discretion or abuse the same in setting aside and vacating the final settlement;” and a judgment was there entered setting aside the settlement as the probate court had done. From this judgment of the circuit court defendant appealed to this court.

It appears that the widow desired the settlement set aside so that she might assert and try her right to an allowance of four hundred dollars, as authorized by sections 117, 118, Revised Statutes 1900. Defendant objects to setting aside the approval of the final settlement, on the ground, as alleged, that plaintiff is not entitled to that allowance for various reasons. And a trial of that right, involving the entire merits of the case, has crept into the briefs and arguments of the counsel for either party in this court. Plaintiff, however, has separately insisted that the merits of that controversy are not involved in this appeal. And she likewise separately contends that the judgment of the probate court approving the settlement was a judgment by default, and that there is no appeal from an order setting aside such a judgment, citing Breed v. Hobart, 187 Mo. 140, and the dissenting opinion in Carr v. Dawes, 46 Mo. App. l. c. 600.

In our opinion it is not proper, in ordinary procedure, that we should determine the merits of the controversy at this time. Now will we pass upon the question of the right of appeal, since, if we grant there is such right, appellant must fail.

"We have therefore confined ourselves to an examination of the action of the probate court and we see no reason why that court should not have the power, on application at the same term, to set aside its order of approval of an administrator’s or executor’s final settlement so as to permit exceptions thereto. Of course there could be action of this kind without justification; but we think, with the circuit court, that there was no abuse of judicial discretion in this instance. The result is, that without passing on the merits of the controversy, the plaintiff should .be allowed to file her objections and exceptions to the settlement, when the issues then made can have regular and judicial investigation.

The judgment is affirmed.

All concur.