31 Mo. App. 170 | Mo. Ct. App. | 1888
delivered the opinion of the court.
In September, 1865, George D. Meriwether made his will, containing among others the following provisions : (1) Appointing his brother-in-law, Henry Y. P. Block, sole executor, and directing him to sell all real and personal estate in the manner, time, and place he may think best. (2) Directing the payment of a legacy of five thousand dollars to his cousin, Elizabeth M. A. Miller. (3) Constituting his son, Walker G., residuary devisee and legatee.
After making the will the testator married his cousin, the legatee Miller, and when he died, in 1874, he left his widow and son as sole legatees and devisees ’ of his estate under the provisions of the will above recited.
The executor named in the will took possession of the estate as such upon the decease of the testator, under letters testamentary, and has been in possession ever since.
On January 29, 1887, the plaintiff, residuary devisee as aforesaid, filed his complaint in the probate court, alleging that the executor was guilty of a violation of his duties, assigning a number of acts of mismanagement on his part, and praying for his removal. The defendant executor answered denying all charges of mismanagement, and stating as an affirmative defence, “that plaintiff and one M. A. E. Meriwether were the only heirs of said estate; that in 1885 the said M. A. E. Meriwether filed in the probate court of Lincoln county a complaint asking for the removal of defendant as executor of said estate, in which the same causes for defendant’s removal were urged as in the complaint of plaintiff in this suit; that-said former complaint was tried in the probate court, and on appeal was re-tried in the Lincoln
On the trial of the cause in the circuit court (on .appeal from an order of the probate court removing the executor), the plaintiff gave evidence tending to show irregularities in the administration of the estate anterior to the trial of the cause of M. A. E. Meriwether against the defendant. These irregularities were of a character which, remaining unexplained, would have furnished ground for the executor’s removal. The plaintiff also gave evidence tending to show that since the institution of the former suit the executor had sold some real estate, part of the estate entrusted to him, for less than its reasonable value. But there was no evidence showing any bad faith on part of the executor in these sales, and it cannot be contended that the acts of the executor in making such sales, standing alone, furnished any ground for his removal.
The plaintiff also gave evidence tending to show the following facts : When Meriwether, the testator, died in 1874, the defendant lived on some lands in Pike .county known as the Aberdeen farm, consisting of about eight hundred acres in cultivation. Of this farm, the estate owned 21-32 parts, and the defendant’s wife the remainder, so that the defendant, by right of his wife, was a tenant in common to the extent of about one undivided third. The defendant continued to occupy this farm until its sale in 1886. He made settlements in the probate court in 1875, 1876, 1877, 1880, and 1885. In neither of these settlements did he charge himself with any rent of the Aberdeen farm. He testified on the' subject as follows: “At the trial of M. A. E. Meri
The defendant also stated: “In the former trial, one cause for my removal, as urged, was that I had failed to account for any rent at all for the Aberdeen farm. The reason why this w'as not done was fully and satisfactorily explained to the judge who tried the ■case.”
It further appeared by the evidence, that the defendant had failed to charge himself with interest on moneys of the estate in his hands at any of the prior settlements, and had also failed to take credit for commissions on disbursements, but that, in his settlement
When the defendant, introducing his evidence, disclosed that he intended to rely in part upon the former adjudication, the counsel for plaintiff made the following admission:
“It is here admitted by the counsel for the complainant that in the trial of the case of M. A. E. Meriwether against the defendant, there was a full and complete investigation of all matters growing out of the administration of said estate by defendant up to the date of said trial, to-wit, in April, 1886 ; that the same causes for removal of defendant as executor of said estate were urged in that case as are now urged in this case, except what has happened in said administration since said trial, and that the judgment in said former case stands unreversed and not appealed from.”
The record before us contains the following recital as to the further progress of the proceedings in this cause: “Thereupon the court held that all matters passed upon in said former trial were res judicata so far as this case is _ concerned, that the complainant in this case and M. A. E. Meriwether were privies, and that all testimony introduced by complainant in regard to the administration of said estate prior to the trial of said former suit, to-wit, in April, 1886, is excluded from this case, and the defendant required and instructed to direct his testimony to matters that have transpired since the trial of said cause. To this the plaintiff objected and at the time excepted.” The defendant thereupon did confine his testimony to such matters only, and the-court, at the close of the hearing, dismissed the complaint.
The main error complained of on this appeal is, that the court erred in holding that the complainant was precluded by the judgment in the former suit from
It seems that the trial court based its ruling on the-view that the complainant and M. A. E. Meriwether were privies. This view was unquestionably erroneous.. The complainant was in no sense the heir, devisee,, legatee, assignee, grantee, or purchaser of M. A. E.. Meriwether. There was no successive relationship of any kind between her and him so as to create a privity of interest or estate in the legal sense of said terms. But an untenable ground assigned for a correct conclusion does not render the conclusion erroneous, and the only question for our consideration is, whether the-conclusion of the court arising upon the admitted facts, is correct.
Judgments and decrees of probate courts having-exclusive jurisdiction of any particular question touching the administration of estates of decedents are mostly in the nature of proceedings in rem,, and as such conclusive against all the world. Where the matter is-exclusively a private litigation the judgment or decree-may have the force only of a judgment at common law in personam, but where it affects the control or management of the entire estate the mile is necessarily otherwise. Wells Res. Jud., secs.. 425, 426; Cecil v. Cecil, 19 Md. 79; Balkum v. Satcher, 51 Ala. 82; Steen v. Bennett, 24 Vt. 303. In the case at bar the question was one which affected the care and custody of the entire estate, and, therefore, necessarily in the nature of a proceeding in rem.
Section forty-three, Revised Statutes, provides r “If any executor * * * become in anywise incapable or unsuitable to execute the trust reposed in him, or fail to discharge his official duties, or waste or mismanage the estate * * * the court, upon complaint, in writing by any person interested * * * shall hear the complaint, and if it finds it just shall revoke the letters granted.”
.Holding these views we must necessarily come to ■"the conclusion that there was no error in so much of the court’s ruling as holds that all matters passed upon in the trial of the case of M. A. E. Meriwether against the defendant could not be inquired into in this proceeding as furnishing ground for the removal of the executor. As an abstract declaration of law this was clearly correct. ■ If matters, transpiring after' the institution of the former suit stood unconnected with the former administration, they would have to be examined and passed ■■rapon with the sole view of determining whether they, in •themselves, furnished sufficient ground for the removal
Under these circumstances we must conclude that ¡¡he court erred in excluding all testimony introduced by complainant in regard to the administration of the estate prior to the trial of the former suit, and that matters transpiring before the institution of the former suit are so intimately blended with matters transpiring thereafter as to properly call for an inquiry into the
That this may be done the judgment of the trial court is reversed and the cause remanded.