Nelson v. Barnett, 123 Mo. 564

123 Mo. 564 | Mo. | 1894

Sherwood, J.

— 1. The final settlement of an administrator stands as firmly on an impregnable basis of conclusiveness as does the judgment of any other court, and can not. be impeached, except on the ground of fraud in the very act of procuring the judgment, or as it is sometimes expressed, in the uconcoction1 ’ of the judgment. McClanahan v. West, 100 Mo. loc. cit. 320, and cases cited; Nichols v. Stevens, ante, p. 96. This has been the uniform ruling in respect of final settlements of probate courts in this state. Jones v. Brinker, 20 Mo. 87; State to use v. Rowland, 23 Mo. 95; Barton v. Barton, 35 Mo. 158; Picot v. Bates, 47 Mo. 390; Oldham v. Trimble, 15 Mo. 225; Woodworth v. Woodworth, 70 Mo. 601; Lewis v. Williams, 54 Mo. 200; Smith v. Sims, 77 Mo. 272; Sheetz v. Kirtley, 62 Mo. 417; Miller v. Major, 67 Mo. 247; State ex rel. v. Gray, 106 Mo. 526, and numerous other cases.

And resort can not be had to a court of equity, to grant a new trial and permit the re-agitation of matters which have already been adjudicated. Murphy v. DeFrance, 101 Mo. 151.

And it is well settled that the procurement of merely illegal allowances or the omission of proper debits in the account presented for a final settlement, will not render such settlement vulnerable to atack in a court of equity on the ground of fraud. Nothing presented by the facts in this case brings it within the operation of the rule heretofore noted.

2. But a judgment of a probate court on a final settlement of an administrator, is, of course, Conclusive only as to matters therein embraced. In order that any matter can be said to have passed in rem judicatam, it must have been tried and adjudicated by the cotirt. 2 Woerner’s American Law of Administration, sec. 506, and cases cited.

And it has been determined in this state that parol evidence may be introduced to shoW- that certain matters as to which the record is silent, were not passed on in a judgment of allowance in a probate court. Sweet v. Maupin, 65 Mo. 65; s. c., 47 Mo. 323.

Like rulings have frequently been made as to judgments of circuit courts. Bell v. Hoagland, 15 Mo. 360; Clemens v. Murphy, 40 Mo. 121; Wright v. Salisbury, 46 Mo. 26; Wells v. Moore, 49 Mo. 229; Spradling v. Conway, 51 Mo. 51. See, also, 1 Freeman on Judgments, secs. 273, 274, and cases cited; Packet Co. v. Sickles, 24 How. 333; s. c., 5 Wall. 580.

In this case it seems there are matters which were not embraced in the final settlement. If this is true, then of course the matters thus non-included, not having been tried and adjudicated are still open for trial and adjudication, and as to them the final settlement constitutes no adjudicatory barrier. See authorities last aforesaid.

3. But in this category will not be included the rents and profits of the land, the widow’s dower not having been assigned, and her quarantine remaining therefore intact. Gentry v. Gentry, 122 Mo. 202, and cases cited. And this is true, notwithstanding such rents and profits were not mentioned in the final settlement made.

As to the materials and carpenter work' costing something like $240, these items were included in the final settlement, and, therefore, can not now be questioned.

But they can not be questioned for a reason equally as valid. The dwelling house on the farm had been swept away by a cyclone, in which the father and head of the family perished. The widow and children were entitled to a shelter while she and her children remained on the farm. Having the right to remain on the farm during the continuance of her quarantine, we regard the comparatively small expenditure used to build a small dwelling house as, under the circumstances, a legitimate one, and properly allowed by the probate court, equally as legitimate as if instead of destroying the house the cyclone had simply taken off the roof, in which case, it would seem that it could scarcely be doubted that the right to repair or renew the roof, would be a reasonable and proper expense, subject to the approval of the probate court.

4. The final' settlement in this case was made in 1885, and the plaintiff attained his majority on the twenty-eighth of September, 1890. Under our rulings the statute of limitations does not run in favor of an administrator on his bond until ten years after his final settlement. State to use v. Pratte, 8 Mo. 286; State to use v. Blackwell, 20 Mo. 97; State to use v. St. Gemme’s Administrator, 31 Mo. 230.

This being the case, if it be clearly madé to appear that certain items, to wit, the proceeds arising from the sale of the stock on hand, were not reported to the probate court, and did not enter into the final settlement of the administratrix, the right of action of plaintiff is not yet barred, nor is he debarred by this proceeding.

For the reasons aforesaid, the decree is affirmed.

All concur.