RoBards v. Lamb
89 Mo. 303
Mo.
1886
Check Treatment
Black, J.

is an appeal from a judgment of the Hannibal court of common pleas sustaining a demurrer to the petition. The' suit is in equity and the petition discloses the following facts : In 1872 John B. Helm died at Hannibal, Missouri, leaving a will and eight codicils. In one of the codicils John L. RoBards *309and Joseph J. Johnson were appointed executors. The will was admitted to probate, but the codicils were rejected by the probate court; the widow of the testator was appointed administratrix with the will annexed. Certain of the devisees and legatees instituted a suit to contest the will as probated, and sought to have the same and the codicils established. Pending this suit, and on the thirteenth of August, 1872, the probate court revoked the letters of administration granted to the widow and appointed the defendant in this suit administrator pendente lite. On the sixth of May, 1874, the controversy over the will terminated in a judgment establishing the will and six of the codicils, including the one appointing RoBards and Johnson executors. Thereupon letters testamentary were issued to them and they qualified by giving bond, etc.

Afterwards, and on the nineteenth of May, 1874, the defendant, as administrator pendente lite, filed his settlement in the probate court, which settlement disclosed a balance of assets in his hands of $56,136.39, consisting of a few hundred dollars in money, bonds, notes and the like. On the same day the probate court made an order reciting the fact that the will and codicils had been established, and also stating that the administrator had filed his settlement disclosing the above balance in his hands, and ordered the same to be turned over to the executors nominated by the will, and that he should be discharged upon filing their receipt therefor ; and on the same day he filed in that court their receipt acknowledging the delivery to them of “all the moneys, bonds, notes, coupons and other evidences of debt,” as shown and disclosed by the settlement, and thereupon and on the same day the court made an order discharging the administrator pendente lite. Prom this order Mr. RoBards, one of the executors, prosecuted an unsuccessful appeal, the history of which is set out in the petition and will be found in RoBards v. Lamb, 76 Mo. *310192. One of the executors resigned in 1878, and Mr. RoBards, the other one, made final settlement of the estate in 1883. After this settlement, the plaintiff, who. is the wife of RoBards, and one of the residuary legatees, commenced this suit. Besid'es the facts before stated, it is alleged that the defendant kept and retained commissions to which he was not entitled, to the amount of over two thousand dollars, and that the plaintiff has acquired by assignment from the other residuary legatees, their right to have and recover from defendant these excessive commissions.

There can be no doubt but the order' of the probate court, approving the settlement made by the administrator pending the will suit, and discharging him upon filing the receipt of the executors, is a judgment and must be treated as a judgment of a court having full and complete jurisdiction of the subject matter. When the case-of RoBards, Ex'r, v. Lamb, was here, it was distinctly held that as the executors received and receipted for the money and property ordered to be turned over to them, and thereby accepted the fruits of the judgment in their own favor, they could not prosecute an appeal from the judgment which they had thus satisfied. The plaintiff seeks to avoid the force of that adjudication and the binding force of the judgment approving the settlement- and discharging the administrator by showing, and the fact is admitted, that the administrator gave no notice of his intention to make the settlement, and because of which it is claimed the judgment is void as to the plaintiff. This presents the inquiry whether any notice was required to be given. All executors and administrators are required to make annual settlements, the details of which are defined by law. Sections 16 to 19, chapter 124, General Statutes, which are the same as sections 238 to 241, Revised Statutes, 1879, provide, that if any administrator wish to make, final settlement he shall give notice-of his intention, so to do for four weeks, by publication,. *311etc., and the court must find that such notice had been given. His accounts are then stated, allowances made for insolvent assets, and uncollected notes, accounts, etc., may, be sold. It is clear the final settlement here contemplated is that to be made at the end of the administration of the estate. There is, then, no representative of the estate with whom he makes the settlement save the creditors and distributees themselves, and hence the notice that all may be brought before the court. The defendant was appointed by virtue of section 13, chapter 120, G-eneral Statutes, being sec. 14, R. S., which says : “If the validity of a will be contested, or the executor be a minor, * * * letters of administration shall be granted during the time of such contest to some other person, * * * who shall take charge of the property and administer the same according to law, .under the direction of the court, and account for and pay and deliver all the money and property of the estate to the executor or regular administrator, when qualified to act.” As was said in Lamb, Adm'r, v. Helm, Adm'x, 56 Mo. 433: “Such special administrators occupy more nearly the position of a receiver, who acts under the direction of the court, than they do the position of a general administrator.” The special administrator is appointed for temporary purposes only (Hawkins v. Cunningham, 67 Mo. 415), and when the contest as to the will is over and the nominated executor qualified, his functions are at an end, and he must settle his accounts and turn over the property in his hands to the regular executor or administrator. This accounting is his final accounting, it is true, but it is not a final settlement of the estate contemtemplated'when notice is required to be given. There is no need of any notice, for there is then a regular representative of the estate with whom the settlement is made under the direction of the probate court. The statute which provides for notice on final settlements, therefore, *312has no application to settlements made by an administrator pendente Hie, and notice is not required.

As to section 47, chapter 120, which provides that if any administrator die, resign, or his letters be revoked, he or his legal representatives, shall account to the successor, etc., it is sufficient to say the section has no application to this case, for here, the special administrator neither resigned, nor were his letters revoked, but his powers ceased by operation of law and the express terms of the appointment. We do not intimate that in these cases notice of the settlement must be given, though when an administr ator desires to resign, notice of his intention to make application to that end must be given.

It follows that the judgment of the probate court discharging the special administrator is final and conclusive, even' as against the plaintiff:, for there is no saving clause as to minors or married women. The petition does not seek relief on the ground of fraud.

The judgment in this case is, therefore, affirmed.

All concur.