26 Mo. 483 | Mo. | 1858
delivered the opinion of the court.
There seems to be a departure from correct principles in the management of this suit. This is to be attributed to the action of the probate court in permitting the same individual to represent interests hostile to each other. The record offered in evidence shows that Adolph Kehr — as administrator of Jacob Müller, who was administrator of Catherine Muller — voluntarily appeared in court, and made a settlement of his account as such administrator, he (the said Adolph Kehr) being also the administrator of Catherine Muller. Adolph Kehr, as administrator of Catherine Muller, could not settle an account with the same Adolph Kehr, as administrator of Jacob Muller. As the claims of the two estates were antagonistic they should have been represented by different persons. As this dilemma was produced by the taking upon himself the administration of two estates the interests of which were conflicting, Kehr should have resigned one of those administrations when this conflict of interest appeared. Fair dealing required such a course, and it was necessary to preserve the proceedings from suspicion. If any error had been committed in such a proceeding to the prejudice of Jacob Müller’s estate, who was there to protect it by an appeal? The administrator was interested by way of commissions in making the settlement. There is no other mode of treating such irregularities than by regarding the proceedings in which they occur as nullities. This is in accordance with the principle of Caldwell v. Lockridge, 9 Mo. 358, which maintains that, where a proceeding was had in the county court under such circumstances that a party affected by it had no opportunity of appealing, the proceeding would be regarded as a nullity.
The case does not involve the question whether in this state an action can be brought against an heir on the bond of his ancestor before the administration is settled and the debts are paid. It is averred in the petition that the administration on the estate of Finche was closed; from which we infer there was no other debt than this, as there was no point made in relation to it in the court below.
The judgment is reversed and the cause remanded;