*1 Ennis, Toller, Appellant, ex v. Clarence E. State rel. Werna Respondent.* April 2, City Appeals. Court Juris-Cyc *Corpus Administrators, 23CJ, References: Executors and sec 3; 424, 1191, 19; p. 24CJ, 423, p. 1317, p. n. section n. section tion 69; 34; 86; p. 2482, p. 1027, n. section section n. section n. 2610, p. n. 31.
Ed. E. Aleshire PhilUps appellant. and V. E. *2 Taylor
Stewart respondent. for FRANK, C.—Action on by administrator’s bond Werna Toller to recover the alleged to be due her as her distributive share of the estate of Howard, By agreement Katie E. deceased. jury a was waived and the cause tried to the court. At the close of plaintiff’s evidence, appellant’s demurrer thereto was sustained judgment rendered for appealed. defendants. Plaintiff Katie E. Howard Missouri, died City, intestate on Feb- ruary 2, 1915, and surviving only plaintiff left her heirs, as her Werna Toller and defendants Mrs. Ennis, Mrs. Freeland and Mrs. daughters all McFarland, of deceased. Letters of administration were granted quali- E. duly Clarence and W. E. McFarland, Ennis who a,s fied 4, 1916, administrators of said and on December ex- ecuted an administrator’s bond in the sum which was $7200 approved by the court. duly published administrators a notice that final
said estate February 18, would be on 1918. On this a final date settlement of said probate- estate was filed in the court a $3747.04 balance of due said This settlement recited that one- estate. fourth of said including $936.76 amount or was due each of the heirs plaintiff. The settlement recited held, also that the administrator an asset of by the estate a note plaintiff executed to decedent prayed the sum of note, $1399.93 and interest was on said authorizing order of the court the administrator to credit said plaintiff. note with the distributive share of the estate due No order on was made this settlement at it was filed. the time April On 25, 1919, following by probate order was made court. day
“On this comes the and the motion of said adminis- July trator coming hearing, filed herein said motion being request authority $936.76, a administrator for to credit said by $3850 due Werna Toller said note executed from estate on the appears said Werna Toller to said Katie E. Howard which there having unpaid $1200, to be due and balance of court heard the evidence in relation be and is motion, to said orders the same ’’ overruled. appealed motion, overruling said from the order July appeal dismissed said circuit court ground overruling probate that the the motion of order of the court appeal administrators was not which an filed the ad- August 1919', the final settlement lie. would On up and considered February 18, was taken ministrators on said settle- following was written court and the :ment prayed. On account with indebtedness as
“Ordered to credit shares approved as annual. pending litigation this settlement “August 23, 1919.” which recited duly of record day
On entered the same an order pending litigation that on account an annual settlement. March Nothing until in the court further was done they what
On administrators, this date the notice of intention No supplemental settlement. denominated mep- given than the notice heretofore settlement was other to file this February, This given which was tioned It $3747.04 from the last settlement. a balance of settlement showed $709.93 Freeland and each paid to Mrs. $600 also showed a credit of *3 part distributive a of their and Mrs. Ennis as to Mrs. McFarland leaving a appeared, bal- Other items of credit shares of said estate. $1521.30 ance estate. of due the and $1399.93 was a balance of settlement recited that there
This inven- which was on Werna Toller’s note unpaid interest due and be credited said note estate, and asked that toried as an asset of the The settlement Werna Toller. with share of said the distributive a asked for paid and estate were further recited that all debts of the following made the probate court final order of distribution. The order on said settlement]: final herein their and files
“Comes administrators has been said estate estate, finds that of said and the court settlement of settlement legal said fully administered, and and that due paid, and the said herein have been given; has been that all costs estate belonging to said hands remaining have in their and the court Thereupon $1521.31. be said administrators and that spread upon the record ordered ad- that said charged and further ordered and credited therewith parties en- the in hands to their pay over said balance ministrators stand receipts to therefor filing proper titled finally discharged.” and court probate in the May 10, 1921, the administrators On McFarland and Mrs. Freeland receipts Ennis, Mrs. of Mrs. the share of distributive their they had each received that credited Toller Werna note of filed the estate. The also administrator estate. of the of share the her distributive with sustaining de- in erred the court Appellant’s that contention rendering judgment fendant’s evidence demurrer defendant. support appellant
In of this contention insists the probate overruling the court of the April 1919', the motion authority to de- requesting plaintiff’s administrator to credit note ceased with the amount of her distributive share of the adjudication paid. had said note been overruling regard probate "We of this do not court the-order finding note motion as a of the court paid. rights had been If in we should hold that the to finally could determined mere motion in the be on a probate court, holding such would in declaration that effect may jurisdiction independent courts suits on entertain of an demands of courts estate in course administration. Probate jurisdiction. have no such
A in note due asset of estate a distributee is an the estate duty of of administrator, charged hands *the who is with the ways. collecting may Such in it. a demand be collected either of two may bring in a independent action thereon having jurisdiction thereof, court of may or he deduct the amount such demand from the heirs’ distributive of the estate share tender to his final on that basis. court may ad- approve act disapprove either or of deducting ministrator in final order of distribution same make aggrieved with findings., party accordance its from which the appeal. A distributee indebted to who is to the estate is not entitled deducting receive his his distributive without first therefrom share principle indebtedness to estate. This law is well stated Leitman, Leitman’s Executor v. 120: Mo.
“In legatee other words the or such cases seeks distributee obtain portion which ad- or the letters fund testator placed ministration have in the hands the executor or adminis- *4 pay legacies shares; trator to debts such and or distributive while legatee by with- estate, or distributee and is himself debtor to the holding payment, against diminishes fund to that extent. And it is the anything conscience that he of the fund without should receive out deducting his already of in therefrom the that fund which is hands as a debtor to the estate.
“In (2 Ed.), his work Law see. the American of Administration lays legatee Woerner down the to be: rule “The indebtedness of a 564r or distributee constitutes assets of the which it is the executor’s creditors, or duty legatees, administrator’s to for collect the benefit of may distributees. Hence such indebtedness deducted any legacy or of distributive share the debtor. . . . where And the recognized, doctrine of retainer is the executor or administrator against retain a legatee distributee, assignee or or the or trans- such, any feree of debt to the deceased, or to the or executor in right his fiduciary character. of set-off The exists
717 legatee to the whether the or was indebted deceased before distributee ’’ death, his or the liability contracted to estate thereafter.
The same in In Excelsior 164 Assignment, rule is announced re 330, Henderson, Mo. l. c. and Trabue v. 180 l. c. Mo.
Appellant’s next contention final the settle- 7, ment 1921, filed the March court on not effective as final because made without settlement notice. purported
The law is well settled that a final settlement made with- out notice does not have the force and effect a final of settlement. Holtcamp, ex rel. v. Mo. S. W. [State 1007.] The facts in gave this ease are that the administrators due notice 18, February that final settlement of said estate would be purported 1918. A final date, Settlement was on that but on pending litigation duly account of order entered approved record an annual settlement. After the pending litigation disposed of, the administrators, on March giving any notice, without other or further made and filed what they supplemental final denominated a settlement the amount naming heir, them, requesting due each plaintiff’s dis- share be note which she tributive credited on the owed the estate. The given; court found that due notice final settlement had been paid fully that all debts of the estate were and that the estate was approved The court then administered. of record said settle- pay ment and further to ordered balance filing their hands to entitled proper re- ceipts finally discharged. therefor to stand
Acting order, the administrators credited with of her the amount distributive share paid estate and money their hands to the other three heirs filed their final receipt therefor.
Respondent contends that February 18, settlement filed on pursuant didy published, to notice was continued from term to term thereafter and no reason other or further notice was necessary. During progress The does so show. record not of the trial counsel stated that the final settlement was continued from term term, to but no such record was offered in evidence. purpose requiring give law in an administrator to notice to give intention make settlement is to interested
opportunity appear, to examine accounts of the administrator steps necessary, and if protect take their interests. February filed on pursuant settlement
only given, that ivas later as an annual August 23, approving The order it annual settlement *5 wvasnotice to it interested that was 'not a final settlement and ;that the court did not so consider’ it. approved, When it per- had an be annual settlement could not there- its function as formed making of a final settlement a basis after used as without notice. and order of distribution supplemental final that the settlement and therefore, hold must, We not made March was effective as of distribution order such, made binding plaintiff as because not without notice. however, plaintiff is not entitled to maintain follow,
It does not formerly made. It was held suit because no final settlement was this necessary pre- an of distribution was a State that order bond, it now well settled requisite on an administrator’s but is to suit paid estate are and the estate is in cases where all debts of the fully nothing except administered, and remains to be done distribute remaining hands of the the balance maintain a suit thereto, entitled heir administrator’s Fidelity v. bond without distribution. and De- [State posit Company, Such S. and cases is the situation W. cited.] all in the case at record shows that debts of the estate have bar. paid; expired filing time for claims has and the estate been administered. We, plaintiff maintain this action therefore, hold that is entitled to although the order of distribution made such, void because without notice. The evidence offered plaintiff was sufficient to warrant the submission the ease to jury sustaining and the court erred in defendant’s demurrer and cause error the must be reversed which herein remanded. might yet published made,
A in which and final settlement proceedings question liability question properly could be determined.
Judgment Williams, reversed and cause G., remanded. concurs. PER foregoing opinion by Frank, C., hereby CURIAM:—The adopted opinion All concur, except of the court. Trimble, J.,P. absent. Joseph Mining St.
William Watson, Appellant, Coal v. Respondent.* Company, City Appeals. April 2, Court