81 Mo. 618 | Mo. | 1884
This is an application to the probate and common pleas court of Greene county, Missouri, on the part of J. D. YanBibber, as administrator de bonis non of the estate of Nathan B >on, deceased, who was a creditor of the estate of G. P. Shackleford, deceased, for the sale of the real estate of said Shackleford, for the payment of debts.
The proceedings were had and conducted, under sections 10, 22, 23, 24, 25 and 26, art. 3, of the administration law, 1 Wag. Stat., pp. 94, 96 and 97. The petition was filed December 14th, 1878, by YanBibber, as a creditor, under section 23 of said statute, and charged in substance, that the estate of his intestate, Boon, was a creditor of the estate of said Shackleford, in about the sum of $12,664.86, which had been duly allowed and classed in the 5th class of demands against said estate; that said Shackleford had died; that his personal estate was insufficient to pay his debts, and prayed for the sale of the real estate, or so much thereof (describing the same) as might bo sufficient to pay the same.
Due notice of this petition was given to S. II.'Julian, public administrator of said county, and administrator de bonis non of the estate of said Shackleford who, thereupon, filed his accounts, lists and inventories, as required by statute; of all which due notice was given to all persons intei’ested in said estate; whereupon, T. J. Weaver and the other heirs at law of said Shackleford, appeared in court, and resisted said application, alleging, among other things,
Upon this petition and these objections, as shown by the record, a trial was afterwards had before said court, which resulted in a finding for the plaintiff and a judgment accordingly, ordering the sale of so much real estate as might be sufficient to pay said debt, costs, etc. Prom this judgment the heirs appealed to the circuit court, where the judgment of the probate court was affirmed, from which the defendants have appealed to this court. This case we may remark, in one form or another, has been in this court twice before; the first time in 54 Mo. 518, the second in 66 Mo. 493.
The prior contests have been between the administrator de bonis non of Boon’s estate, and the representatives of his administrator. This contest, however, is between Boon’s said administrator and the heirs of his representative and former administrator.
Prom the agreed statement in the cause, we gather tnat Henslee and Norfleet were the original administrators of the estate of said Shackleford, deceased; that their administration commenced in 1863, and continued until sometime in 1875, when their letters were revoked by the probate court, and said estate, by order of said court, was turned over to said S. H. Julian as administrator be bonis non, who thereupon took and still has charge of said estate. "We, also, gather from said agreed statement and said record, in substance as follows: That some time in the year last aforesaid (1875) the former administrators, Henslee and Norfleet, made with said probate court a final settlement of their said administration of said Shackleford’s estate, showing that there was then remaining in their hands a balance of $4,367.13, in cash; and, also, showing that, thereafter,
The record further shows that the former administrators, Henslee and Norfleet, in the course of their administration, had paid out to the heirs of said estate, about $1,600; and that they had expended some $2,000 in fencing and repairs upon said real estate; that they expended about $824.80 in purchasing in dower rights to the same, and also paid out the further sum of $650 .in purchasing outstanding titles to said real estate. Besides this, they paid out for a trip to Texas, on business of the estate, some $658, and the sum of $585.80 for a similar trip to Arkansas. In addition, they, also, expended considerable sums in paying the taxes due on said real estate; in attorneys’ fees for professional services in and about the litigation, incident to said estate, and other expenditures and costs, incident to said administration; all of which are complained of by the heirs as constituting waste and misapplication by said administrators of the personal estate, for which they and their sureties in their official bond are responsible.
Besides this, the record further shows that when the order of the probate court for the sale of the real estate was first made, the heirs appealed to the circuit court» where said order was reversed and remanded by the circuit court, with direction to the probate court to hear all the evidence, as to any assets, in the hands of said Henslee and
As before remarked, the contest now before us is between a creditor and the heirs of said Shackleford, deceased. It is here claimed' by the latter that the personal estate is the primary fund for the payment of debts, and that the real estate can only be looked to after the personal estate has been so applied and exhausted. They, also, contend, that if the personal estate, by reason of waste or misapplication on the part of the administrator, has become insufficient, resort must first be had to the bond of the administrators and their sureties before the real estate can be looked to.
On the other hand, it is claimed for the creditor : 1st, That under the facts of this case, as disclosed by the record, the heirs are not equitably entitled to be heard to object to the alleged acts of waste and misapplication complained of in this case; 2nd, If they are, they are concluded by the final settlement of said former administrators from here contesting the matter, so long as said settlement remains in force, unappealod from and unset-aside for fraud or otherwise. The evidence in the cause, as disclosed by the record, shows that at the close of the war, it was found that all the fencing around, in and about the farm, had all been destroyed during the war, and by its ravages, and that it was impossible to rent the farm without re-fencing the same and making other necessary repairs; that said fencing and
The propriety and good faith of all these transactions as well as others not necessary to particularize, on the part of said administrators, as well as the equitable right of the heirs to complain of them in this proceeding, were carefully considered and examined by the probate court, at the
In the case of Byrd et al. v. The Governor, 2 Mo. 102, this court held, in substance, that when the deceased in his lifetime had dug and walled a cellar on a lot, and his administrators went on and built a brick house thereon, at a cost of some twelve or thirteen hundred dollars, which lot with the house thereon, was afterwards sold for the payment of debts and its proceeds applied accordingly, and a suit, thereafter, being brought on the administrators’ bond
In that case (Merritt v. Merritt, supra) the administratrix, Mrs. Merritt, had continued the business of her husband, who had leased a furnished hotel for several years, at large annual rental, to be paid in monthly installments. This, she did, without any order from the court, for a little over one year, when she sold out. She paid the rent for which the estate was liable, and by her prudent management and expenditure of the funds and assets of said estate, in the conduct of said business, the estate was benefited several thousand dollars. In the proceeding in that case, it was sought to charge her with the amount of rent, etc., so paid out by her, as for waste and misapplication of the amount so expended, and, among other things, it was held, in effect, that she was fairly entitled to a credit, for the amount
If there was any question of the propriety of this view of the ease, there is another ohjection equally fatal to the claim of the heirs in this case. The alleged waste and misapplication occurred, if at all, prior to the final settlement of said Henslee and Norfleet, and so long as that settlement remains in force, unappealed from and unsetaside for fraud or otherwise, it is in a case like this, conclusive on all persons, the heirs included. Such settlements have the force and effect of general judgments, and cannot be impeached in a collateral proceeding like this. Sheetz v. Kirtley, 62 Mo. 417; Lewis v. Williams, 54 Mo. 200; Jones v. Brinker, 20 Mo. 87; State to use of Tourville v. Roland, 23 Mo. 95; 37 Mo. 300; 47 Mo. 390.
In either view, and in any event, we think the trial court did right in its finding and j udgmeut, and the same is, therefore, affirmed.