*1 physical A depending person disabled. attainments of the laboring totally unfit man ailment which an illiterate would render lawyer practicing prevent might a to earn a livelihood earning chances away from him other profession, his or take determining the Therefore, living in some other avocation. mental both the must consider liability case, in such a the courts assured, such a bene- otherwise capabilities of the physical and the ’’ a snare. fit' certificate would be delusion capabilities of physical If both the mental and we consider escape from con- condition, we see no plaintiff, present in his open him at this is is for which he fitted clusion that no vocation trial. as at the condition remains the same time, his complains given by the instruction The defendant argument is to the same effect plaintiff. on behalf there jury, submitted to the because have been should not case provisions recites the it. The instruction support was no evidence permanent requires a relating' disability, total and policy age under policy, payment premium, finding issuance of the disabling is still disabled plaintiff; that he sixty; accident of an performing thereby prevented from totally permanently engaging any work occupation or following any or work the words of profit; and then defines or wages, remuneration citations, supra. This substantially as defined disability clause, approved. hereby is the evidence supported instruction against this instruction is that does urged objection Another fact, by defendant, plaintiff, in claimed the defense contain negative work. This is but a performing his and was not disabled jury question presented to the and is the same statement given by in defendant’s behalf. instructions presented fully ably tried, the evidence was well This case jury the evidence under supported verdict and the All concur. is affirmed. law. The Carlin, Deceased; Effie J. Bacon, Adminis of Lena re Estate Respond Exceptor, DeArmond, Appellant, v. H. V. tratrix, S. W. ent. 47 213. City Appeals.

Kansas Court of *2 Irwin & Bushman for appellant.

Ira H. Lohman and Haley respondent. Sam S. for BOYER, proceeding C. This exceptions arose re- spondent appellant to the settlement of as administratrix of the probate judge estate of Lena Carlin. disqualified and cer- Statutes under section Revised case to the circuit titled the fifty- directed to objections final settlement were to the 'for which items -of disbursement specified one objections All said overruled denied had claimed credit. distribution, aggregat- and items $210, paid out except an item of together administratrix,- with the attorneys ing $1250, paid exceptions bill of her for the of a disbursed cost The adminis- appealed in an case. printing abstract and briefs allowed credit charged with sums and was tratrix was these present proceeding and for the estate. and other services to making final settlement finding based circuit From duly appealed and did pro- will be therefore, upon limited inquiry, administratrix, and a judgment rendered priety *3 following. by the record the pertinent of facts disclosed statement April 21, 1924, administra- and letters of Lena Carlin died intestate 1924; appellant, April 24, said let- Bacon, to Effie J. tion were issued a request sisters, brother, children of upon a and ters issued of Publication of of kin known the time. the nearest at brother, deceased days proceeded. and the administration was made within ten letters .personalty the value of inventory appraisement showed of and was $13,500. of Inheritance tax $4516.29, the value and real estate of collection of continued in the paid, and the assessed administratrix request known by written of the payment of demands assets and repaired from the real which time possession of she heirs took com- could, rents when she which were to and rented and collected time process continued until in her account as administratrix. This mingled year upon elapsed, the eve of final settlement than one more DeArmond, herein, appeared and the and distribution one May' administra- 4, 1925, filed suit in the circuit court on a petition in said the collateral heirs of Lena Carlin. The trix and all alleged adopted only heir law that DeArmond was the son suit all of Carlin and the owner of entitled of the the said Lena sought seized, of which she died and a was to that property employed sep- counsel filed her effect. The administratrix upon alleged raised an issue facts answer which decisive arate petition. appear It does not that other defendant to that prolonged filed answer thereto. The contest was hot and suit in a which found and decreed the deceased resulted that adoption; into an oral contract and her husband had entered performed, DeArmond was in fact said contract had adopted the deceased who died intestate without is- son of heir body,' and that he was sole and entitled to 'siie of her settlement, remaining- for distribution of her estate whole administration. lawful claims the costs of payment after Supreme where the appealed to Court administratrix Bacon, 16 S. W. affirmed. was [Carlin in- pendency of this the administratrix had

During the paid attorneys’ fees in total for services $1250 curred and expenses estate, and for all other services to the also therein and of which her in the appeal, were disallowed to incident to judgment now under review. paid,

In reference to different items $250 contains that one item of was allowed record evidence paid November final settlement probate court and paid attorneys sum in two each to two of shows this items attorneys also The record shows that administratrix. in the De- claim services rendered administratrix $600; probate judge the sum of certified Armond case for April paid and this claim that the sum was allowed day. Later, 29, 1928, the on same October attorneys the further sum paid to her law was motion or claim filed for same suit. There there no order of allowance for this sum made this allowance and au- probate had been allowed and court. One item stenographer exceptions for the bill of to be the court thorized Supreme Court. The remainder appeal administratrix without allowance. On March the administratrix made distribution of among money col- was derived seven collateral heirs. This did‘not know rent She states she lection of real estate. judge it; who what do with asked the told that she *4 money belonged give and to it to them. There the heirs to any partial claim for distribution. that there was order is.no

Opinion. assigned by appellant, and The to will be limited errors the interest propriety of in far as it so Hine, v. exceptor questioned. of will not be [Turner to will not heard respondent cross-appeal There no trial alleged attention of the complain called to the errors not by proper to this court motion for a trial and new law. a suit at equally equity and to applies The to an action rule cases Gallemore, cited.] 41 S. W. [Waters judg pertain propriety only questions before us The surcharged the settlement court in far as it ment the trial so distributed; $850 with the items expenses appeal, fees, how final áceount should be stated. The administratrix claimed credit settlement for partial advancements or distribution in the sum of each to seven named payments distributees. These were made to the collat eral 28, 1925, period year heirs March and within a of one after any issuance of letters without order of for distribution obligation at a time when the administratrix was under to dis period tribute assets. proof expired. The had debts compelled The administratrix could not have been at that time to refunding make distribution in the absence of a bond from dis tributees. Such bond could be waived the risk of the administra upon distribution, trix but when such waiver is made it is at party waiving risk of it. R. S. Yerbal di [Sec. judge court, any given, rection from the if such was justify would be of no avail to The distribution. sought

could have and no doubt obtained an of court for order partial timely distribution and such order in the absence of a judgment. Bell, [Peper would have become a final 226 W. Such S. order was not obtained and the administratrix required made distribution at own or hazard. She was not compelled any legal to make at the time and did so without au thority. fact that administratrix was not aware of claim on behalf of protect does not her. The assets were legally, owner, her hands as trustee the lawful if she could motion, supposed owners, on her own distribute a of the assets to Appellant she could have distributed of them. contends reference to this item that all col paid, debts had the estate lected, duty and that it distribute administratrix to light an con with or without order of court. of the facts the fully ad tention is without foundation. not been ministered; arrived, for final settlement had not and it time duty could not her to distribute and no distributee at that time authority compelled by appel have distribution. The relied Sinks, apply. point, lant on this Clarke v. Mo. l. c. does Under the circumstances in this case the true of the estate owner charge was entitled to receive it the trustee who had of it remedies, any, against should not be remitted to his the distributees. right the circuit court this item was against appellant. point is ruled denying trial court erred in its

But the learned credit attorney fees and incident to the administratrix instituted DeArmond. The claim involved in the *5 personal. estate, owner of the entire both and suit was that of sole real a party, as such was made summons was served The administratrix duty defend, appears in bound to upon her, and she was and that only party possessed who did defend. She in fact the she was

627 personal of a estate which had to her administratrix descended owner; and which she held as trustee for the she ivas neces sary party [Eisiminger Stanton, l. App. to the suit. v. 129 Mo. personal c. She no interest in estate claimed none the It as an individual. was to the benefit and to the interest of the estate that ownership the true thereof be determined. Under the clearly circumstances revealed record duty would have been derelict in her not she had defended claim of apparent stranger, an knew, so far as she who based his agreement claim to entire upon estate an oral made Respondent deceased. suggests position of the administra neutral, trix should have been insists the defense of only suggestion belonged title to real the heirs. Such and insistence are influence the circumstances of the without under estate, merely ease at bar. The law suit involve did title to real personalty title but to the as well was then in the adminis which justified defending She in court of last tratrix. said suit resort at the estate. This is evident as revealed in developed progress the facts of the trial and as revealed required to petition. DeArmond’s She should not be defend evidence, suggestion personal expense. There is nor a her own no evidence, attorneys, faith or of when of bad good ordinary prud an administrator faith and the exercise of action, employs legal an and the at ence to defend such counsel good care, skill, torneys faith with reasonablé the benefit duty, then law the matter is for perform such whole and reasonable care result of the estate. Good faith Welch, Admr., App. 172 Mo. [Dooley v. test. is the ; Scudder 243 ; Ames, l. c. Greenwood 535, l. c. J., 644 ; p. C. sec. Zausch, App. to' 1929, requires an administrator Statutes 94, Revised Section brought 221, Revised against him, and section all actions defend of administrators settlements 1929, provides Statutes and serv charges all reasonable fees allow court shall show the record to appears Furthermore, sufficient from ices. $850, which were disallowed in the allowed presented hearing exceptions, had allowance, $250 on pursuance court and probate allowances April Thes.e November They judgments. final timely appeal became absence of which an of administration allowed appeal was no R. S. There lie. [Sec. would exceptions settle until objection murmur no why allow reason 9, 1929. We see ment given named should not two items court of ance *6 628 Calhoun, judgment.

the full ex rel. v. force and effect of a [State Walsh, 189 ; App. 482, 486, Mo. 279 W. l. State ex rel. v. S. c. App. However, claims event said judgment, proper charges incurred reduced to services not deceased, arising by in course of but reason adjusted allowed at administration could and should be settlement, request, necessity of upon proper final without the previous are referred to allowance. Such claims not demands require presentation the statute which- formal sworn statement just that all credits and setoffs the correctness of demand and Attorneys’ given. of administration have fees are and, reasonable, legally be if need not exhibited as other demands 427 ; Thompson v. Lutz, App. 175 Mo. must be allowed. [Crow Thompson, 217 S. W. l. c. There is no contention probate court was excessive and amount of fees allowed quite evidence shows that the reasonable. amount litiga- was entitled to defend It follows that the administratrix pay attorneys therefor, she and to tion at the of the estate necessary ex- for all and incidental would also be entitled to credit required prosecution of defense. penses be incurred in the exceptions and procurement of a bill of This would include the clearly printing bills briefs. We are for record and of the assets the estate properly payable items out these administratrix should every equitable consideration the and from have credit for them. judgment of the circuit court finds

The settlement, Appellant $425.62. hand, on shown as n makes finding. addition, the administratrix complaint of this illegally disbursed. She charged $210 with should be paid given in her final settlement for sum of should be credit incidental together sum of as attorneys’ fees, with the denied litigation. The of the circuit court expenses of credit but allowed a for fees the sum credit of one item excep in the trial to the estate services making settlement of for services the settlement and tions to should This estate, for other services. allowed should further be given effect and the administratrix com be a reasonable amount to court finds would sum the whatever ad An attorneys incident for services pensate her legal allowance for a reasonable is entitled to ministrator settlement, allowance and such his final defense rendered in such is successful eminently the administrator' proper where n Meeker, 186 ; v. Union App. 45 Mo. Loud re Estate [In defense. Jacobs, 615 ; Jacobs 313 Mo. l. c. Co., Trust affirmed judgment should be otherwise indicated. are errors accordingly. and the account stated result of of the circuit court was that hand for had on distribution the sum of $1822.32 from which should be $14.80, leaving cost in the which was balance *7 ordered exceptor. result of our conclusions question the various items is that last from the named sum there should be deducted of the De- defense litigation, Armond suit rea- and whatever may sonable the court allow the administratrix for cost, appeal.- payment in this The remainder after other judg- if any, Accordingly, should distributed to the owner. be part, part, the cause ment should affirmed reversed remanded with direction to the trial court enter a expressed certify conformity with the views herein same to the C., Campbell, so probate court. The Commissioner recommends. concurs. adopted opinion C., foregoing

PER CURIAM: The Boyer, part, re- of the court. affirmed as the with the trial remanded direction to part, versed cause ex- with views therein court to in accordance enter pressed. All concur. Camp Sovereign

Roy Woodmen Appellant, Daly, E. Respondent. (2d) 229. S. W. World, Appeals. City Court Kansas