Baker v. Lumpee

91 Mo. App. 560, 1902 Mo. App. LEXIS 312

• Court: Missouri Court of Appeals
• Decided: January 20, 1902
• Status: Published

Opinion

BROADDUS, J.

— At the May term, 1899, of the probate court of Morgan county, the defendant as the executor of the will of John Lumpee made final settlement of the estate of his testator at which time it was found that there was in his hands as such executor the sum of $2,780.80. The distributees were six in number of which the plaintiff was one. After approving the final settlement the court made an order of distribution to each on'e of said distributees for $463.34.

On the twenty-ninth day of December, 1899, on the application of the plaintiff, the said court issued an execution against the defendant executor, for her share under said order of distribution. At the February term of said court for 1900, the defendant moved the court to quash said execution and assigned among other grounds, that the order of distribution aforesaid was void; and that the distributees were not notified of the proceeding. This motion was overruled by the probate court, from which action of the court, the defendant appealed to the circuit court when his motion was again overruled, from which judgment of the circuit court he has appealed to this court.

Much has been said by the respondent about the conclusiveness of the final judgments of probate courts, which no one is prepared to dispute, provided the courts in which these judgments are rendered were acting within the rules of their jurisdiction. There is no doubt but what the court in the case under consideration had jurisdiction of the subject-matter, but it is denied by the appellant, and we think justly, that it did not have jurisdiction of the parties. It appears from the record that none of the distributees had notice of the intended order of distribution, and the defendant who was not only the executor but also a distributee had no knowledge that the order had been made until the execution in question had been issued. In a recent decision of the Supreme Court,

* it was held that an order of distribution made under similar circumstances was coram non jndice. Judge GaNtt who delivered the opinion of the court said “our statute has most wisely provided a course of procedure to relieve administrators and executors of the risk they incurred at common law, by distributing the personal estate before all debts were paid, and has with great particularly prescribed for the distribution of estates. . . . By section 242, Revised Statutes 1889, it is directed that each person entitled to distribution or partition, not applying therefor, shall he notified in writing, of such application ten days before any such order shall be made.” and he then proceeds to quote from section 243 (now 244) that “the order of distribution made by the court upon such notice shall settle the claims of the distributees,” and again the opinion reads: “In tbe absence of notice to these distributees, the judgment of the probate court would be clearly coram non judice as to them.” Nothing can be clearer than that the holding of the court is that orders of distribution made without notice as provided by the statute are void. It follows, therefore, that the order of distribution made in this case without notice to the distributees is void and that the motion of the defendants to quash the execution should have been sustained. It seems from the record that the order of distribution was perhaps not made in pursuance of the will of the deceased.

It would be well enough for the probate court, in making a new order, as it will be compelled to do if the distributees demand it, to be guided by the directions of the will. Reversed with directions to quash the execution.

All concur.

Presumably, Lilly v. Menke, 126 Mo. 190, l. c. 220. — Reporter.