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fraudulent design or purpose on the part of is carried over and can be excepted to on final the defendant, to convey or assign his prop settlement. erty or effects, for the purpose of hindering 4. EXECUTORS AND ADMINISTRATORS 495(6) or delaying creditors. It is true that fraud

-ADMINISTRATOR NOT ENTITLED TO COMMISmust be shown, but this may be shown by SION ON DISTRIBUTVE SHARE NOT ACCEPTED facts and circumstances from which the jury BY DISTRIBUTEE. may reasonably infer a fraudulent intent or An administrator was not entitled under purpose. There was sufficient testimony to Rev. St. 1909, $ 229, to a commission for dissubmit this case to the jury upon the theory tributing a share of an estate under order of the stated in this instruction. It is true this tes. probate court, where the distributee refused to timony is disputed by the appellant, but that accept it, although such share was set aside was a question for the consideration of the under instructions of the probate court and de

posited in a place of safe-keeping, and was, subjury.

sequent to the death of the administrator, acWe think the instructions, taken as а

cepted by the distributee. whole, are in proper form. Therefore the commissioner recommends that the judgment

Appeal from St. Louis Circuit Court; Vital of the trial court be affirmed.

W. Garesche, Judge.

"Not to be officially published.” PER CURIAM. The foregoing opinion of NIPPER, O., is adopted as the opinion of the In the matter of the estate of Charles G. court.

Peper, deceased. From a judgment in favor The judgment of the circuit court is ac of Christian P. Bell, administrator de bonis cordingly affirmed.

non of Frederick C. Peper, deceased, on ex

ceptions to a settlement made by Carrie REYNOLDS, P. J., and ALLEN and BECK. Miller Peper, as executrix of Charles G. ER, JJ., concur.

Peper, the latter appeals. Affirmed.

J. D. Johnson and Loomis C. Johnson, both of St. Louis, for appellant.

George B. Webster, of St. Louis, for rePEPER v. BELL. (No. 15803.) spondent.

(St. Louis Court of Appeals. Missouri. Feb. 3, 1920. Rehearing Denied Feb. 24, 1920.)

BIGGS, C. As there is no controversy be

tween counsel as to the facts, we adopt ap1. EXECUTORS AND ADMINISTRATORS 315(6) pellant's statement.

-ORDER OF DISTRIBUTION CONCLUSIVE IN This cause originated in the probate court ABSENCE OF APPEAL AS TO DISTRIBUTEE'S of the city of St. Louis, and arose out of SHARES, BUT NOT AS TO ADMINISTRATOR'S that court sustaining exceptions to the setCOMMISSIONS; "FINAL JUDGMENT."

tlement made by Carrie Miller Peper, as An order of distribution made under Rev. executrix of Charles G. Peper, deceased, who St. 1909, $ 246, becomes final as to the rights at the time of his death was administrator of the distributees to their respective shares of the estate of Frederick C. Peper, deceased, when no appeal is taken therefrom under section 289, in view of section 251, but where such with Christian P. Bell, as administrator de an order, in addition to making distribution, bonis non of said last-mentioned estate, up to went further and allowed an administrator 5 the date of Charles G. Peper's death. The per cent. commission on the amounts to be dis- probate court sustained the exceptions to tributed, the order was not a final judgment as said settlement, and surcharged the Charles to such commission, since by section 229 the G. Peper estate with the amount of commisquestion of compensation of an administrator sions which had been previously allowed is adjudicated at the time settlement is made. to said Charles G. Peper by said St. Louis

[Ed. Note. For other definitions, see Words probate court in the settlement he made durand Phrases, First and Second Series, Final ing his lifetime as administrator of the said Decree or Judgment.]

Frederick C. Peper estate. 2. EXECUTORS AND ADMINISTRATORS 510(2) Carrie M. Peper, as said executrix of the -No APPEAL LIES FROM ANNUAL SETTLE- Charles G. Peper estate, appealed from said

judgment of the probate court to the St. No appeal lies from an annual settlement Louis circuit court. The latter court tried of an executor, but only from a final settlement, the case de novo, principally on an agreed under Rev. St. 1909, $ 289.

statement of facts, and rendered a judgment 3. EXECUTORS AND ADMINISTRATORS C501– in favor of said Christian P. Bell, as ad

ALLOWANCE OF COMMISSIONS TO ADMINIS- ministrator de bonis non of the estate of TRATOR ON ANNUAL ACCOUNTING NOT FINAL. said Frederick C. Peper, and against Carrie

Allowance to an administrator on an annual | Miller Peper, executrix of the said estate of settlement of credits for commissions

Charles G. Peper, deceased, and the American final adjudication as to the right of the admin- Surety Company of New York, as surety on istrator to such credits, and such an allowance the appeal bond, in the sum of $3,481.24,

MENT OF EXECUTOR.

not a

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

as

(218 S.W.) from which judgment Carrie M. Peper, as , petition, and made an order redudng the executrix, appealed in due course to this bond to said sum of $20,000. court.

With respect to the depositing of said seThe particular facts bearing on the ques- curities and cash, the agreed statement of tions raised for decision by this court are facts in the case contains this admission: the following:

“Thereafter, under instructions of the judge The St. Louis probate court, at its June of the probate court of the city of St. Louis, term, 1915, which was more than one year the said distributive share of said Caroline J. after the publication of notice of the grant Peper was set aside and deposited in a place of letters of administration to said Charles of safe-keeping under the joint custody and G. Peper, and after all claims and demands control of said Charles G. Peper, as adminishad been allowed against said administration trator, and the American Surety Company of estate and paid, made an order therein di- New York, as surety on his bond, and so rerecting said administrator to make partial mained until the day of his (Charles G. Peper's)

death." distribution to the heirs of said Frederick O. Peper the aggregate sum of $241,485.21

The record does not disclose just when of the personal assets belonging to said estate, consisting of shares of stock in certain Charles G. Peper died; but his executrix, corporations and cash. Under that order the Carrie M. Peper, filed her settlement as such share of Caroline J. Peper, a sister and heir executrix in the St. Louis probate court at at law of said Frederick O. Peper, consisted the September term, 1916, thereof, with of specified shares of stock aggregating the Christian P. Bell as administrator de bonis actual value of $57,298.75 and $53.99 in cash, time of the death of said Chas. G. Peper, in

non of Frederick C. Peper's estate up to the or a total of $57,352.74. In the same order the court expressly al- which settlement she charged her testator,

administrator of said Frederick C. lowed to the administrator, and authorized

Peper's estate, with the said balance of him to pay himself, out of the personal assets remaining in his hands, compensation $93,587.03, as shown by his third semianas administrator, 5 per cent. commissions nual settlement made and approved by and on the sum distributed by said order, which at the December term, 1915, of said court. allowance totaled the sum of $12,074.26, and Christian P. Bell, as administrator de bonis included commissions on said distributive non of said Frederick C. Peper's estate, filed share of said Caroline J. Peper.

exceptions to that settlement, alleging that All of the heirs excepting said Caroline the said Charles G. Peper, as administrator

of the Frederick C. Peper estate, was not J. Peper accepted their shares under said entitled to the commission of 5 per cent. on order. At the December term, 1915, of pro said distributive share of Caroline J. Peper, bate court Charles G. Peper filed his third nor to some other commissions he had taken semiannual settlement as administrator of credit for, because he had not "actually dissaid Frederick C. Peper estate, which settle tributed" the assets. Said exceptions were ment was duly approved by the court, and the sustained by the probate court, and the ap administrator took credit therein for the pellant here was ordered by that court to entire $241,485.21 ordered to be distributed surcharge her settlement account accordingly. as aforesaid, which included said share of

In addition to the foregoing facts, all of Caroline J. Peper, and also took credit for which were developed at the trial in the the $12,074.26 commissions, in accordance St. Louis circuit court, it is admitted by the with said order of distribution, which left agreed statement of facts that after Christian in the administrator's hands other personal P. Bell was appointed administrator de bonis assets of the estate of the total inventoried non of Frederick C. Peper's estate, in place value of $93,587.03.

of Charles G. Peper, deceased, he "reduced On the same day the third semiannual to his possession the aforesaid distributive settlement was filed and approved by the share of the said Caroline J. Peper, without probate court said administrator also filed giving any receipt therefor to Carrie Miller a petition in that court, verified by affidavit, Peper, executrix” of Charles G. Peper, and showing to the court that said Caroline J. retained custody of the same until February Peper had been tendered, but had refused to 28, 1917, when he delivered said securities accept and receipt for, her said distributive to Caroline J. Peper, who receipted to him share of the estate, that the administrator for the same. had arranged to place the securities and cash The agreed statement of facts further proconstituting said share “in a safe deposit box vides “that, if the court finds as a matter subject to the joint control of the American of law that the account of Carrie Miller Surety Company of New York and himself Peper, executrix of the estate of Charles G. until said Caroline J. Peper accepts and re- Peper, deceased administrator of the estate ceipts for same," and praying the court to re- of F. C. Peper, deceased, should be surcharge duce his administrator's bond from $400,000, ed, as contended for by the respondent, that the amount of the same at that time, to the amount for which the said Carrie Miller $20,000. The probate court sustained the Peper, executrix of the estate of Charles G.

Peper, deceased administrator of the estate inafter referred to such matter does not of F. C. Peper, deceased, is liable, is the become finally adjudicated until after final commission on the distributive share of Car- settlement unappealed from. oline J. Peper, amounting to $2,866.63, and [2] And by the construction given by our an additional sum of $614.61, the same being courts to section 289 an appeal does not lie commissions for which Charles G. Peper took from an annual settlement of an executor, but credit" in said third semiannual settlement. only from a final settlement. An annual set

It does not appear specifically whether tlement has none of the attributes of a final Christian P. Bell has charged or will charge judgment and is not conclusive on any one. the Frederick C. Peper estate 5 per cent. Picot v. O'Fallon, 35 Mo. 29, 86 Am. Dec. 134; commissions on said distributive share of Car- Baker v. Schoeneman, 41 Mo. 391; State, oline J. Peper, to wit, $57,352.74, as afore- to Use, v. Hoster, 61 Mo. 544; In re Davis, said; but, if Charles G. Peper was not enti- 62 Mo. 450; North v. Priest, 81 Mo. 561; In tled to said commissions, then Christian P. re Annual Settlement of Barnes, 43 Mo. App. Bell, his successor and administrator de 295. bonis non of the Frederick C. Peper estate, The judgment of partial distribution was was or is entitled to the same. Therefore conclusive only as to such matters that were practically the only question or controversy necessarily involved in the application for here is: Which one of the two administrators the order and came within the purview of is entitled to said commissions?

section 246 of the statute, which authorized The foregoing facts present two questions: the order. 2 Black on Judgments (20 Ed.) (1) Whether that part of the order of partial | $8 611-617; Fish v. Lightner et al., 44 Mo. distribution made by the probate court at 268; Baumhoff v. Railroad, 205 Mo. loc. cit. the June term, 1915, allowing Charles G. 264, 104 S. W. 5, 120 Am. St. Rep. 745; North Peper the 5 per cent. commission on the dis St. Louis Gym. Society v. Hagerman, 232 Mo. tributive share of Caroline J. Peper, was 693, 135 S. W. 42; Sparhawk v. Buell's a final judgment on such question; if so, that Adm'r, 9 Vt. 41. would settle the matter, inasmuch as it is [3] It appears that the administrator, admitted there was no appeal taken from Charles G. Peper, at the December term, said order and judgment; and (2) under the 1915, filed a settlement in the estate and facts heretofore stated, was Charles G. Peper, took credit for the commissions referred to, as a matter of law, entitled to the commis but this did not adjudicate finally his right sions on the share of Caroline J. Peper, he to the commissions, as it was an annual setnot having actually distributed the fund to tlement, and could not be appealed from. her, because of the fact that she refused to

The commissions may, and frequently are, receive it?

allowed at the time of making annual settle[1] I. As to the effect of the order of par ment, but, as was said by this court in Re tial distribution made at the June term, 1915: Annual Settlement of Barnes, supra, an apThis order was based on section 246, R. S. peal taken from such allowance in an an1909, which provides that on a showing that nual settlement would be premature. Such there is sufficient money to satisfy all de matter of allowance is carried over and can mands against the estate the court shall be excepted to on final settlement. order the payment of legacies and the dis

It follows that the right of Charles G. tribution of shares. By virtue of section Peper to the commissions in controversy was 289 of the statutes an appeal. could be taken not finally adjudicated by the order of par. from the order of partiaļ distribution made tlal distribution made at the June term, by authority of section 246. An appeal not 1915. having been perfected within the time re [4] II. On the second proposition involved quired by law, the order became a final judg- as to the right of Charles G. Peper's estate ment as to the rights of the distributees to to have the 5 per cent. commission on the their respective shares, Section 251, R. S. distributive share of Caroline J. Peper, we 1909; I'reeland v. Wilson, 18 Mo. 380; Pound must rule against appellant, and this by v. Cassity, 166 Mo. 419, 66 S. W. 273.

reason of the construction placed on section However, in addition to making the par- 229 of the statutes by this court in Estate of tial distribution, the order in this case went Garrison, 77 Mo. App. 333, and in Re Peters, further and allowed the administrator 5 per 128 Mo. App. 666, loc. cit. 672, 107 S. W. 406. cent. commission on the amounts to be dis- This distributive share under the facts was tributed. As to the effect and scope of this never actually disbursed and paid out by part of the order, we do not think the order Charles G. Peper to the distributee, Caroline was a final judgment as to such matter, as J. Peper. True, the share was ordered paid it was not the time or place to settle the to her by the order of partial distribution of matter of the compensation of the adminis. June term, 1915, and it may be conceded trator. By section 229 of the statutes the for argument's sake that the effect of this question of the compensation of the adminis- order was to place the equitable title to such trator is adjudicated at the time a settle share in Caroline J. Peper, and for which ment is made, and under the decisions here she could have maintained a suit direct

THAT IT WAS A REPORT AVOIDS THE RELEASE.

BECOVERY APPROVED.

(218 8.W.) against the executor or upon his bond upon the execution of such instrument shall be adrefusal to pay, as contended by appellant; judged confessed unless the adverse party destill the share was not actually paid to her pies execution by answer or replication verified by the executor, because she refused to ac by affidavit, does not require verification of decept it, and until it was in fact actually paid claimed to have been induced by fraud in order

nial or reply, where execution is admitted or he was not entitled to charge a commission that the defense of fraud may be interposed. thereon.

Under the admitted facts this distributive 2. RELEASE Ow17(2)-INDUCING IGNORANT EMshare of Caroline J. Peper was set aside un

PLOYÉ TO SIGN RELEASE ON REPRESENTATION der the instructions of the probate court and deposited in a place of safe-keeping un Injured employé's release, discharging emder the control and custody of the executor, ployer from liability procured by defendant's Charles G. Peper, and the surety on his claim agent by leading employé, who was unbond, and remained there until after his able to read and to whom release was not read,

to believe that he was signing merely a report death. This did not amount to a disburse giving the details of the accident, held void, ment of the share to Caroline J. Peper so as having been obtained by fraud. to entitle the executor, Charles G. Peper, to

3. NEGLIGENCE 141(12) INSTRUCTION A8 the 5 per cent. commission on said share.

TO EFFECT OF CONTRIBUTORY NEGLIGENCE ON After referring to the construction placed on section 222, R. S. 1889, now section 229 of the Revision of 1909, by the Supreme Court they must find before they could find for plain

Where court had instructed jury as to what in Hawkins v. Cunningham, 67 Mo. loc. cit. tiff, an instruction that if they find for the 418, and Hitchcock v. Mosher, 106 Mo. loc. plaintiff and find him guilty of contributory nego cit. 582, 17 S. W. 638, this court, in Garrison ligence they will, in assessing his damages, etc., v. Trust Co., 77 Mo. App. loc. cit. 338, says: held proper under federal Employers' Liability

Act (U. S. Comp. St. 88 8657–8665.) "From reason, as well as on the authority of the cases cited above, we hold that the 5 per cent. commission allowed administrators for

Appeal from St. Louis Circuit Court; Wiltheir services is not earned until the sum on liam T. Jones, Judge. which it is claimed has been fully administered ;

“Not to be officially published." that is, rightfully paid out in the due course of

Action by John Childeris against the administration to creditors or distributees of the

Northern Pacific Railway Company. Judgestate."

ment for plaintiff, and defendant appeals,

Affirmed.
To the same effect is In re Estate of
Boothe, 38 Mo. App. 456.

Fauntleroy, Cullen & Hay, of St. Louis, for It follows that the commissioner recom- appellant. mends that the judgment be affirmed.

Ernest C. Dodge and Safford & Marsalek,

all of St. Louis, for respondent. PER CURIAM. The foregoing opinion of BIGGS, C., is adopted as the opinion of the NIPPER, O. This is an action for damcourt.

ages brought by the plaintiff against the de The judgment of the circuit court is ac fendant in the circuit court of the city of St. cordingly affirmed.

Louis. The petition filed in this case al

leged that the defendant is engaged, as a REYNOLDS, P. J., and ALLEN and common carrier, in interstate commerce, and BECKER, JJ., concur.

having an office for the transaction of bust ness in the city of St. Louis, Mo.

That on the 14th of November, 1912, defend ant was engaged in repairing its tracks and bridges at Missoula, Mont., through a crew

of employés, who were housed and fed in a CHILDERIS v. NORTHERN PAC. RY. CO. bunk car attached to one of defendant's (No. 15886.)

trains; that in making repairs, defendant

transported said crew and their repair mate(St. Louis Court of Appeals. Missouri. Jan. rials from this bunk train to the point on 6, 1920.)

said road where the repairs were to be made

by means of hand cars; that one of these 1. PLEADING 291(1)-ANSWER OR REPLICA

hand cars was in bad repair, and that on the

14th of November, 1912, while plaintiff was STRUMENT, BUT ALLEGING IT TO HAVE BEEN PROCURED BY FRAUD, NEED NOT BE VERIFIED.

riding the broken hand car, at the direction Rev. St. 1909, § 1985, providing that, where of his foreman, said car was derailed, by pleading is founded upon written instrument

reason of the manner in which the cars becharged to have been executed by adverse par-hind it were operated, and plaintiff suffered ty, not alleged therein to be lost or destroyed, | the injuries for which he claims damages.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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TION ADMITTING EXECUTION OF WRITTEN IN

The answer was a general denial and as send it to the company, and in about six plea of contributory negligence, and a fur-| days would hear what the company had to ther plea that prior to the time plaintiff filed say; that he went back to the claim agent, his petition he had, in consideration of the accompanied by the Greek fruit man Gustas, sum of $25 paid him by the defendant, re a few days later, and at that time they ofleased, acquitted, and discharged defendant fered him $25, and told him if he had witfrom any and all causes of action. This pur- nesses he could have more money, "and they ported release was set out in defendant's an- | laughed to one another; they were making swer.

fun out of it"; that the claim agent never Plaintiff in his reply to this answer de read the report to him; that he could not nied the charge of contributory negligence, read it himself; that nobody read it to him; admitted the signing of the release in ques. and that at that time he did not know any. tion, but alleged that defendant had induced thing about such business as a settlement. plaintiff to sign and deliver the release re- | All the evidence offered on the part of the ferred to, by falsely stating to him and in- plaintiff tended to support his theory of the ducing him to believe that this release was case. This testimony was denied by defenda mere report of the facts concerning the ant's witnesses. manner in which plaintiff received his in The first assignment of error made by the juries, and that at the time of the signing of defendant was that the court should have the release in question plaintiff "was sick sustained its motion for judgment on the and injured, ignorant and unedacated, and pleadings, inasmuch as the reply filed by the unable to read said release,” and thąt later plaintiff was not verified, as required by secplaintiff accepted said sum of $25, believing tion 1985, R. S. 1909, which statute, so far that it was paid him in consideration of his as it relates to the question of verification, signing a report to defendant, and not as is as follows: compensation for any injuries he had re

"When any petition or other pleading shall ceived; that plaintiff had tendered to the be founded upon any instrument in writing, defendant the sum received, together with in-charged to have been executed by the other terest. This reply was not verified by affi- party and not alleged therein to be lost or dedavit. At the trial in the court below, the stroyed, the execution of such instrument shall Jury returned a verdict for plaintiff against be adjudged confessed, unless the party charg. defendant, for $530, less $30. After unsuced to have executed the same deny the execucessfully moving for a new trial, defendant tion thereof, by answer or replication, verified

by affidavit." 'brings this case here by appeal. The evidence offered on the part of the

In support of its contention that it was plaintiff was to the effect that at about the entitled to judgment on the pleadings by time mentioned in his petition he and other reason of said failure to verify, defendant track laborers were repairing defendant's cites Beck & Pauli Lithographing Co. v. track near Missoula, Mont.; that one of the Obert, 54 Mo. App. 240; Avery Co. v. Powell, hand cars upon which they rode was out of 174 Mo. App. 628, 161 S. W. 335; Dearborn order, and had been for some time, and that Canning Co. v. Kansas City, C., C. & St. J. this fact was known to defendant's foreman; Railway Co., 188 Mo. App. 208, 175 S. W. 93. that on the day this accident occurred the In Beck v. Obert, supra, the court merely broken hand car was placed on defendant's held “that the alleged fraud pertained to the track, at the direction of its foreman, and execution of the contract, and not to its inthat the other hand cars, about three in num-ducement," and that if an objection had been ber, were placed immediately behind this made on the trial, the court was of the opinbroken car, so that they might push it along ion that the admission of the evidence would defendant's track toward the bunk car where have been error. In the case of Avery Co. v. they were going; that the car immediately Powell, supra, in speaking of this proposibehind the broken hand car, in striking the tion, the court stated: front car, would tend to tilt the front wheels; that defendant's foreman had admonished

"Since there was a total failure to establish them to drive fast, as there was a train ap- in the pleading for failure to verify or in the

the defense of fraud, whether it be considered proaching, and that under these circumstances evidence adduced to support the charge, and a the front of the broken car upon which corresponding admission of the facts upon plaintiff was riding was derailed, throwing which plaintiff's cause of action rests," the plaintiff from said car, at which time he re-judgment was reversed. ceived the injuries complained of; that after being in the hospital for some time he con [1] In the case of Dearborn Canning Co. versed with defendant's claim agent, through v. Kansas City, C., C. & St. J. Railway Co., one Gustas; that at that time, which was on supra, the court held that the replication or about the 9th of January, 1913, the claim containing the denial of the execution of the agent stated, “We ought to make a report to written contract should be verified by attithe company;" that he wrote out something, davit, “where there was neither fraud nor had the plaintiff sign it, and stated he would mistake.” It was also held in Whitwell v.

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