4. EXECUTORS AND ADMINISTRATORS 495(6) -ADMINISTRATOR NOT ENTITLED TO COMMIS- 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 or delaying creditors. It is true that fraud must be shown, but this may be shown by facts and circumstances from which the jury may reasonably infer a fraudulent intent or purpose. There was sufficient testimony to submit this case to the jury upon the theory stated in this instruction. It is true this testimony is disputed by the appellant, but that was a question for the consideration of the jury. We think the instructions, taken as a whole, are in proper form. Therefore the commissioner recommends that the judgment of the trial court be affirmed. An administrator was not entitled under Rev. St. 1909, § 229, to a commission for distributing a share of an estate under order of the probate court, where the distributee refused to accept it, although such share was set aside under instructions of the probate court and deposited in a place of safe-keeping, and was, subsequent to the death of the administrator, accepted by the distributee. Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge. "Not to be officially published." PER CURIAM. The foregoing opinion of NIPPER, C., 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 exceptions to a settlement made by Carrie REYNOLDS, P. J., and ALLEN and BECK- Miller Peper, as executrix of Charles G. ER, JJ., concur. PEPER v. BELL. (No. 15803.) (St. Louis Court of Appeals. Missouri. Feb. An order of distribution made under Rev. St. 1909, § 246, becomes final as to the rights of the distributees to their respective shares when no appeal is taken therefrom under section 289, in view of section 251, but where such an order, in addition to making distribution, went further and allowed an administrator 5 per cent. commission on the amounts to be distributed, the order was not a final judgment as to such commission, since by section 229 the question of compensation of an administrator is adjudicated at the time settlement is made. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.] 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 respondent. BIGGS, C. As there is no controversy between counsel as to the facts, we adopt appellant's statement. This cause originated in the probate court of the city of St. Louis, and arose out of that court sustaining exceptions to the settlement made by Carrie Miller Peper, as executrix of Charles G. Peper, deceased, who at the time of his death was administrator of the estate of Frederick C. Peper, deceased, with Christian P. Bell, as administrator de bonis non of said last-mentioned estate, up to the date of Charles G. Peper's death. The probate court sustained the exceptions to said settlement, and surcharged the Charles G. Peper estate with the amount of commissions which had been previously allowed to said Charles G. Peper by said St. Louis probate court in the settlement he made during his lifetime as administrator of the said Frederick C. Peper estate. Carrie M. Peper, as said executrix of the Charles G. Peper estate, appealed from said judgment of the probate court to the St. Louis circuit court. The latter court tried the case de novo, principally on an agreed statement of facts, and rendered a judgment 3. EXECUTORS AND ADMINISTRATORS 501-in favor of said Christian P. Bell, as adALLOWANCE OF COMMISSIONS TO ADMINISTRATOR ON ANNUAL ACCOUNTING NOT FINAL. Allowance to an administrator on an annual settlement of credits for commissions is not a final adjudication as to the right of the administrator to such credits, and such an allowance ministrator de bonis non of the estate of said Frederick C. Peper, and against Carrie Miller Peper, executrix of the said estate of Charles G. Peper, deceased, and the American Surety Company of New York, as surety on the appeal bond, in the sum of $3,481.24, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) from which judgment Carrie M. Peper, as (petition, and made an order reducing the executrix, appealed in due course to this bond to said sum of $20,000. court. The particular facts bearing on the questions raised for decision by this court are the following: The St. Louis probate court, at its June term, 1915, which was more than one year after the publication of notice of the grant of letters of administration to said Charles G. Peper, and after all claims and demands had been allowed against said administration estate and paid, made an order therein directing said administrator to make partial distribution to the heirs of said Frederick C. Peper the aggregate sum of $241,485.21 of the personal assets belonging to said estate, consisting of shares of stock in certain corporations and cash. Under that order the share of Caroline J. Peper, a sister and heir at law of said Frederick C. Peper, consisted of specified shares of stock aggregating the actual value of $57,298.75 and $53.99 in cash, or a total of $57,352.74. In the same order the court expressly al lowed to the administrator, and authorized him to pay himself, out of the personal assets remaining in his hands, compensation as administrator, 5 per cent. commissions on the sum distributed by said order, which allowance totaled the sum of $12,074.26, and included commissions on said distributive share of said Caroline J. Peper. All of the heirs excepting said Caroline J. Peper accepted their shares under said order. At the December term, 1915, of probate court Charles G. Peper filed his third semiannual settlement as administrator of said Frederick C. Peper estate, which settle ment was duly approved by the court, and the administrator took credit therein for the entire $241,485.21 ordered to be distributed as aforesaid, which included said share of Caroline J. Peper, and also took credit for the $12,074.26 commissions, in accordance with said order of distribution, which left in the administrator's hands other personal assets of the estate of the total inventoried value of $93,587.03. On the same day the third semiannual settlement was filed and approved by the probate court said administrator also filed a petition in that court, verified by affidavit, showing to the court that said Caroline J. Peper had been tendered, but had refused to accept and receipt for, her said distributive share of the estate, that the administrator had arranged to place the securities and cash constituting said share “in a safe deposit box subject to the joint control of the American Surety Company of New York and himself until said Caroline J. Peper accepts and receipts for same," and praying the court to reduce his administrator's bond from $400,000, the amount of the same at that time, to $20,000. The probate court sustained the With respect to the depositing of said securities and cash, the agreed statement of facts in the case contains this admission: "Thereafter, under instructions of the judge of the probate court of the city of St. Louis, the said distributive share of said Caroline J. Peper was set aside and deposited in a place of safe-keeping under the joint custody and control of said Charles G. Peper, as administrator, and the American Surety Company of New York, as surety on his bond, and so remained until the day of his (Charles G. Peper's) death." The record does not disclose just when Charles G. Peper died; but his executrix, Carrie M. Peper, filed her settlement as such executrix in the St. Louis probate court at the September term, 1916, thereof, with Christian P. Bell as administrator de bonis non of Frederick C. Peper's estate up to the time of the death of said Chas. G. Peper, in which settlement she charged her testator, as administrator of said Frederick C. Peper's estate, with the said balance of $93,587.03, as shown by his third semiannual settlement made and approved by and at the December term, 1915, of said court. Christian P. Bell, as administrator de bonis non of said Frederick C. Peper's estate, filed exceptions to that settlement, alleging that of the Frederick C. Peper estate, was not the said Charles G. Peper, as administrator entitled to the commission of 5 per cent. on said distributive share of Caroline J. Peper, nor to some other commissions he had taken credit for, because he had not "actually distributed" the assets. Said exceptions were sustained by the probate court, and the appellant here was ordered by that court to surcharge her settlement account accordingly. In addition to the foregoing facts, all of which were developed at the trial in the St. Louis circuit court, it is admitted by the agreed statement of facts that after Christian P. Bell was appointed administrator de bonis non of Frederick C. Peper's estate, in place of Charles G. Peper, deceased, he "reduced to his possession the aforesaid distributive share of the said Caroline J. Peper, without giving any receipt therefor to Carrie Miller Peper, executrix" of Charles G. Peper, and retained custody of the same until February 28, 1917, when he delivered said securities to Caroline J. Peper, who receipted to him for the same. The agreed statement of facts further provides "that, if the court finds as a matter of law that the account of Carrie Miller Peper, executrix of the estate of Charles G. Peper, deceased administrator of the estate of F. C. Peper, deceased, should be surcharg ed, as contended for by the respondent, that the amount for which the said Carrie Miller Peper, executrix of the estate of Charles G. [2] And by the construction given by our courts to section 289 an appeal does not lie from an annual settlement of an executor, but only from a final settlement. An annual settlement has none of the attributes of a final judgment and is not conclusive on any one. Picot v. O'Fallon, 35 Mo. 29, 86 Am. Dec. 134; Baker v. Schoeneman, 41 Mo. 391; State, to Use, v. Hoster, 61 Mo. 544; In re Davis, 62 Mo. 450; North v. Priest, 81 Mo. 561; In re Annual Settlement of Barnes, 43 Mo. App. 295. 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 an additional sum of $614.61, the same being commissions for which Charles G. Peper took credit" in said third semiannual settlement. It does not appear specifically whether Christian P. Bell has charged or will charge the Frederick C. Peper estate 5 per cent. commissions on said distributive share of Caroline J. Peper, to wit, $57,352.74, as afore said; but, if Charles G. Peper was not entitled to said commissions, then Christian P. Bell, his successor and administrator de bonis non of the Frederick C. Peper estate, was or is entitled to the same. Therefore practically the only question or controversy here is: Which one of the two administrators is entitled to said commissions? The foregoing facts present two questions: (1) Whether that part of the order of partial distribution made by the probate court at the June term, 1915, allowing Charles G. Peper the 5 per cent. commission on the distributive share of Caroline J. Peper, was a final judgment on such question; if so, that would settle the matter, inasmuch as it is admitted there was no appeal taken from said order and judgment; and (2) under the facts heretofore stated, was Charles G. Peper, as a matter of law, entitled to the commissions on the share of Caroline J. Peper, he not having actually distributed the fund to her, because of the fact that she refused to receive it? The judgment of partial distribution was conclusive only as to such matters that were necessarily involved in the application for the order and came within the purview of section 246 of the statute, which authorized the order. 2 Black on Judgments (2d Ed.) §§ 611-617; Fish v. Lightner et al., 44 Mo. 268; Baumhoff v. Railroad, 205 Mo. loc. cit. 264, 104 S. W. 5, 120 Am. St. Rep. 745; North St. Louis Gym. Society v. Hagerman, 232 Mo. 693, 135 S. W. 42; Sparhawk v. Buell's Adm'r, 9 Vt. 41. [3] It appears that the administrator, Charles G. Peper, at the December term, 1915, filed a settlement in the estate and took credit for the commissions referred to, but this did not adjudicate finally his right to the commissions, as it was an annual settlement, and could not be appealed from. The commissions may, and frequently are, allowed at the time of making annual settlement, but, as was said by this court in Re Annual. Settlement of Barnes, supra, an appeal taken from such allowance in an aunual settlement would be premature. Such matter of allowance is carried over and can be excepted to on final settlement. [1] I. As to the effect of the order of partial distribution made at the June term, 1915: This order was based on section 246, R. S. 1909, which provides that on a showing that there is sufficient money to satisfy all de mands against the estate the court shall order the payment of legacies and the distribution of shares. By virtue of section 289 of the statutes an appeal could be taken from the order of partial distribution made by authority of section 246. An appeal not 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 their respective shares. Section 251, R. S. 1909; Freeland v. Wilson, 18 Mo. 380; Pound v. Cassity, 166 Mo. 419, 66 S. W. 273. It follows that the right of Charles G. Peper to the commissions in controversy was not finally adjudicated by the order of partial distribution made at the June term, 1915. to have the 5 per cent. commission on the distributive share of Caroline J. Peper, we must rule against appellant, and this by reason of the construction placed on section 229 of the statutes by this court in Estate of Garrison, 77 Mo. App. 333, and in Re Peters, 128 Mo. App. 666, loc. cit. 672, 107 S. W. 406. This distributive share under the facts was never actually disbursed and paid out by However, in addition to making the partial distribution, the order in this case went further and allowed the administrator 5 per cent. commission on the amounts to be distributed. As to the effect and scope of this 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 (218 S.W.) against the executor or upon his bond upon refusal to pay, as contended by appellant; still the share was not actually paid to her by the executor, because she refused to ac cept it, and until it was in fact actually paid he was not entitled to charge a commission thereon. the execution of such instrument shall be adjudged confessed unless the adverse party denies execution by answer or replication verified by affidavit, does not require verification of declaimed to have been induced by fraud in order nial or reply, where execution is admitted or that the defense of fraud may be interposed. PLOYÉ TO SIGN RELEASE ON REPRESENTATION Under the admitted facts this distributive 2. RELEASE 17(2)—INDUCING IGNORANT EMshare of Caroline J. Peper was set aside under the instructions of the probate court and deposited in a place of safe-keeping unInjured employe'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 to believe that he was signing merely a report able to read and to whom release was not read, 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 the 5 per cent. commission on said share. After referring to the construction placed on section 222, R. S. 1889, now section 229 of the Revision of 1909, by the Supreme Court in Hawkins v. Cunningham, 67 Mo. loc. cit. 418, and Hitchcock v. Mosher, 106 Mo. loc. cit. 582, 17 S. W. 638, this court, in Garrison v. Trust Co., 77 Mo. App. loc. cit. 338, says: "From reason, as well as on the authority of the cases cited above, we hold that the 5 per cent. commission allowed administrators for their services is not earned until the sum on which it is claimed has been fully administered; that is, rightfully paid out in the due course of administration to creditors or distributees of the estate." To the same effect is In re Estate of Boothe, 38 Mo. App. 456. It follows that the commissioner recommends that the judgment be affirmed. PER CURIAM. The foregoing opinion of BIGGS, C., is adopted as the opinion of the court. The judgment of the circuit court is ac cordingly affirmed. REYNOLDS, P. J., and ALLEN and BECKER, JJ., concur. 141(12) INSTRUCTION AS TO EFFECT OF CONTRIBUTORY NEGLIGENCE ON RECOVERY APPROVED. Where court had instructed jury as to what they must find before they could find for plaintiff, an instruction that if they find for the plaintiff and find him guilty of contributory negligence they will, in assessing his damages, etc., held proper under federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665.) Appeal from St. Louis Circuit Court; William T. Jones, Judge. "Not to be officially published." Action by John Childeris against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals, Affirmed. Fauntleroy, Cullen & Hay, of St. Louis, for appellant. Ernest C. Dodge and Safford & Marsalek, all of St. Louis, for respondent. NIPPER, C. This is an action for damages brought by the plaintiff against the defendant in the circuit court of the city of St. Louis. The petition filed in this case alleged that the defendant is engaged, as a common carrier, in interstate commerce, and having an office for the transaction of bus 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.) 1. PLEADING 291(1)—ANSWER OR REPLICA- Rev. St. 1909, § 1985, providing that, where pleading is founded upon written instrument charged to have been executed by adverse party, not alleged therein to be lost or destroyed, said road where the repairs were to be made by means of hand cars; that one of these hand cars was in bad repair, and that on the 14th of November, 1912, while plaintiff was riding the broken hand car, at the direction of his foreman, said car was derailed, by reason of the manner in which the cars behind it were operated, and plaintiff suffered the injuries for which he claims damages. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The answer was a general denial and a plea of contributory negligence, and a further plea that prior to the time plaintiff filed his petition he had, in consideration of the sum of $25 paid him by the defendant, released, acquitted, and discharged defendant from any and all causes of action. This purported release was set out in defendant's answer. send it to the company, and in about six days would hear what the company had to say; that he went back to the claim agent, accompanied by the Greek fruit man Gustas, a few days later, and at that time they of fered him $25, and told him if he had witnesses he could have more money, "and they laughed to one another; they were making fun out of it"; that the claim agent never read the report to him; that he could not read it himself; that nobody read it to him; and that at that time he did not know any. thing about such business as a settlement. All the evidence offered on the part of the plaintiff tended to support his theory of the case. This testimony was denied by defendant's witnesses. The first assignment of error made by the defendant was that the court should have sustained its motion for judgment on the pleadings, inasmuch as the reply filed by the plaintiff was not verified, as required by section 1985, R. S. 1909, which statute, so far as it relates to the question of verification, is as follows: Plaintiff in his reply to this answer de nied the charge of contributory negligence, admitted the signing of the release in question, but alleged that defendant had induced plaintiff to sign and deliver the release referred to, by falsely stating to him and inducing him to believe that this release was a mere report of the facts concerning the manner in which plaintiff received his injuries, and that at the time of the signing of the release in question plaintiff "was sick and injured, ignorant and uneducated, and unable to read said release," and that later plaintiff accepted said sum of $25, believing that it was paid him in consideration of his signing a report to defendant, and not as 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 chargdefendant, for $530, less $30. After unsuc-ed 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 plaintiff was to the effect that at about the time mentioned in his petition he and other track laborers were repairing defendant's track near Missoula, Mont.; that one of the hand cars upon which they rode was out of order, and had been for some time, and that this fact was known to defendant's foreman; that on the day this accident occurred the broken hand car was placed on defendant's track, at the direction of its foreman, and that the other hand cars, about three in number, were placed immediately behind this broken car, so that they might push it along defendant's track toward the bunk car where they were going; that the car immediately behind the broken hand car, in striking the front car, would tend to tilt the front wheels; that defendant's foreman had admonished them to drive fast, as there was a train approaching, and that under these circumstances the front of the broken car upon which plaintiff was riding was derailed, throwing plaintiff from said car, at which time he received the injuries complained of; that after being in the hospital for some time he conversed with defendant's claim agent, through one Gustas; that at that time, which was on or about the 9th of January, 1913, the claim agent stated, "We ought to make a report to the company;" that he wrote out something, had the plaintiff sign it, and stated he would In support of its contention that it was entitled to judgment on the pleadings by reason of said failure to verify, defendant cites Beck & Pauli Lithographing Co. v. Obert, 54 Mo. App. 240; Avery Co. v. Powell, 174 Mo. App. 628, 161 S. W. 335; Dearborn Canning Co. v. Kansas City, C., C. & St. J. Railway Co., 188 Mo. App. 208, 175 S. W. 93. In Beck v. Obert, supra, the court merely held "that the alleged fraud pertained to the execution of the contract, and not to its inducement," and that if an objection had been made on the trial, the court was of the opinion that the admission of the evidence would have been error. In the case of Avery Co. v. Powell, supra, in speaking of this proposition, the court stated: "Since there was a total failure to establish in the pleading for failure to verify or in the the defense of fraud, whether it be considered evidence adduced to support the charge, and a corresponding admission of the facts upon which plaintiff's cause of action rests," the judgment was reversed. [1] In the case of Dearborn Canning Co. v. Kansas City, C., C. & St. J. Railway Co., supra, the court held that the replication containing the denial of the execution of the written contract should be verified by affidavit, "where there was neither fraud nor mistake." It was also held in Whitwell v. |