Hord v. Manners , 178 Ark. 63 ( 1928 )

STATEMENT OF FACTS.

This appeal involves the validity of the claim of an executor for services performed for his testator in his lifetime. The facts necessary for a determination of the issue raised by the appeal may be briefly stated as follows:

J. G. Hord was one of the legatees in the will of Elizabeth Hord. After her death the will was admitted to probate, and J. G. Hord became executor. He presented a claim for $1,500 to the probate court for twenty-three years' services in managing the estate of Elizabeth Hord during her lifetime. The claim was allowed by the probate court, and the executor was directed to pay the claim, under proper orders of the court. Ethel Holland and W. H. Manners, who were also legatees under the will, prayed an appeal to the circuit court, which was duly allowed by the probate court. They filed a bond for costs, as required by the statute.

In the circuit court J. G. Hord, as executor, moved to dismiss the appeal on the ground that the matter in controversy had been adjudicated by judgment of the probate court since the appeal was taken. In support of his plea of res judicata he set up and proved the following facts: After the order of allowance of his claim had been made by the probate court and the appeal in the case at bar had been taken by Ethel Holland and W. H. Manners, the latter filed a petition in the probate court asking that the executor be required to file his account, and also asking for an order of distribution of the assets of the estate as far as could be made. J. G. Hord, as such executor, filed his account current, in which he charged himself with certain items and credited himself with certain amounts disbursed by him. Among the latter appears the following: "Paid to J. G. Hord, $1,500." The executor reported to the court at the same time that several suits were pending that affected the estate, and that a final report and distribution could not be made until these cases were settled. The account was duly examined and approved by the probate court at the next succeeding term. The probate court then made an order for the executor to distribute to those entitled to recover the same the amount which he admitted In his report to be on hand and ready for distribution. Ethel Holland and W. H. Manners accepted and gave a receipt for the respective amounts admitted to be due them. No appeal was taken from the judgment of the probate court approving the account current or from the order of distribution.

The plea of res judicata of the executor was overruled by the circuit court, and the case proceeded to trial on the merits. J. G. Hord introduced evidence to establish his claim, and Ethel Holland and W. H. Manners introduced evidence tending to show that J. G. Hord was not entitled to recover against the estate. There was a verdict and judgment on the merits in favor of appellees. The case is here on appeal. (after stating the facts). The judgment of the circuit court overruling the plea of res judicata of appellant was correct. Under our statute, an executor or administrator may establish his demand against his testator or intestate by presenting and proving the same to the satisfaction of the court. Crawford Moses' Digest, 96; Free v. Maxwell, 138 Ark. 489,212 S.W. 325; and Smith v. Mullen, 169 Ark. 944,277 S.W. 44. After the probate court allowed the claim of the executor, two of the legatees under the will were duly granted an appeal to the circuit court, under 2258 of Crawford Moses' Digest. The legatees filed a bond for costs, as described in the section, but did not file a supersedeas bond, as provided in 2259. Consequently the judgment of allowance in favor of the executor was not superseded. Section 2260 provides that an appeal may be taken without supersedeas. After the appeal had been granted by the probate court, the legatees filed an application in the probate court to require the executor to distribute the funds on hand. The order of distribution was made, and the executor distributed the amount which he admitted to be due to the legatees under the order of distribution made by the probate court. Appellees were paid, and signed receipts for their part under the order of distribution. It is plain that they should not be barred of their right of appeal from the judgment of allowance in favor of the executor because they did this. We do not think they should be barred for two reasons.

In the first place, appellees prosecuted their appeal to the circuit court from a judgment of allowance in favor of the executor, but did not file a supersedeas bond. They had the right to appeal without a supersedeas; but, while the appeal was pending, they had no right to have the allowance in favor of the executor distributed to them. The order of distribution properly recited the amount in the hands of the executor, and also showed the amount claimed to be due him by the estate; and, inasmuch as appellees prosecuted the appeal from the order of allowance in favor of the executor without a supersedeas, the receipt by them of the amount admitted to be due could in no sense affect their right of appeal. If they had a right to appeal without a supersedeas, they would certainly have the right to receive that portion of the estate which the executor admitted to be due them, and this is all they received under the order of distribution. Gate City Building Loan Assn. v. Frisby,177 Ark. 252, 6 S.W.2d 537.

In the second place, when the executor answered the petition of appellees for the order of distribution, he reported to the probate court that there were several matters affecting the estate pending upon appeal in the courts, and for that reason he could not make a final order of distribution. It is true that he claimed in his account current that he had paid himself $1,500 allowed him by the probate court. This was in the application of the common-law rule that, if a creditor becomes executor or administrator of his debtor's estate, he may retain so much of the assets in his hands as may pay his debt. 24 C.J. 436, par. 1193; and 11 R.C.L. 203, 227. The order of distribution must be considered in connection with the report or account filed by the executor, and, when this is done, it is evident that the order of distribution was that the executor should distribute that part of the estate which he admitted was ready to be distributed. The approval of the account in the form in which it was presented could in no sense be an adjudication and settlement of his $1,500 claim, which was then pending in the circuit court upon appeal from the judgment of allowance made by the probate court in a proceeding instituted by the executor under the statute for that purpose.

It follows that the circuit court was right in over-ruling the plea of res judicata of appellant.

The case on the merits was tried by a jury on conflicting evidence. There was no error in the admission of testimony or in instructing the jury. There was a verdict and judgment for appellees, and no reversible error was committed by the trial court. Therefore the judgment will be affirmed.