Schooler v. Patrick , 138 Mo. App. 100 ( 1909 )

ELLISON, J.

— This proceeding was begun in the probate court of Cass county on the 17th of October, 1907, by certain heirs for an order that they be paid their share, of an estate then unsettled in such court. Their claim was allowed in that court and again on appeal in the circuit court. The administrator has brought the case here.

It appears that one Benjamin S. Snyder died intestate in Cass county on the 30th of .July, 1906, without children, father or mother, and whose only heirs were uncles and aunts and their descendants. He left an estate consisting of four hundred and ten acres of land and about $6,000 worth of personal property. The defendant Patrick was appointed administrator of his estate. Afterwards a partition suit was brought by certain of the heirs against other named heirs and the “unknown heirs” of said Snyder.

These claimants are children of J. B. Schooler, deceased, who was a brother of the deceased Snyder’s mother, and were therefore cousins of deceased Snyder. They were not made parties to the partition suit except as the “unknown heirs of J. B. Schooler,” their father. The proceedings in the partition suit were regular. There was an order of publication against non-resident defendants and “unknown heirs,” and the proceedings were in all respects proper. Judgment was rendered and an order of sale made at which the land was sold for $9,361.38, after deducting expenses. That sum was divided among all the heirs of Snyder save these four claimants as children of J. B. Schooler, who allege they were entitled to $222 each as their share of the proceeds of the partition sale.

It further appears that of the other estate left by Snyder there remains in defendant’s hands as administrator more than $4,000. These claimants’ avowed object in instituting this action in the probate court was for the purpose of equalizing and distributing the property of decedent so that they may share equally.

The judgment in partition was rendered in January, 1907, and the sale was in March following. It recited that any unknown heirs, if there were any, having failed to appear and assert their interest, the judgment by default was made final and they were “divested of all interest in said real estate.” “And such unknown persons are forever barred from having or receiving any interest in said real estate described in the petition.”

The question discussed by counsel is whether this action can be maintained in the probate court. We have concluded that it cannot. The statute relating to partition of real estate provides for such partition in case of unknown heirs [Chap. 53, E. S. 1899.] These claimants were parties to the partition under the designation of “unknown heirs,” and, under certain contingencies, the remedy for their share of the proceeds of the sale is provided for by sections 4417-4421. But, under the facts of this case, it seems that a petition for review of the judgment should have been filed with the circuit court, which may be done at any time within three years. Secs. 777, 780 E. S. 1899. That statute applies to cases like this, where in a suit for partition parties have been notified by publication and failed to appear. [73 Mo. 13.]

As already stated, the judgment in partition appears in regular form upon proper publication. In such case it concludes “unknown heirs.” [Freeman on Cotenancy and Partition, sec. 483; 2 Black on Judgments, secs.' 661, 546.] It therefore would seem to be reasonable to disallow a proceeding of the nature here instituted, at least so long as that judgment stands unaltered or unchanged.

The result from the foregoing view is to reverse the judgment.

All concur.