Tonnies v. McIntyre , 82 Mo. App. 268 ( 1899 )

BOND, J.

Christian Tonnies recovered three judgments in 1875 and 1876, against J. W. McIntyre, in the circuit court of St. Louis county -for the sums of $564.44; $513.87 and $583.14, respectively. Soon afterwards Christian Tonnies died. Administration upon his estate was granted to his widow, and subsequently A. G. Tonnies was appointed administrator de bonis non of said estate. On the twenty-sixth of September, 1878, A. G. Tonnies made final settlement of his trust *and an order of distribution was entered in accordance therewith. He, however, never filed his receipts showing compliance with said order, and was never formally discharged as administrator de bonis non. In 1895 McIntyre, the defendant in said judgments died, and Sarah McIntyre, was appointed’administratrix of his estate. Thereupon after notice to her as such, the plaintiff presented transcripts of said judgments to the probate court for classification against the estate of John W. McIntyre. The probate court assigned said judgments to the fourth class of demands. On appeal to the circuit court a similar judgment was rendered, from which the administratrix of J. W. McIntyre has appealed to this court.

A valid final settlement of an administration in the probate court has all the conclusiveness of a former adjudication as to all matters embraced within such settlement, and absolves the personal representatives from further liability on account of anything included in the settlement, except upon appeal, or in the exercise of the equity jurisdiction vested in the circuit court. But that is not the question presented by the present appeal. The question here is, could the administrator of the plaintiff in the judgments, who had never been discharged as such by order of the probate comí, present said judgments to that court for classification against the estate of the judgment debtor? The sums due on these judgments had never been collected nor disbursed. The judgments themselves were unadministered assets, to which plaintiff acquired title when he qualified as administrator de bonis non. He has never in any way parted with this title, nor has the court which invested him with it, discharged himfrom future control. He is, therefore, as to these assets still the only representative of the estate recognized by the law, and is necessarily subject to the future orders of the probate court as to their distribution. Rugle v. Webster, 55 Mo. loc. cit. 250; Garner v. Tucker, 61 Mo. loc. cit. 432; Melton v. Fitch, 125 Mo. loc. cit. 289; 2 Woerner on Administration [2 Ed.], sec. 506. • It follows that the objection to the classification of the judgments in question for assumed want of capacity on the part of plaintiff to present them for that purpose, is wholly untenable.

The second point insisted upon by appellant is, that the judgments should not have been classified as such because not revived by scire facias within ten years after their rendition. The statute gives this process of revivor to restore the lien of a judgment and authorize a new execution thereon. E. S. 1889, sec. 6013. Although revived in this way a judgment does not lose its character as such, it is still within the statutory period of limitation, conclusive as to the amount adjudged to be due, and as to all defenses which might have been set up prior to its obtention. In this case the title holder of the judgments is not asking process of execution, nor to enforce any judgment liens; he only asks that these judgments — which were mergers of the previous demands upon which they were founded — be assigned to that class which the statute expressly provides for “all judgments rendered against the deceased in his lifetime.” E. S. 1889, sec. 183; subdivision 4. The decision of the circuit court so ordering the judgments in question to be assigned to the fourth class of demands 'against the estate of appellant’s intestate is correct, and is therefore affirmed.

All concur.