Mason v. Estate of Gaither , 106 Mo. App. 354 ( 1904 )

REYBURN, J.

Mary M. Gaither died testate, letters testamentary were issued to appellant in February, 1900, and notice of the granting of such letters was published within thirty days succeeding, the first publication being March 12th. Pending a contest of the will of the testatrix, the then public administrator was appointed administrator, and administered the estate until March 6, 1902, when appellant was restored to the ex-ecutorship, the will having been sustained. Before the action assailing the will had terminated, about July 1, 1900, appellant tendered a copy of the demand herein to the administrator pendente lite, accompanied by notice that it would be presented to the September term, 1900, of the probate court for allowance, but nothing further was done till January 27, 1902, when notice and copy of the claim, verified by affidavit, were filed with the clerk of the probate court then in vacation, and on March 5th the claim was exhibited to the court; a member of the bar, as a suitable person to represent and defend the estate in the matter of the demand, was appointed, the claim heard and allowed on the thirteenth day of March for the sum of $196.85, classifying $163.35 as of the second class and $33.50 in the fifth class under the statute. At a succeeding term, but within the statutory limit, on the seventh of June, 1902, a creditor of the estate, the D. J. Brenan Livery and Undertaking Company, presented a motion to vacate the order allowing the demand, as improperly allowed and on the twenty-fourth of June, the demand was vacated and placed on the claim docket to be reheard, and upon retrial again allowed and classified as before, from which allowance the creditor corporation appealed to the circuit court in which tribunal, a trial before the court terminated in the allowance of $167.50 as a sixth class claim and claimant has appealed.

The judgment of allowance of a demand by a probate court is as conclusive as the judgment of any other court (Munday v. Leeper, 120 Mo. 417); but the statute in terms devoid of ambiguity or doubt, reserves to the probate court upon compliance with its provisions at instance of one of the enumerated parties in interest, including a creditor of the estate, power and right to vacate an order of allowance, try the matter anew, and allow or reject such demand, so such proceeding was by authority and in conformity to the statute enacted for the purpose of affording a summary rehearing hy the tribunal allowing the demand. R. S. 1899, sec. 214. The evidence clearly established, and the trial court by just inference found that the notice of the claim to Richardson was not in compliance with the statutory requirements, and its exhibition for allowance against the estate was suspended or abandoned, until its later revival, January 27, 1902, long subsequent to the expiration of the first year of administration. The findings of the trial court upon the facts in issue, including those items of the claim not allowed are conclusive upon this court, the indebtedness under the conditions disclosed was properly classified, and the judgment is affirmed.

Bland, P. J., and Goode, J., concur.