Robards v. Lamb

By the statutes of Missouri relating to the granting of letters testamentary and of administration, it is provided: 'If the validity of a will be contested, or the executor be a minor, or absent from the state, letters of administration shall be granted, during the time of such contest, minority, or absence, to some other person, [other or different from the one charged with the execution of the will, Lamb v. Helm, 56 Mo. 432,] who shall take charge of the property and administer the same, according to law, under the direction of the court, and account for and pay and deliver all the money and property of the estate to the executor or regular administrator, when qualified to act.' Gen. St. Mo. c. 120, § 13; Rev. St. Mo. c. 1, art. 1, § 14. The present suit was brought in behalf distributees to falsify a final settlement, made in one of the probate courts of Missouri, of the accounts of a special administrator, who was appointed, under the authority of the above statute, to take charge of and administer the property of a testator pending a contest as to the validity of his will. The plaintiff claims that at that settlement the distributees were not represented, and did not have actual or constructive notice thereof. After the contest as to the will ended, the probate court passed an order stating the balance in the hands of the special administrator, directing him to turn the same over to the executors of the estate, and providing for the discharge of himself and sureties, upon his filing in that court the receipt of the executors for such balance. The executors having given their receipt for all the property held by him, as shown by his final settlement, and the same having been filed, an order was passed by the probate court for the final discharge of the special administrator.

The supreme court of Missouri held in the present case that, while the laws of that state (Gen. St. c. 124, §§ 16-19; Rev. St. 1879, §§ 238-241) requiring notice by publication of the final settlement of executors and administrators, notice was not required in respect to settlements of special administrators in whose hands the property of a testator is placed pending a contest as to the validity of his will. Its language was: 'As was said in Lamb v. Helm, 56 Mo. 433, such special administrators occupy more nearly the position of a receiver who acts under the direction of the court than they do the position of a general administrt or. The special administrator is appointed for temporary purposes only, (Hawkins v. Cunningham, 67 Mo. 415,) and when the contest as to the will is over the nominated executor qualifies, his functions are at an end, and he must settle his accounts, and turn over the property in his hands to the regular executor or administrator. This accounting is his final accounting, it is true, but it is not a final settlement of the estate contemplated when notice is required to be given. There is no need of any notice, for there is then a regular representative of the estate with whom the settlement is made under the direction of the probate court. The statute which provides for notice on final settlements, therefore, has no application to settlements made by an administrator pendente lite, and notice is not required. As to section 47, c. 120, which provides that if any administrator die, resign, or his letters be revoked, he or his legal representatives shall account to the successor, etc., it is sufficient to say the section has no application to this case, for here the special administrator neither resigned nor were his letters revoked, but his powers ceased by operation of law, and the express terms of the appointment. We do not intimate that in these cases notice of the settlement must be given, though when an administrator desires to resign, notice of his intention to make application to that end must be given. It follows that the judgment of the probate court discharging the special administrator is final and conclusive even as against the plaintiff, for there is no saving clause as to minors or married women. The petition does not seek relief on the ground of fraud.' RoBards v. Lamb, 80 Mo. 303, 1 S. W. Rep. 222.

James Carr, for plaintiff in error.

George G. Vest, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.