Vosler v. Brock

DeAbmowd, C. — Davis andYosler, having obtained, the allowance-of a demand against the estate of John Brock, deceased, then, in 1871, in the hands of John C. Brock and S. E. Brock, executors of said deceased, in 1877 petitioned the probate court of Cass county, having' charge of said estate, for an order for the sale of certain real estate of the deceased to pay their allowed demand. After many continuances and delays the order of sale-was made, and defendant, John C. Brock, as the only acting executor, said S. E. Brock having long before removed from the state and acquired a residence in another state, appealed to the circuit court, and, the action of the probate court being affirmed, he appealed to this court. The executor resisted the order on the ground that the allowance to Davis & Co. was made without notice to the executors of presentation of the demand, and because the demand was presented to the common pleas court at [579] Pleasant Hill, and the cause thence transferred to Harrisonville, without the knowledge or consent of the executors, and the allowance made at Harrisonville without jurisdiction. Also, that the demand was not allowed or exhibited within the statutory period within which demands against the estates of deceased persons must be exhibited. Evidence was introduced by each party on the question of notice. Appellant objected to much of that introduced by the plaintiff, and urges his objection here. Davis died since the cause reached this court, and the action was revived in the name of Gilbert V"osier, as surviving partner, plaintiff. I. There is nothing in the record to show when, if at all, notice was given by the executors of their taking charge and beginning the settlement of the estate of their testator; so the question of limitations does not arise. Even if it appeared prima facie that the claim was not exhibited in time, its allowance by the court would rebut the presumption. II. Th¿ court had jurisdiction of the subject-matter. Its records recite: “Now come the plaintiffs aforesaid by their agents, and file in court proof that defendants had been duly notified of the presentation of said plaintiffs’ demand, and this cause is continued until the November term of this court, A. D., 1871.” Also, the following appears as entered of record November 8, 1871, in the proceedings of said court at Harrisonville : “Now^ come the plaintiffs aforesaid and again present their demand for allowance against said estate, they having heretofore, t@-wit: on the 11th day of August, 1871, filed their demand and also filed proof that defendants had been duly notified that plaintiffs would present their demand,” etc. Acts 1867, p. 87. Hpon this record as to notice, the allowance may well stand. Much less would be sufficient to support it. Brooks v. Duckworth, 59 Mo. 48. III. The one executor having removed from the state, the court treated the other as the sole testamentary [580] representative of the deceased, and thus, in effect, discharged the one who became disqualified by non-residence (State ex rel. v. Rucker, 59 Mo. 17), although n© formal entry to that effect appears. “Acts done whieh pre-suppose the existence of other acts to make them legally operative, are presumptive proof of the latter.” Johnson v. Beasley, 65 Mo. 350. IV. In this view it is not important whether incompetent evidence was or was not admitted on the question of notice, or no notice, of the presentation of plaintiff’s demand. The record shows the demand was regularly allowed, and the order of sale (there being no personal property of the estate out of which to satisfy the j udgment), would naturally follow. It could not be stayed by parol evidence tending to show that there never should have been such judgment of allowance. In Brooks v. Duckworth, supra, the allowance, much less formal than the one in this case, was declared safe against a direct and timely attack upon it. But even if the evidence to which the defendant objects were excluded, that then remaining, if competent for the purpose, would not be sufficient to nullify the judgment of allowance, to satisfy which plaintiff asked for the sale of the real estate of the deceased. The judgment should be affirmed. All concur.