Michie v. Grainger , 149 Mo. App. 301 ( 1910 )

COX, J.

R. F. Michie died in December, 1901, and left as his heirs his widow, Nettie Grainger, who is now the defendant in this action, and his brothers and sisters, to-wit: S. A. Michie, this plaintiff, Walter Michie, Guy Michie, William Michie, Cora Coleman and Maude Montague. This plaintiff was appointed administrator of his estate, and the defendant, his widow, elected under the statute to take one-half of the estate in lieu of dower. During the progress of administration certain notes, the property of the Bank of Caruthersville, were probated against this estate, amounting in the aggregate to $314.94. At the proper time plaintiff gave notice as required by law and made final settlement of the estate, and at this time he had on hand some considerable sums of money which, by order of the probate court, he distributed to the heirs of deceased, and the evidence shows that in all, this defendant was paid about twelve hundred dollars. Afterward plaintiff discovered that in his final settlement he had omitted the item charged against him of $314.94, due the bank of Oaruthersville. The bank demanded payment from him of this sum, and threatened suit upon his bond if it was not paid. Plaintiff then paid this amount to the Bank of Oaruthersville and took an assignment of the notes to him, and as this defendant was entitled to, and had received one-half of the estate, he brought this suit against her, seeking to recover back from her one-half of the $314.94, to-wit: $157.47. Judgment rendered for him for this amount, and defendant has appealed.

The contention in this court is that the facts proven did not authorize the judgment in plaintiff’s favor. It will be noted that plaintiff, as administrator of the estate of M. F. Michie, had made final settlement, paid out the money in accordance therewith, and had béen finally discharged. The petition in this case seeks only to secure a money judgment against defendant for the amount erroneously paid to her. It does not seek to correct or set aside his final settlement as administrator of the Michie estate.

It is the settled law of this State that a final settlement of an administrator made in accordance with the statute in force at the time, has the force and effect of a final judgment, and is binding upon all parties interested until set aside or corrected, and can only be set aside or corrected for the same reasons that would warrant the same procedure under any other judgment. [State ex rel. Pountain v. Gray, 106 Mo. 526, 534, 17 S. W. 500; Munday v. Leeper, 120 Mo. 417, 419, 25 S. W. 381; May v. May, 189 Mo. 485, 501, 88 S. W. 75; Smith v. Hauger, 150 Mo. 437, 51 S. W. 1052; Patterson v. Booth, 103 Mo. 402, 15 S. W. 543.]

And the above rule applies to items omitted from the account the same as to any other items and such judgment cannot be collaterally attacked. [State ex rel. v. Roland, 25 Mo. 95; Patterson v. Booth, 103 Mo. 402, 419, 15 S. W. 543.]

This being true plaintiff is bound by this final settlement and cannot make a mistake therein, if there was one, the basis of an independent action; but before he can proceed to enforce contribution or repayment to him of money paid by reason of an error in his final settlement he must first proceed in a court of equity to set aside that settlement. [State ex rel. v. Carroll, 101 Mo. App. 110, 113, 74 S. W. 468.] Or he may, in a proper proceeding, have the final settlement corrected. [Boone v. Miller’s Executor, 16 Mo. 457; Wilson v. Broughton, 50 Mo. 17; Case, Administrator v. Cunningham, 61 Mo. 434.]

The final settlement in this case may be corrected by a court of equity in an action for that purpose in which all the parties interested are made parties. If it be true as plaintiff offered to prove in this case that all the distributees of the estate of R. F. Michie, deceased, except this defendant have conceded the mistake and settled with plaintiff accordingly, then this plaintiff may, by amending his petition and alleging that fact, have the final settlement corrected in this case, and upon that being done plaintiff may also in the same case secure judgment for what the settlement, as corrected, shall, show to be due him from defendant, but until this is done the judgment in this case cannot stand.

The judgment will be reversed and the cause remanded.

All concur.