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made a so-called final settlement of Claudia W. Harris' estate May 9, 1893; all three estates being settled at the same time and in the same court. I find that Sarah W. Harris in her so-called final settlement on May 9, 1993, as guardian and curator of Claudia W. Harris, only charges herself with the following items, to wit: To proceeds from life insurance, $666.67; and to $200 as her interest in the sale and proceeds of said drug store, which she sold for $600; and to $129.66 as her part of the estate of her brother, Warren Harris, deceased. I further find she credited herself in said settlement with the sum of $7.35 costs and $600 for six years' board, clothing, tuition, and maintenance, showing a balance due said Claudia May of $388.98. I further find that the said Sarah W. Harris kept one-third of the proceeds of the sale of said drug store as her own, whereas I find and conclude as a matter of law she was not entitled to any part thereof, and had no legal interest therein. I further find and conclude that on May 9, 1893, and being the time that Sarah W. Harris made her so-called final settlement of Claudia W. Harris' estate, she should have charged herself with and accounted for the following Items:

To one-third life insurance..

To interest thereon for 5 years, 5 months, and 5 days at 73 per cent..

$ 666 67

274 30 300 00

80 80 357 21

To cae-half proceeds sale of drug store.

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$1,678 98

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Balance due Claudia W. Harris, $1,071.63. -Which said amount of $1,071.63 I find and conclude the said Sarah W. Harris owed her said ward Claudia W. Harris on May 9, 1893, instead of the amount she claimed to owe of $388.98.

I further find and conclude that these Hems making the difference in both the estates of Claudia and Warren Harris, minors, were not included in nor embodied in the said settlements of Sarah W. Harris, curator, and were not passed upon by the court in its actions in said estates, and were not adjudieated by said court. I further find that Claudia W. Harris at the time of said socalled final settlement was of age, and executed to the said Sarah W. Harris a receipt for $388.98 in full payment and satisfaction of her interest in the estates of James D. Harris and Warren Harris, and in full settement of her accounts as guardian and eurator of Claudia W. Harris. I further find that the said Sarah W. Harris filed said receipt in the probate court of St. Charles County, Missouri, and that the court made an order of record on that day, to wit, May 2. 1893, discharging said curator. I further And that the said curator, Sarah W. Harris,

did not pay to the said Claudia W. Harris the said sum of $388.98, or any part thereof, or any other amount or moneys. I further find that said ward was not informed as to her estate and its conditions, and signed the receipt because asked to do so by her mother and her lawyer, and that she did not waive any of her statutory rights. I further find that said probate court of St. Charles county, Missouri, on the 31st day of May, 1901, after hearing the motion of Claudia W. May, formerly Claudia Harris, late a minor, and which I find she filed in said court, asking said court to set aside and vacate the order of final settlement and discharge of her guardian, Sarah W. May, formerly Sarah W. Harris, and compel her to make a full and complete settlement of said estate, and after being fully advised in and concerning said matter, made an order and judgment of record on said day sustaining said motion, and ordered, adjudged, and decreed that the order of final settlement and discharge of said guardian made by the court on the 9th day of May, 1893, be vacated and set aside. I further find that said Sarah W. May did not serve any notice of her final settlement upon her ward Claudia May, nor of her intention to make such settlement or ask for a discharge, and that said ward did not waive her right to such notice. I therefore find and conclude that said so-called final settlement and order of discharge of said guardian and curator, Sarah W. May, formerly Sarah W. Harris, was and is vacated and set aside, and that such settlement was not and is not a final settlement.

"I further find as aforesaid that the amount due Claudia W. Harris, now Claudia W. May, on May 9, 1893, was $1,071.63. I further find that she is entitled to interest thereon at the rate of eight per cent. from that date to August 13, 1896-3 years, 3 months, and 4 days-which is $279.50. I further find that on the day of July, 1896, Sarah W. Harris and Claudia Harris sold the farm herein mentioned in St. Charles county, Missouri, for $1,205.70, and that the entire amount was paid to Sarah W. May, formerly Sarah W. Harris. I find and conclude that Sarah W. Harris was entitled to onefourth of the proceeds from the sale of said farm and Claudia Harris to three-fourths of the proceeds of the sale of said land. I find that the amount due Claudia Harris from the sale of said land is $904.27; making the total amount due and unpaid Claudia Harris, now Claudia May, from Sarah W. Harris, now Sarah W. May, on August 13, 1896, as follows:

To amount due Claudia Harris on final set-
tlement of her estate May 9, 1893....

To interest on said amount from that date
to August 13, 1896, at 8 per cent....
To three-fourths proceeds of sale of farm...

Total amount due.......

$1,071 63

279 50 904 27 $2,255 40

"I further find from the evidence that the real estate described in plaintiff's petition as being situated in the county of Pike and

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state of Missouri, to wit, all of lot 25 in block No. 107 in Baker's Claim Addition to the city of Louisiana, except five feet off west side of said lot, reserved for alley purposes, was purchased by plaintiff for the sum of $2,200, which said sum was paid therefor on the 13th day of August, 1896, and consisted of defendant Claudia May's share of the proceeds of the sale of said farm, and the balance of which purchase money of said Louisiana property consisted of trust funds collected by and held in the hands of the plaintiff, Sarah W. May, as guardian and curator of defendant Claudia May; all of which purchase money of the said Louisiana property was money due and belonging to said Claudia May from plaintiff, and were funds of said Claudia W. May held as trust funds by said plaintiff, and which went into and paid for said Louisiana property, the ownership of said purchase money being in said Claudia W. May. I further

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find that Sarah W. May has a fee-simple title to an undivided one-half interest, so far as the record title is concerned, in the land described in her petition as located in Louisiana, Pike county, Missouri, but further find and conclude that she holds said title and interest in trust, however, for the benefit of Claudia W. May.

"I find and conclude as a matter of law that Sarah W. May is entitled to and owns a homestead interest in lot No. 1, in block No. 20, in the Railroad Addition to the town of Wentzville, in St. Charles county, Missouri, and described in plaintiff's petition and is also entitled to and owns an undivided onefourth interest in fee simple in and to the remainder interest in said lot. I find and conclude as a matter of law that Claudia W. May is entitled to and owns an undivided three-fourths interest in fee simple in and to lot No. 1, in block 20, in the Railroad Addition to the town of Wentzville, St. Charles county, Missouri, subject to the homestead interest of Sarah W. May. I find and conclude as a matter of law that Claudia W. May is also entitled to and owns all of lot No. 25, in block No. 107, in Baker's Claim Addition to the city of Louisiana, Pike county, Missouri, except five feet off of the west side of said lot reserved for alley purposes. I find and conclude that she is the owner in fee by purchase of an undivided one-half interest in the said property last above described, and is entitled to and the owner of the other half interest in fee, the record title to which is in Sarah W. May, by reason of the fact that said Sarah W. May purchased said one-half interest with the funds of Claudia May as hereinbefore found, and placed title thereto in her own name. I further find and conclude that she took and now holds the same in trust for the benefit of the said Claudia W. May. I further find and conclude that Sarah W. May is indebted to Claudia W. May on August 13, 1896, over and above the trust funds which she used in

the purchase of the said Louisiana property, in the sum of $55.40, being the difference between the amount then due said Claudia W. May of $2,255.40 and the $2,200 used in the purchase of said Louisiana property, which is the said sum of $55.40, and should pay interest thereon at the rate of 8 per cent.

"I find from the nature and amount of the property to be divided that partition in kind of the same cannot be made without great prejudice to the owners thereof. I therefore recommend that partition be had herein, and that lot No. 1 in block No. 20 in the Railroad Addition to the town of Wentzville, St. Charles county, Missouri, be sold according to law to the highest bidder for cash, and that the proceeds of said sale be partitioned and divided between the parties herein according to their respective interests as herein found, and that plaintiff pay to Claudia W. May the sum of $55.40 and interest thereon at the rate of 8 per cent. from August 13, 1896, out of her interests in the proceeds of said sale, and that her interest in the proceeds of said sale be charged therewith. I further recommend that title in fee to all of lot No. 25 in block 107 in Baker's Claim Addition to the city of Louisiana, Pike county, Missouri, except five feet off the west. side of said lot, reserved for alley purposes, be adjudged and decreed in Claudia W. May, and that plaintiff be divested of any and all title therein."

Upon the coming in of the report plaintiff filed objections thereto, which, having been heard, were overruled, the report in all things approved, and the following decree entered: "It is therefore considered, ordered, adjudged, and decreed by the court that plaintiff, Sarah W. May, formerly Sarah W. Harris, be, and she is hereby, divested of any right, title, or interest, whether legal, equitable, certain, or contingent, or present or in reversion or in remainder, in and to lot No. twenty-five (25) in block No. one hundred and seven (107) in Baker's Claim Addition to the city of Louisiana, Missouri, except five (5) feet off of the west side of said lot, reserved for alley purposes, and that the absolute fee-simple title to said premises be, and the same is hereby, adjudged and decreed to be in defendant Claudia May; and the prayer of plaintiff for partition of the same is hereby denied. It is further considered, ordered, and adjudged by the court that plaintiff, Sarah W. May, be, and she is hereby, entitled to and is the owner of a homestead interest in and to lot No. 1 in block No. 20 in the Railroad Addition to the town of Wentzville, St. Charles county, Missouri, and that, in addition thereto, she be, and is hereby, entitled to and is the owner of an undivided one-fourth interest in fee simple in and to said premises. It is further considered, ordered, and adjudged by the court that defendant Claudia May be, and she is hereby, entitled to and is the own

er of an undivided three-fourths interest in fee simple in and to said lot No. 1, in block No. 20 in the Railroad Addition to the town of Wentzville, St. Charles county, Missouri, subject, however, to the homestead interest bereinbefore adjudged in favor of plaintiff, Sarah W. May; and the court decrees partition of said premises in accordance with the rights of the parties as herein before determined. It is further considered, ordered, and adjudged by the court that said lot No. 1 in block No. 20 in the Railroad Addition to the town of Wentzville, St. Charles county. Missouri, is not susceptible of division in tind among the parties in interest without great injury to the owners thereof; and the appointment of commissioners to divide said real estate in kind between plaintiff, Sarah W. May, and defendant Claudia May, and to report the advisability and practicability of a partition in kind of said real estate between them, is hereby dispensed with. It is therefore considered, ordered, and adjudged by the court that so much of said real estate above described as is situated in St. Charles county, Missouri, to wit, lot No. 1 in block 30 in the Railroad Addition to the town of Wentzville, be sold by the sheriff of said St. Charles county, for cash in hand, on some day during the regular March term, 1903, of the circuit court of said St. Charles county, in accordance with the laws governing such sales of real estate in partition, and that said sheriff make full, true, and complete report of the sale of said real estate and of his acts ander this order to this court at its next regular term. It is further considered, ordered, and adjudged by the court that upon the sale of said real estate aforesaid the homestead interest hereinbefore adjudged in favor of plaintiff, Sarah W. May, be commuted to its present cash value. It is further conidered, ordered, and adjudged by the court that defendant Claudia May have and recover from the plaintiff, Sarah W. May, the

m of fifty-five and forty-hundredths dolars (855.40), together with interest thereon from August 13, 1896, at the rate of eight S per cent. per annum, and that the interest of said Sarah W. May in and to said premses aforesaid, or in and to the proceeds of the sale herein ordered to be made of the same, is hereby charged with the lien of this judgment for the above amount."

From this decree the plaintiff appeals, her unsel contending here, as they did through te whole trial before the referee and the art below, that in determining the amount moneys that came into the hands of plainas guardian and curator of her daughter, and which, with the proceeds of her interest the farm which she inherited from her fither and brother, went into and constituted the purchase price of the Louisiana property, the referee and the court were concluded by The settlements made by her as such guardan and curator. And this is substantially te only ground upon which a reversal of the

decree is asked for. This contention is based upon the theory that such a settlement was a final settlement, as it purported to be, and if it was so in fact then the trial court committed error in the admission of evidence dehors the settlement, and the decree is obviously erroneous, for no principle is better settled in this state than that final settlements of guardians, executors, and administrators stand upon the same footing as other judgments of courts of competent jurisdiction, and are conclusive as to all matters the proper subject of account included in such settlements and involved in the final settlement. State ex rel. v. Gray, 106 Mo. 526, 17 S. W. 500; Smith v. Hauger, 150 Mo. 437, 51 S. W. 1052; Patterson v. Booth, 103 Mo. 402, 15 S. W. 543; Garton v. Botts, 73 Mo. 274. But, in order that a settlement shall have such conclusive force and effect, it must be a final settlement, made in accordance with the requirements of the statute in force at the time settlement is made. In this instance that statute required the plaintiff as guardian and curator of her daughter, for the purpose of making such a settlement, to make a just and true exhibit of the account between herself and her ward, and file the same in the court having jurisdiction thereof, and cause a copy of such exhibit, together with a written notice stating the day on which and the court in which she would make such settlement to be delivered to her ward at least four weeks next before the first day of the term of the court at which settlement was according to the terms of such notice to be made, and only upon satisfactory proof of the delivery of a copy of such exhibit and written notice of such settlement to her ward was the court authorized to make a final settlement of her account with her ward. Rev. St. 1889, § 5329. This statute was not complied with in making the settlement in question, as is apparent on the face of the record, and affirmatively shown by the evidence. The exhibit was not filed and the notice was not given as required by the statute; nor was there any waiver, if such a thing could be, by the appearance of the ward to the settlement. Hence it was not a final settlement, and cannot have the force and effect of one. Mead v. Bakewell, 8 Mo. App. 549; Folger v. Heidel, 60 Mo. 284; State, to Use, v. Hoster et al., 61 Mo. 544; Berkshire v. Hover, 83 Mo. App. 435. The last case was decided under the statute in force when this settlement was made, and whilst it is therein noted that the letter of that statute as a whole is not identical with the statute in force under which the previous decisions were made, it is aptly remarked that the spirit is the same, and the construction is a fair and wholesome one. As a settlement without notice, it could have no other or greater force than an annual settlement, and as such would be merely prima facie evidence of the facts therein contained-evidence which might be

rebutted and overcome, as was overwhelmingly done in this case, by competent and credible evidence.

Plaintiff's contention cannot be maintained, and, but for the last paragraph of the decree, in which a judgment for $55.40 is rendered against the plaintiff and charged against her homestead, the decree would be affirmed. We do not perceive, however, upon what principle the plaintiff's homestead can be charged with an indebtedness to her ward in an action in partition. That indebtedness has nothing to do with the res of the suit. It was only with the ward's money that went into the land to be partitioned that the chancellor had to do in this action. Hence for that error in the decree the same will be reversed, and the cause remanded to the Louisiana court of common pleas, with directions to that court to strike that paragraph from the decree, and proceed with the case to final judgment. All concur, except MARSHALL, J., not sitting.

CITY OF ST. LOUIS v. LAWTON et al. (Supreme Court of Missouri, Division No. 1. June 15, 1905.)

1. BILL OF EXCEPTIONS-TIME FOR FILING.

Where no bill of exceptions was filed during the term, or within an extension of time then granted, the exceptant could not incorporate the proceedings in a bill filed at a subsequent term.

[Ed. Note. For cases in point, see vol. 21, Cent. Dig. Exceptions, Bill of, §§ 49-51.] 2. NEW TRIAL-MOTION-SCOPE-REVIEW.

Where, at one term, an order was made setting aside a report of commissioners on damages in condemnation proceedings and appointing a new commission to inquire into the damage, and no exception was taken to such action, on the report of the new commission at a subsequent term, the party dissatisfied therewith could not acquire a right to have the validity of the appointment of the commission reviewed by making the motion for new trial include the proceedings of the prior term.

3. EMINENT DOMAIN-MUNICIPAL CORPORA

TIONS-PROCEEDINGS-DISMISSAL.

Under St. Louis City Charter, art. 6, § 7 et seq., providing that, on a petition to condemn lands and appointment of a commission to assess damages, opportunity shall be given to report to the municipal assembly "for its information and approval," the disapproval of the report does not of itself operate as a dismissal of the proceedings.

4. SAME-DAMAGES-TRIAL BY JURY.

Under St. Louis City Charter, art. 6, § 7, providing that, on exceptions to the report of commissioners assessing damages in proceedings to condemn land, the court may make such order as justice may require, and may order a new appraisement, an order making changes in the benefit assessment was not an infringement on the right, given by Const. art. 2, § 21, to have the damages assessed by a jury or commission of freeholders.

Appeal from St. Louis Circuit Court; Selden P. Spencer, Judge.

Proceedings by the city of St. Louis against Joseph Lawton and others. From a judgment assessing damages and benefits to de

fendants in the condemnation of land, one of them appeals. Affirmed.

Sears Lehmann and Boyle, Priest & Lehmann, for appellant. Chas. W. Bates and C. R. Skinker, for respondent.

At

VALLIANT, J. This is a proceeding to open a street, condemning land to be taken for that purpose and assessing benefits. The St. Louis Fair Association is one of the property owners whose land is taken and is the appellant. The petition was filed April 24, 1897. Commissioners were appointed, who filed their report October 24, 1899. Time was given to report to municipal assembly, and exceptions to the commissioners' report were filed. On April 30, 1900, during the April term, it is said in appellant's abstract that the city counselor filed a statement showing that the municipal assembly had disapproved of the commissioners' report, and that on the same day the court made an order setting aside the report and appointing a new set of commissioners to make a new assessment of damages and benefits. The order contains no finding or recital of facts as its base, but simply sets aside the report and appoints a new commission. the October term, 1900, the second set of commissioners filed their report, awarding appellant $1 damages for the land taken, and assessed against it amounts aggregating $4,261.65, for benefits, and against the city as for benefit to the general public $100, to which report appellant filed exceptions: First, that the damages assessed in appellant's favor were inadequate; second, the benefit district should have been extended further; third, the benefits assessed against the city were too small; fourth, that the failure of the municipal assembly to approve the report of the former commissioners operated as a withdrawal of the proceedings, and therefore this report is without warrant of law. The exceptions came on to be heard on evidence at the June term, 1901, when the court sustained the exceptions to the extent of reducing the aggregate assessment of the benefits against the appellant $1,200, and adding that sum to the assessment against the city, and, after so modifying the report, approved it, and rendered final judgment of condemnation of appellant's property accordingly. Appellant in due time filed a motion for a new trial, assigning three grounds: First, error in modifying report and entering judgment thereon; second, under the evidence the exceptions should have been sustained and the report set aside; third, admitting illegal evidence for the plaintiff and excluding legal evidence for the exceptor. The motion was overruled, and leave to file bill of exceptions on or before October 7th next was granted, which bill was filed in due time. On the trial the evidence for the exceptor tended to show that the amount of damages assessed was inadequate, and con

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tra. for the plaintiff, that the land proposed to be embraced in the street had in fact already been a public road many years.

1. The first and main proposition of appellant is that the disapproval by the municipal assembly of the report of the first set of commissioners was in effect the end of the suit. All that the court did thereafter was outside of its jurisdiction. The learned counsel on both sides of this controversy are agreed on the proposition that no action of the trial court is reviewable on appeal, unless it was presented to the trial court in a motion for a new trial, or a motion in arrest, or unless it appears on the face of the record proper. There was no motion in arrest, but appellant insists that the point was preserved in the motion for a new trial, and also that it is on the face of the record proper. The only bill of exceptions we have is that which covers the trial at the June term, 1901. The order of the court setting aside the report of the first set of commissioners and appointing a new commission was made at the April term, 1900, and there was no bill of exceptions filed at that term, and no extension of time asked or given to file one. The proceedings of the court at that term were not excepted to. The bill of exceptions taken at the June term, 1901, undertakes to go back to the April term, 1900, and brings into it the order made at that term, and says, "to which action of the court this exceptor and defendant, the St. Louis Fair Association, then and there duly excepted."

But when

the April term, 1900, closed, and no bill of exceptions was filed then, or within an extersion of time then granted, its book was sealed, and the party cannot incorporate into a bill of exceptions covering the proceedings of a subsequent term that which should have been preserved in a timely term bill. Therefore the recital in this bill that the party excepted to the ruling of the court at the former term cannot be considered.

Appellant contends that this point is preserved in the record in this way: In the exceptions filed to the report of the second commission, the fourth ground is that the failure of the assembly to approve the report of the first commission operated as a withdrawal of the proceedings, and in the motion for a new trial at the June term, 1901, one of the grounds is that the exceptions should have been sustained. But a motion for a new trial should be based on what occurred at the trial. It cannot go back to the proceedings and rulings of the court at a former term, and bring them in to impeach the regularity of the proceedings on the trial under review. If parties submit to a ruling without exception, they will be presumed to have acquiesced in it. If the proceedings under this second commission had been entirely satisfactory to appellant, it would not have desired to question the authority of the court to appoint a new commission. It cannot acquiesce until the report comes in against it, and then go 88 S.W.-6

back and object. The point relied on is not preserved in this bill of exceptions. What is above said relates, of course, to matters in pais. If the alleged infirmity is in the face of the record, it needs no bill of exceptions to bring it up for review. Does it appear in the face of the record proper that the court committed error in setting aside the first report and awarding a new appraisement? It is argued for appellant that the court based its order on the action of the municipal assembly in refusing to approve the report. But that does not appear on the face of the record proper. The order itself contains no finding or recital of fact, and all reference in this bill of exceptions to what occurred at the April term, 1900, is to be disregarded. There is, therefore, nothing in the record of which we can take notice that shows any action of the muncipal assembly in reference to the report of the first commission. The record proper shows that exceptions were filed to the report, and the charter provides in such cases (section 7, art. 6) that the court shall hear the exceptions and make such order in the case "as right and justice may require, and may award a new appraisement upon good cause shown." There was, therefore, express authority for the court to do just what it did.

Perhaps, after what we have said, it is unnecessary to consider what would have been the effect of the refusal of the municipal assembly to approve the first report, if the second properly showed such refusal; but, lest our silence on that point might give a wrong impression, we deem it proper to say that whilst the charter (section 9, art. 6) requires that opportunity be given the city counselor to report the matter to the municipal assembly "for its information and approval," and that no action be taken on the report by the court until the municipal assembly has acted, it does not say what effect the disapproval of the report by the municipal assembly shall have. The same section in that connection goes on to say that the city may dismiss or withdraw the proceedings on payment of costs, and when it does so it shall not begin the action again for 10 years. That language contemplates motion by the city in court or before the clerk in vacation to dismiss the suit. ID fact, when a suit of any character is pend ing in court, it cannot be dismissed by the action of a party outside and independent of the court or its officers. The code of procedure provides how a suit may be dismissed in term or in vacation. Sections 639, 797. It may be that the action of the municipal assembly in refusing to approve a report would furnish a basis on which to found a motion to dismiss (as to which we express no opinion); but the action itself does not dismiss the suit. The charter might have given it that effect, if it had so provided; but it does not so provide. In the next section (10) it is provided that when

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