Mo.)

STATE V. LAMB

proposition stated by Fowler, and the ex-avoidance, and admits the right to the legacy
pression of a desire that the bill would not except for the defense.
grow too large.

[13] The respondent urges that no lien ought to be given because the prices charged on some of the items were greater than agreed upon. The evidence shows that, if there was any overcharging, it was unintentional; at least it conclusively appears that there was room for an honest difference of opinion as to the prices to be charged. Much lumber was bought in addition to the first list. It is also clearly shown that, if any items were overcharged, they were, and are, easily separable from the others, and, as the court found that the plaintiff was entitled to a judgment for a sum less than the amount of the account, it is presumed that in doing so it made all necessary deductions on account of erroneous charges. Certainly, if there were any overcharges included in the account, the plaintiff would not be entitled to a judgment for them, and the court would not render judgment for more than the amount due under the contract. Besides, the court did not refuse the lien on this ground, but on the sole ground that the last two items were furnished under a separate and distinct contract.

There being no evidence from which it could correctly draw such a conclusion, the case is reversed and remanded, with directions to enforce the judgment as a lien upon the building and premises described in the petition. All concur.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1274-1297; Dec. Dig. § 314.*]

4. APPEAL AND ERROR (§ 1207*)—MANDATE—

CONSTRUCTION.

In a suit to compel an executor to pay a legacy left to the father of plaintiff's ward, the executor set up as a defense the father's indebtedness to the estate; the pleadings admitting the amount of the legacy. Held, that a mandate by the Court of Appeals to the circuit the sum shown to be due, is an express direccourt, commanding it to find for the plaintiff tion to find for the amount of the legacy, and that court could not remand the case to the probate court to allow the executor a new trial in which to set up new defenses.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4696-4699; Dec. Dig. § 1207.*]

5. APPEAL And Error (§ 1198*)—DETERMINATION-MANDATE-EFFECT.

When the lower court receives the mandirections contained therein, and is without audate of an appellate tribunal, it must follow the thority to go outside.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4668; Dec. Dig. § 1198.*] SCOPE OF REMEDY 6. MANDAMUS (§ 4*)

RIGHT TO MANDAMUS. In a suit to compel an executor to pay a legacy, the Court of Appeals directed the circuit court to find in favor of the plaintiff for the amount due, the pleadings having admitted the amount of the legacy. Instead of doing so, bate court, from whose order the executor apthe circuit court remanded the case to the proHeld, that the failure of plaintiff to pealed. appeal from the action of the circuit court in remanding the case to the probate court, and his action in moving to dismiss executor's appeal, will not bar him from the remedy of mandamus to compel the circuit court to follow the mandate; for, while mandamus may not be substituted for an appeal, a party cannot be required to bring successive appeals to require

STATE ex rel. WATTENBARGER v. LAMB, the trial court to follow the mandate of an ap

Circuit Judge.

(Kansas City Court of Appeals. Missouri.
June 30, 1913. Rehearing Denied
Nov. 3, 1913.)

1. APPEAL AND ERROR (§ 1176*) — DIRECTING
ENTRY OF JUDGMENT.

On appeal from a judgment of the probate court denying plaintiff's ward a legacy, the circuit court should render any judgment which the probate court should have granted, and an appellate court may direct the rendition of such a judgment by the circuit court, where an appeal has been taken to that tribunal.

pellate court.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 9-21, 24-34; Dec. Dig. § 4.*]

7. MANDAMUS (§ 181*)-PETITION-WRIT.

That the petition included in an alternative writ of mandamus prayed that the circuit court be required to enter an order compelling an executor to pay a legacy in accordance with the mandate of the Court of Appeals, and for such further sums as the relator might be entitled to, will not preclude the issuance of a peremptory writ, on the ground that the petition prayed for more than the plaintiff was [Ed. Note.-For other cases, see Appeal and entitled to, where subsequent allegations showof the legacy. Error, Cent. Dig. 88 4588-4596; Dec. Dig.ged that plaintiff was only entitled to payment 1176.*]

2. JUDGMENT (§ 619*)-DEFENSES-PRESENTATION OF DEFENSES.

In a suit against an executor to compel him to pay a legacy, he must present all of his defenses at once or they are waived. see Judgment, [Ed. Note.-For other cases, Cent. Dig. §§ 1332, 1667; Dec. Dig. § 619.*] 3. EXECUTORS AND ADMINISTRATORS (§ 314*) -ACTIONS-PLEADING.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. $$ 401-404, 406, 408, 409, 418; Dec. Dig. § 181.*]

8. EXECUTORS AND ADMINISTRATORS (§ 313*) -DISTRIBUTION-DEFAULT OF EXECUTORINTEREST ON LEGACY.

Where an executor wrongfully refuses to from the date of filing petition in the probate pay a legacy, interest will be allowed thereon see Executors [Ed. Note.-For other cases, court requesting such payment. and Administrators, Cent. Dig. §§ 1271-12732; Dec. Dig. § 313.*]

In a suit to compel an executor to pay a answer setting up that plaintiff's legacy, an not entitled to a legacy from her ward was grandfather's estate which was left to her father, who died before the grandfather, because of the father's indebtedness to the grandfather, is in the nature of a plea in confession and

Original proceeding for mandamus by the State, on relation of Jacob B. Wattenbarger,

guardian, against Fred Lamb, Judge of the Circuit Court of Sullivan County. Peremptory writ issued.

Calfee & Painter, of Milan, and E. M. Harber, of Trenton, for relator. A. W. Mullins, of Linneus, and D. M. Wilson, of Milan, for respondent.

estate to exceed $150, and that the large balances shown in favor of the estate in his settlements were not cash, but were "notes and property." The return then sets up a colloquy between the court and counsel immediately following the overruling of the motion, in which the court stated that in its opinion the probate court should ascertain what was due relator's ward and compel a settlement of the estate. Then counsel for relator said: "There can be no question, under directions of the Court of Appeals, but what this ward should have been paid $5,000." The court answered: "The opinion may have been written on that assumption, but that was not the question presented, that was not the question being argued, and that question was not, as I find from the record, directed to the attention of the court. If that was the basis for the directions to this court, why then it was without proper foundation, because the record does not show any ascertainment as to the amount. If this case had been tried in the probate court, and that court had found the amount due, and that appeal was brought here," etc. The circuit court then again refused to follow the directions contained in the mandate of this court, and again ordered the case transferred to the probate court, whereupon relator, in behalf of his ward, instituted this proceeding.

oral testimony. The return further showed that the court found the evidence of the executor was true, and that it was not affected by the pleadings in the cause and the several settlements made by the executor. The court considered that the petition and answer upon which the cause had been heard originally by the probate court and then, successively, on appeal by the circuit court ELLISON, J. This is an original proceed- and this court, were not a concession that ing in this court whereby relator seeks, $5,000 was due relator's ward if she was through our writ of mandamus, to compel not cut out by the indebtedness of her father respondent, as judge of the circuit court of to her grandfather. The court further Sullivan county, Mo., to obey the mandate | found, as stated by the executor in his testiof this court issued in the cause of Watten- mony, that he had not cash funds of the barger v. Payne, reported in 162 Mo. App. 434, 145 S. W. 148. An alternative writ was issued and return thereto has been made. Relator, concluding that the return presented no defense to the alternative writ, has filed a motion for judgment that the writ be made peremptory. The immediate question before us arose on relator's motion or suggestion in the circuit court to carry out the mandate of this court. The return discloses clearly the theory which has governed the action of the trial court throughout the proceedings. The order of this court, when the judgment was rendered, was that the judgment of the circuit court would be reversed and the cause remanded to that court, with directions to it "to find for the plaintiff the sum shown to be due" him as such guardian. The returns shows a refusal to obey this direction, and the reasons entertained in justification of the refusal. The reasons may be said to be two in number-one that this court did not determine that any sum was due the guardian-that it merely determined that she was entitled to the legacy left to her father, discharged of his indebtedness to the grandfather. The other was that it could not determine or pass upon the amount due relator, since the estate was yet in course of administration, and the probate court was the only court which could carry out the mandate of this court, and therefore it (the circuit court) ordered the case transferred back to the probate court, with directions to the latter court "to ascertain the condition of the estate, and find exactly what is the amount due this child and then enter judgment for it." The return shows that that court refused to follow the directions of the circuit court, and that it proceeded to make an order in the premises, from which the executor appealed to the circuit court. On this appeal evidence on part of the relator was heard, consisting of the original petition of the guardian in the probate court, asking that the executor be required to pay him for his ward $5,000, being the amount he had paid the other legatees, and the executor's answer to such petition, as well as the several settlements of the executor, together with the mandate of this court. The evidence on the

It will be observed from the foregoing that the respondent, as judge of the circuit court, did not consider that the right of relator's ward to the sum of $5,000 had been adjudicated by this court; and, as it had not, he, as such circuit court, could not do so, since that, in his opinion, was the province of the probate court. We have therefore undertaken to inquire if there is a sound basis for that view. And first we will remark the total misunderstanding of the directions of this court. We did not cast upon the trial court the duty to try and to determine what sum was due relator's ward. That had clearly appeared from the start, and as the trial court had found against her, we reversed the judgment and directed that it find for her in the sum which had been confessed to be due her.

[1] When relator's appeal from the probate

estate of the said Addison in an amount largely in excess of what his distributive share, devise, or legacy would be, to wit, in an amount exceeding the sum of $7,000. Wherefore the said executor prays the court that said motion be overruled and said petition denied, and the costs of this proceeding be taxed against the petitioner."

latter, it could and should have rendered any will, because his estate is indebted to the judgment on that appeal which the probate court could and should have rendered; and, failing in that, this court, in the exercise of appellate authority, could direct it to do so. [2-4] What the judgment of the probate court should have been, under the law that the child took the legacy of her father without being charged with her father's debt to the testator, is made quite plain by the pleadings of the parties. Relator's petition was filed in the probate court after the executor's second annual settlement had been made, in which was shown partial distribution of the estate to the legatees in the will, aggregating $28,189, of which, after paying all the special legacies, $5,000 each was distributed to the children of the testator, except this child's deceased father and a part of the share due Mrs. Kelly, a daughter, the balance of which the executor paid on the request of her attorney, and showing a net balance due the estate of $19,136.68, after taking credit for $2,472.80 as 5 per cent. commission on a total of over $49,000, appearing by such settlement to have passed through his hands up to that time. The petition, after proper allegation of the will and of relator's ward, being the only child and heir of Daniel S. Payne, one of the testator's children and equal residuary legatee with the other children, and that he died a few weeks prior to the testator, and that she (the ward) in consequence took from her grandfather (the testator) a share equal to that of the remaining children as residuary legatees, alleged the distribution to the others as set forth in the settlement, and that she was entitled to a distributive amount equal to theirs, but that the executor refused to pay her. The prayer of the petition was as follows: "Wherefore, this curator moves the court to order and direct said executor, Reuben Payne, to distribute and pay over to this curator, for the use and benefit of this ward, the said Ruth I. Payne, the sum of $5,000, and such other and further sum or sums as may be due her as legatee aforesaid, and for all proper orders in the premises." The answer to this petition was in the following words: "Reuben Payne, executor of the will of Addison Payne, for his answer to the petition and motion of J. M. Wattenbarger, curator of Ruth I. Payne, for partial distribution, says that said curator is not at this time entitled to the sum of $5,000, nor to any sum whatever. For that because the said Ruth takes, not by inheritance of her grandfather, the said Addison, seeing that he died testate, but by virtue of the statutes in such cases made and provided takes the estate that her The extreme length to which the executor father, Daniel S. Payne, a devisee in said went in his effort to avoid the legitimate will, would have done had he survived the result of his defeat in the litigation between testator, and not otherwise. And for that himself and relator well illustrates the frailbecause her said father, if living, would not ty of his reasoning and the absurdity of his be entitled to any distributive share of said claim. He testified that, notwithstanding he

These pleadings show clearly an allegation of $5,000 being due relator's ward as her distributive share under the partial distribution set out therein; and they show a denial of that claim only for the reason that her deceased father, as original legatee, died owing the testator more than his legacy, and for that reason only the court should refuse to order him to pay her as he had the others. The specific sum alleged to be due stood confessed, unless it was canceled by the debt her father owed the testator, which was set up as the reason he had not paid her as he had the others. So, on appeal to the circuit court, the facts were agreed upon, in which the sole defense claimed was that the ward was not entitled to the $5,000 claimed, on account of her father being indebted to the testator. And so the trial judge understood it, for it is recited in the judgment itself that the court, "after being fully advised in the premises, doth find that the estate of Daniel S. Payne, the father of the minor Ruth I. Payne, is insolvent, and that the said estate is indebted to the estate of Addison Payne, Sr., in an amount in excess of the distributive share of the said Ruth I. Payne in said estate, to wit, in the sum of $6,900. It is therefore ordered, adjudged, and decreed by the court that the petition of the plaintiff, praying that the executor distribute and pay over to him for the use and benefit of his ward the sum of $5,000, be and the same is hereby denied, and the said petition dismissed, and the costs," etc. Thence the case was brought to this court on appeal, wherein the entire face of the record is a concession that the sum of money ($5,000) paid to the other residuary legatees should be paid to this relator for his ward unless her claim was nullified by the indebtedness of her father to the testator. This was answered in the opinion of this court reversing the judgment of the circuit court, directing that court "to find for the plaintiff the sum shown to be due." Not a sum to be shown to be due-not what the result of further litigation might thereafter show to be due-but what the record then present before us showed to be due, viz., $5,000 and interest.

[5] These views show that the trial court has misunderstood the direction given to the circuit court in the words "to find for the plaintiff the sum shown to be due," else it doubtless would have immediately rendered judgment that the executor distribute and pay over to the relator, for the use of his ward, the sum of $5,000 and interest from the day (at least) of relator's petition to the probate court. This misunderstanding of the direction of this court probably arose from the fact that the personnel of the trial court changed; the newly elected judge who received the mandate not being the judge who tried the case. These views also relieve the case of the embarrassment suggested by the trial court in it being required to enter into a trial and investigation as to the sum due the ward. That, as has been herein explained, has been all along ascertained and admitted. And when it received the mandate of this court, it had no power or authority to go outside of or beyond the directions given, or to do otherwise than as therein required to do. Stump v. Hornback, 109 Mo. 272, 277, 18 S. W. 37; Rees v. McDaniel, 131 Mo. 681, 33 S. W. 178; Fanning v. Doan, 146 Mo. 98, 47 S. W. 896.

probate court, each of which showed a large | §§ 240, 235, 69–71; Bliss on Code Pleading, cash balance of many thousands of dollars § 340. in his hands belonging to the estate, after deducting the distributions mentioned and his commission of 5 per cent. on $49,416.76 (the one at the time relator asked for his ward's share showed $19,136), yet that he had no cash save, perhaps, $150, that though he reported sales of real estate ostensibly for cash at prices ranging from $23,640.80 down to $950, this was sold on time, and notes taken for the principal part of the purchase money, and that notwithstanding he reported in such settlements, sworn to by him, that he had paid out the distributive shares aforesaid, he had in reality conveyed real estate to the legatees for such shares, taking their notes for the excess of the purchase price over the distributive shares. He was thus allowed to traverse his sworn settlements, his pleading, his continued admission throughout the length of the litigation. He was allowed to show that white was black, that cash was credit, and that a prosperous estate with large cash balances was a myth. These things should not have concerned the trial court. The executor had chosen his ground and laid out his course without that court's knowledge, and it is in no wise responsible for his action, except to see that he abides by it. The executor, if he had any [6] But it is suggested that the return reason, aside from the legal question, for shows another matter which should deprive refusal to pay over this child's share, should relator of the right to demand that the cirnot have held it back and relied upon only cuit court comply with the directions of this one as the reason he had not paid her. He court, which matter is stated to be the right cannot be allowed to divide up his different to appeal, and that when the circuit court redefenses and demand that relator shall sue fused to comply with such directions, and him as many times as his defenses may num- transferred the case to the probate court with ber. One case should end the controversy directions for that court to comply with the over all matters then existing. mandate of this court, relator did not appeal, Aldridge, 231 Mo. 124, 132 S. W. 1050; Spratt and that on the executor's appeal to the cirv. Early, 199 Mo. 491, 500, 97 S. W. 925; cuit court from the probate court's order, reDonnell v. Wright, 147 Mo. 639, 647, 49 S. W. lator moved to dismiss the appeal, and after874. Though the original case was in the wards to strike it from the docket, and for probate court, formal pleadings were filed, the court to proceed to obey the mandate of and his plea does not deny (nor, as we have this court, and when these motions were deshown, was there ever any denial), generally nied, relator did not appeal therefrom, but or specially, the allegations of the petition began the present proceeding. It is true that setting up the ward's right to the distributive mandamus will not be permitted to perform share paid the others. It is stated in such the office of an appeal, and does not lie when plea that she was not entitled to the sum an appeal affords a remedy (State ex rel. v. of $5,000 "for that because" she did not take Fort, 180 Mo. loc. cit. 108, 109, 79 S. W. from her grandfather, testator, by inheri- 167; State ex rel. v. Lubke, 85 Mo. 338; tance, but from her father by virtue of the State ex rel. v. Buhler, 90 Mo. 560, 3 S. W. statute, "and for that because" her father, 68; State ex rel. v. County Court, 109 Mo. if living, would not be entitled to a distribu- 248, 19 S. W. 23), and will not be issued to tive share on account of his indebtedness to compel a certain judgment to be rendered the testator; she being only entitled to her (State ex rel. v. Smith, 105 Mo. 6, 16 S. W. father's interest. His plea was practically 1052). But these rules of law are founded a confession and avoidance, and, his avoid- on the assumption that the matter in conance having failed, his confession stands. troversy is a proper subject of trial and judgHis plea was a tacit admission "that inde- ment thereon in the tribunal complained of. pendently of the matter disclosed in the If it were necessary to appeal from the reanswer, the plaintiff would have a right of fusal of a judicial tribunal to perform its action." 1 Chitty on Pleading, star pp. 551- duties in relation to matters already fixed,

Emmert v.

writ of mandamus would be greatly lessened, a forfeiture until after the ground for forfeiture and its benefits much curtailed. In instanc- has occurred.

PATTERSON v. AMERICAN INS. CO. OF of the insurer to cancel the policy, the receipt