rehearing">

ON MOTION FOR REHEARING.

TRIMBLE, J.

It is suggested in a motion for rehearing that, if a rehearing is not granted, at least the opinion should be modified so as to remand the case to the circuit court with directions to ascertain and determine the amount due appellant as temporary administrator, instead of merely affirming the judgment of the circuit court which allowed the administrator nothing. The defense of respondent was that appellant was not entitled to any fees as permanent administrator because he had agreed to accept in lieu thereof only the amount due him as temporary administrator. This concedes that he is entitled to something, whatever that may be, as temporary administrator.

At first blush it would look as if appellant, having stated at the trial that he was not claiming for services rendered as temporary administrator, when respondent wanted to go into that matter, ought to be precluded from now asserting that he should be allowed a sum for such services. But the case came up from the probate court not upon a case precisely set out upon a petition filed by the administrator. It came up on the matter of the final settlement of the estate. The question before the probate court was what shall be allowed Mr. Zeidler, for his services. The probate court *279thought he should be allowed regular statutory fees of five per cent as permanent administrator, and made the allowance accordingly. The estate appealed. When it came before the circuit court, that tribunal’s duty was to hear the entire question de novo and render whatever judgment the law and tbe evidence warranted, that is, whatever judgment the probate court should have rendered. The evidence showed that Zeidler was not entitled to fees as permanent administrator but was entitled to a reasonable compensation as temporary administrator. Respondents’ defense conceded this. Upon finding that Zeidler was not entitled to the pay of a regular administrator, the court should have determined the amount reasonably due him as temporary administrator, since the circuit court’s duty is to “hear, try and determine the same anew, without regarding any error, defect or other imperfection in the proceedings of the probate court. ’* [See. 296, R. S. Mo. 1909.] The duty of the circuit court was to hear the case anew and affirm the order of the probate court if just and correct, but if not, to render such judgment as the probate court should have made. [Elstroth v. Young, 78 Mo. App. 651.] The evidence showed that a reasonable fee was due Zeidler as temporary administrator. The circuit court should, therefore, have found what that was and ordered its allowance. Instead of this, the circuit court adjudged that Zeidler should take nothing. If now that judgment is affirmed in toto, the probate court must, under the direction of that judgment, close the estate allowing the administrator nothing for his services although the defense is bottomed on the claim that he is entitled to pay as temporary administrator. We do not think that merely because Zeidler insisted on claiming pay as permanent administrator and stated, through his attorney, that he was not asking for fees as temporary administrator he should be deprived of what was really due him or that he should be deemed *280to have forfeited it. He was not asking for temporary fees only because he was going on the theory that he was entitled to fees as permanent administrator which were greater and necessarily included the lesser. The finding of the circuit court that Zeidler is not entitled to fees as permanent administrator .should be, and is approved, but that part of the judgment holding that he is not entitled to anything is reversed and the cause is remanded with directions to ascertain what would be a reasonable fee for his services merely as temporary administrator and order its allowance. Inasmuch, however, as the trial court’s action was induced by the appellant, this modification of our judgment ■should in no way affect the question of costs on appeal. They should go the same as if the judgment had been affirmed in all respects, and this modification is made conditional upon that being done.

Johnson, J., concurs. Ellison, P. J., dissents in a separate opinion on motion for rehearing.

Citation profile

Relationships

How this case has been treated — in progress