
    In re ESTATE WILLIAM McNEELY, Deceased, Appellant, v. JOHN F. IMEL, Judge Probate Court, Respondent.
    Kansas City Court of Appeals,
    December 6, 1909.
    1. ADMINISTRATION: Practice: Appeal. An order of tlie probate court authorizing the administratrix to use certain money of the estate for the erection of a burial vault for the decedent, is not a judgment or allowance settlement.
    2. -: -: -. Such an order is not a judgment or allowance against the decedent’s estate, nor is it an allowance of a claim under section 214, idem.
    3. -: -: -. The heirs at law could have appeared when such first annual settlement was filed and objected thereto, and if aggrieved by the judgment of the court they could appeal.
    Appeal from the Buchanan Circuit Court. — Hon. C. Á. Mosmcm, Judge. .
    Affirmed.
    
      
      James Moran for appellant.
    (1) Section 214, Revised Statutes 1899, provides, that, “If any . . . heir ... of an estate shall, within four months after any demand shall have been allowed, file in the office of the probate court the affidavit of himself or some credible person, stating that the affiant has good reason to believe, and does believe, that such demand has been improperly allowed, and shall furnish satisfactory evidence of that fact to the court, and further, that notice has been given the opposite party or parties in interest, the court shall vacate such order of allowance and try the matter anew, and allow or reject such demand, as shall be right.” (2) This section of the statute has the effect of placing a limitation of four months on the time, a judgment of allowance of the probate court shall go into effect, and during this period of time the order of allowance is interlocutory only. If any one of the persons named in the statute, shall file in the office of the probate court, the affidavit therein mentioned within four months the court must hear and pass on it; it has no discretion in the matter; if it refuses to set aside the former allowance, then, and then only, does the allowance become a judgment against the estate, and then and then only is it final. (3) Section 278, Revised Statutes 1899, provides that, “Appeals shall be allowed from the decision of the probate court to the circuit court in the following cases: . . . Fifteenth, and in all other cases where there shall be a final decision of any matters arising under the provisions of this chapter; and the right of appeal herein provided for shall extend to any heir, devisee, legatee, creditor or other person having an interest in the estate under administration.” (4) Hence it is that the court committed error in holding that no appeal lies from the refusal of the probate court to set aside its former order of allowance in accordance with the provisions of section 214, Revised Statutes 1899. Ruff v. Doyle, 56 Mo. 301; McCrary v. Menteer, 58 Mo. 446; In the Matter of Estate of McClure, 76 Mo. 205; Ferguson v. Carson, 86 Mo. 673; Keele v. Keele, 118 Mo. App'. 262; Moody v. Peyton, 135 Mo. 491. This case discusses sections 214 and 278 and bolds that an appeal lies from all orders and judgments of tbe probate court made under tbe provisions of section 214. Ferguson v. Carson, 13 Mo. App. 33; Donaldson v. Lewis, 7 Mo. App. 403. (5) Tbe allowance was improperly made, in this, that tbe probate court bad no power or authority to make an allowance in favor of tbe administratrix without appointing an administrator pendente lite to defend tbe interests of tbe estate. R. S. 1899, sec. 205; State to use v. Bidlingmair, 26 M'o. 483; Clark v. Fountain, 28 Mo. App. 34. (6) And as section 214 must be regarded as a remedial statute, it must therefore be liberally construed with a view to effectuate its manifest purpose. Authorities supra. (7) And tbe office and duties of an administrator are fixed and limited by law. He is in no sense of tbe term an agent, for back of him is no principal. His office is a naked trust and be can make no contract, nor perform any acts other than such as are connected with or incident to tbe execution of bis trust. Richardson v. Palmer, 24 Mo. App. 480-487; Byers v. Weeks, 105 Mo. App. 72. (8) And probate courts possess no power to allow any claim against on estate, except those in existence at tbe time of tbe death of tbe person whose estate is undergoing administration. Farrar v. Dean, 24 Mo. 16; Presbyterian Church v. McElhinney, 61 Mo. 542; Ferguson v. Carson, 13 Mo. App. 29-33; Garnett v. Carson, 11 M'o. App. 290.
    
      Kendall B. Randolph for respondent.
    (1) Tbe probate court may properly make an allowance for funeral expenses and for monuments .and vaults. A vault is a burial place and a monument combined. In re Danforth’s Estate, 66 Mo. App. 591; Argo v. Donover, 80 Iowa 214; Succession of Smith, 9 La. Ann. 107; Owens v. Bloomer, 14 Hun 296; Ticket v. Quinn, 1 Dem. Sur. 425; Laird v. Arnold, 42 Hun 136; Appeal of McGlinsey, 14 Serg. & B. 64; In re Connolly’s Estate, 28 Pittsb. Leg. J. 355; Moulton v. Smith, 16 R. I. 126. (2) The judgment of allowance of a demand by the probate court is as conclusive as is the judgment of any other court. Mason v. Gaither, 106 Mo. App. 357, citing Mundiay v. Leeper, 120 Mo. 417.
   BROADDUS, P. J.

This action was commenced in the probate court of the county and from there it was taken to the circuit court on appeal. The trial in the circuit court resulted in a judgment in favor of the defendant and plaintiff appealed.

We gather from the statement of the record, that defendant, as administratrix, on the 28th day of September, 1908, presented to the probate court the following petition:

“Comes now Dora McNeely, administratrix of the said estate, and petitions the Honorable Probate Court for an order authorizing her to expend an amount sufficient to provide for the erection of a vault as a burial place for the late William McNeely, and as grounds therefor states: That it was the expressed will and intention of the said William McNeely, prior to his death, to provide for the erection of said vault and he had contemplated the immediate erection of the same prior to his death; but that his death occurred before he had time to perfect the plans and complete the erection of said vault.
“Your petitioner further states that all of the debts that were due and owing against said estate have been paid and that the estate has ample funds to justify the court in ordering the administratrix to expend a reasonable sum for that purpose.”

On the same day the court heard the application of the administratrix and authorized her to expend for the purpose $1,750, and that she take credit for that amount in her first annual settlement:

On January 18, 1909, plaintiffs as heirs at law of the said McNeely presented their petition to the probate court asking that said order he vacated, ’ assigning several reasons therefor only one of which is of importance, viz.: That the court had no jurisdiction to make such order. On the 5th day of February, 1909, the petition or motion to vacate the order was overruled. From this action of the court the petitioners appealed. In the circuit court the administratrix filed a motion to dismiss the appeal on the grounds, that the court was without jurisdiction to hear the appeal; that the matter appealed from is not appealable; that the appeal is not taken from a final judgment; that the appeal is not taken from a demand allowed against the estate; and that it was not taken at the proper time and in the proper manner. The motion was sustained and the petitioners appealed to this court.

As there was no judgment or allowance against the decedent’s estate, nor any order of court, from which an appeal is provided for under section 278> Revised Statutes 1899, governing appeals in administration, the court properly sustained the motion. But plaintiff seems to think the case is governed by section 214, idem, relating to proceedings where an improper allowance has been made. The section does not relate to appeals. And as there had been no claim allowed there could be no appeal, even if it were permissible under the section.

The appellants, had they so elected, could have appeared in the probate court when the administratrix filed her first annual settlement and objected to the proposed allowance on the ground "'of want of jurisdiction in the court to make it, or for any other good reason, and then they could have appealed if they felt aggrieved by the judgment of the court. Or they could have appeared under section 214 and objected on the ground that it was an improper allowance against the estate.

We do not want to be understood as holding that if the court had no jurisdiction to allow the claim as a just demand against the estate the question could not be raised at any time before the close of administration or even afterwards.

As there was nothing in the case to appeal from, the judgment is affirmed.

All concur.  