County First National Bank v. O'Neill

WARD, J. This is an appeal by the County First National Bank, assignee of the interest of John J. O’Neill in the Estate of Frank O’Neill of which he was formerly administrator. The appeal, taken on the judgment roll, is from the Decree of Settlement of Third Supplemental and Final Account and Decree of Final Distribution wherein it was held that appellant was not entitled to share in the estate.

The basis of the decision denying appellant any rights by virtue of its assignment was that the assignor, who became indebted to the bank while acting as administrator of decedent’s estate, had, before his removal, appropriated to his personal use property of the value of $79,848.41, a sum in excess of his share of the estate.

Appellant filed objections to the Second Supplemental and Final Account and Petition for Final Distribution of the respondent administratrix (successor of its assignor) wherein it urged its claim as assignee. After hearing, the court on Hay 25, 1937, made findings of fact and conclusions of law to the effect that appellant was not entitled to share in the estate and that the administratrix was entitled to have the account settled and the petition for distribution granted. A decree was entered approving the account and adjudging that appellant was not entitled by virtue of the assignment to share in the estate. The decree did not distribute the estate although the findings of fact and conclusions of law had ordered the petition for final distribution granted.

A Third Supplemental and Final Account was subsequently filed, accompanied by a report stating that the estate was in a condition to be closed and that distribution should be made. However, no separate instrument entitled “Petition for Distribution” was filed. A time was fixed for hearing the account and an order made setting the same time for a hearing upon the previous petition for distribution. Appellant filed objections averring that “this last petition” was not properly before the court for the reason that the issue had been previously determined. On the date of the hearing a minute order was made to the effect that the account was approved and that the petition for distribution and the objections thereto “are taken under advisement”. The decree rendered some time thereafter recites that it was stipulated at the hearing that the findings of fact, conclusions of law and decree theretofore rendered on the hearing of the Second [598]Supplemental Account should be considered the findings, conclusions and decree to the objections filed by plaintiff to the Third Supplemental Account. The effect of this last decree dated April 13, 1939, is a judgment that appellant has no interest in the estate. Both decrees, the 1937 and the 1939, were adverse to appellant’s objection to distribution. The appeal herein is from the 1939 order but the record does not include evidence of the proceedings of either occasion.