Booker v. Armstrong

93 Mo. 49 | Mo. | 1887

Black, J.

Jacob E. Grove died testate in 1867, and William Booker qualified as executor in October of that year, and continued to act as the executor of the Grove will until Ms death in 1878, a period of ten years and some months. During all this time, there was a suit pending in the courts in which the validity of the will was contested. Samuel F.- Booker took out letters of administration on the estate of William Booker in April, 1878; and at the same time R. F. Lakenan was appointed administrator of the Grove estate, pending the will contest. On the 15th of July, 1879, Samuel F. Booker, as administrator of William Booker, filed in the probate ■court of Marion county, a settlement of the Grove estate. From the judgment of the probate court, an appeal was prosecuted to the circuit court, where, upon atrial anew, there was a judgment in favor of the Grove estate for $7,732.10, and Booker appealed to this court. While this suit was pending in the circuit court, Lakenan died ■and the defendant, Armstrong, was appointed in his place. The settlement filed in the probate court by Samuel F. Booker, as administrator of William Booker, is a copy of the eleventh annual settlement made by the late executor. Attached to this is a recapitulation.

The annual settlements are accounts current of money received, and paid out, and they show the total receipts to have been $41,514.24. The disbursements amount to the aggregate sum of $52,640.60, leaving abalance of $11,126.36 due to the executor. The recapitulation, on the one hand, charges the executor with all the notes and accounts included in the inventory, and, on the other hand, credits the executor with worthless notes and other evidences of indebtedness, turned over to Lakenan. Among the notes thus turned over is one known as the Pogue note. The debits of this exhibit ■amount to $66,313.47, and the credits to $77,439.83; thus again showing a balance due the executor of $11,126.36.

1. The executor, in his second annual settlement, took a credit, “For services from October, 1867, to October, 1868, $900.” A like credit, differing in amount, is found in each subsequent settlement, in all $8,699. These items are brought into the final settlement. These charges are generally made as for services at three dollars per day. The executor is entitled to the commissions of five per cent, on disbursements allowed by statute, but there is no authority in law for this per-diem charge. The bare statement of the claim condemns it. The executor received fair allowances for leasing property and such like services, which are not controverted here, and it is, perhaps, enough to say that these credits for per-diem services were not urged here in the oral argument and they will be disallowed, as they were by the circuit court.

2. The item of nine hundred dollars, for which a credit is claimed as interest on moneys advanced for the estate, appears in the settlement of 1877. Excluding from the executor’s credits, the unwarranted credits before mentioned and it then'appears there was no necessity for advancing money to the estate. It had enough of its own in the hands of the executor for all proper disbursements required to be made. It follows that this claimed credit must be excluded.

3. The next question arises over the Pogue note, and taxes paid on the Wardlaw land, for which a credit is claimed. The executor inventoried a note dated March 1, 1865, made by Geo. B. Pogue for $4,113, due in one year with ten per cent, interest, and payable to Mr. Grove, the deceased. A credit placed on the note on August 9, 1867, shows that the interest had been paid to April 20,1867. The note was secured by a, deed of trust of even date made by Pogue and wife, and H. H. Wardlaw and wife, upon fifty acres of land known as Wardlaw’s addition to the city of Hannibal; this deed of trust was recorded in December, 1867. From 1867 to 1872, this land is shown to have been worth from one hundred to one hundred and twenty-five dollars per acre, but after that it was of no greater value than forty or fifty dollars per acre. At the date of the inventory Pogue was and ever since has been insolvent. Neither Ward-law nor his heirs have ever made any claim to the land. In 1871, the late executor took some steps to prevent persons from trespassing upon it, but the land was not in the actual occupancy of any one. From and after ■November, 1875, but not before, the executor paid taxes on the land, in all amounting to $2,415.63. He never foreclosed, or made any effort to foreclose, the deed of trust.

On August 1, 1878, which was before this final settlement was presented to the probate court, Samuel F. Booker, as administrator of the estate of the late executor, turned over to Lakenan, administrator of the Grove estate, certain notes, including the Pogue note and Wardlaw deed of trust. Lakenan receipted for them as “worthless or in litigation,” and subsequently, and in December, 1881, tendered the note and deed of trust back to Booker, but he refused to accept them. It will be seen that the executor allowed the note to become barred by the ten-year statute of limitations relating to •personal actions. But the Grove estate could not have suffered any loss by reason of the failure of the executor to prosecute a personal action against Pogue, for he was and still is insolvent. In some states, it is held that when the note is barred the mortgage lien is barred. 2 Jones on Mortgages, sec. 1207. The same author, however, says, at section 1204, that “the fact that a debt secured by a mortgage is barred by a statute of limitations does not necessarily, nor as a general rule, extinguish the mortgage security, or prevent the maintaining of an action to enforce it.” Many authorities are cited by counsel for appellant, in their supplemental brief, in support of this doctrine, but they -need not be specially mentioned. It has been held in this state that, though the note or bond, secured by a mortgage or deed of trust, may be barred, so that no action can be maintained thereon, yet the mortgage maybe enforced by foreclosure or a sale under the deed of trust. Chouteau v. Burlando, 20 Mo. 483; Cape Girardeau Co. v. Harbison, 58 Mo. 90; Wood v. Augustus, 61 Mo. 46; Lewis v. Schwenn, ante, p. 26. In the case last cited, it is held that, to bar a foreclosure under a deed of trust or mortgage, it must appear that there has been ten years possession of the property adverse to, the mortgagee. In this case, there has been no such possession, and the deed of trust was available to the estate for what the land was worth, though the debt was barred by the statute of limitations.

The law holds an executor or administrator responsible for the want of due care in protecting the property of the estate from theft or loss, and the measure of the-care and skill which they are required to use is that which a prudent man exercises in the direction of his own affairs. State ex rel. v. Meagher, 44 Mo. 357; Foster v. Davis, 46 Mo. 268; Fudge v. Durn, 51 Mo. 264. So an administrator or executor is responsible for loss by the insolvency of the debtor to an estate, when he has failed to exercise the same care that a prudent man would exercise in the conduct of his own affairs. 3 Will, on Ex’rs [Am. notes by Perkins] 1910, and notes. There can be no doubt but the executor must use all reasonable diligence in collecting the assets of' the estate. And the burden of proof is upon him to-show that the debt due the estate could not have been collected by the exercise of proper diligence. Williams' Adm’r v. Petticrew, 62 Mo. 471.

It appears that Pogue, who was engaged in the tobacco business, was prosecuted by the United States in 1864, or 1865, and sentenced to imprisonment for six months, and there is evidence that it was the impression in the community that the government had some claim or lien on the land. It may be that such was the fact, and for that reason the executor would be justified in not making a sale of the land, but no certain proof is made that the government had, or claimed to have, any lien on the property, and we cannot accept the evidence of such a rumor as proof of the fact. For five years, the proof is, the land was of the value of the debt, and it was great negligence on the part of the executor not to foreclose the deed of trust during that time. Thereafter, the security became reduced in value at least fifty per cent. Had there been a total loss of the security, there can be no doubt but the estate of William Booker should be charged with the amount of the note, and also the ta.xes paid on the land, and that, too, even in this proceeding.

But there was not a total loss, and this is not a final •settlement of the Grove estate. It is a settlement under section 48, Revised Statutes, which, in substance, provides, that if any executor or administrator die, his legal representatives shall account for, pay, and deliver, to his successor, all money, real and personal -property of every kind, and all rights, credits,- deeds, evidences of debt of the deceased, at such times and in such manner as the court shall order on final settlement with such representatives, to be made on motion of the successor. In view of this, and other provisions of our administration law, it has been constantly held, that, on the death of an executor, the property of the estate remaining in his hands does not go to his representatives, but goes to the administrator de bonis non. State to use v. Hunter, 15 Mo. 490; State ex rel. v. Dulle, 45 Mo. 269; Scott v. Crews, 72 Mo. 261; State ex rel. v. Heinrichs, 82 Mo. 544. Mr. Lakenan occupies the position of an administrator de bonis non, here, at least, so far as this settlement is concerned. It is said there was an order of the probate court on Samuel P. Booker, administrator of the late executor, to turn over the assets to Lakenan, made in August, 1878, but if any such order was made, it is not preserved in this record, and, therefore, not before us. It does appear that on the first of August, 1878, Samuel P. Booker, as administrator of William Booker, turned over to Lakenan a long list of notes, accounts, and stocks, among which were this note and deed of trust. It was not until December, 1881, that Lakenan tendered them back, a period of over three years.

It may be that circumstances will arise where the estate of a deceased executor or administrator should be charged with the full amount of a note or other evidence of indebtedness, because of depreciation in value of the security by his negligence, though there is not a total loss. Here the note at all times as a personal demand was worthless. The note had a value to the extent of the market value of the land when it was turned over to the administrator de bonis non. He retained it for a period of three years and over, during which time the-land might have been sold by a simple sale made by the-trustee. In view of all this, and the principle of law before stated, we are of the opinion that the Booker estate-should be held accountable for the depreciation in the-value of the security, instead of the full amount of the-note and interest. The Booker estate should be charged with, or rather have no credit for, the taxes paid on this; land, for it should have been converted into money long-before 1875. The Booker estate will, therefore, stand charged with the note and interest, as stated in the-inventory, $4,318.50, but no more, for we are not satisfied that there ever was a time when a sale of the land would have produced a greater amount. The estate, instead of' being credited with the above amount, will be credited with two thousand dollars, the market value of the land in 1878, when Lakenan received the note. The Booker estate is entitled to five per cent, commission on legal disbursements, which commissions will be $1,973.90, whereas the estate is only-credited with $1,096.47. The difference should be added to the credits. The Booker-estate will thus stand indebted to the Grove estate in the sum of $2,179.34, for which amount, with interest thereon at the rate of six per cent, per annum, from July 15, 1879, judgment should be entered.

4. So far as interest on moneys in the hands of the-late executor is concerned, it is sufficient to say that tliere was no more in Ms hands at any time than he might well have retained, especially in view of the fact that there was a contest over the will during the entire .administration.

The judgment is reversed and the cause remanded, with directions to the circuit court to enter up a judgment in conformity herewith.

All concur.