| Mo. Ct. App. | May 11, 1886
Lead Opinion
delivered the opinion of the court.
In 1872 the plaintiff recovered a judgment, in the probate and common pleas court of Greene county, against John H. Woody, as administrator of the estate of A. Woody, deceased, for damages in the sum of six hundred dollars for the deforcement of her dower by A. Woody in Ms lifetime, and afterwards by John H, Woody, his administrator. This judgment was, by the probate and common pleas court of Greene county, ordered to be certified to the probate court of Christian county for allowance against the estate of A. Woody, deceased, there in course of administration. A transcript of this judgment was presented to the probate court of Christian county, and ordered to be placed in the fifth class of claims against the estate of the said decedent. From this order of classification John H. Woody, the administrator, appealed to the circuit court of Christian county, by which court the order was affirmed. From this judgment of affirmance John H. Woody again appealed to the supreme court, in which court the judgment was again affirmed. Brown v. Woody, 64 Mo. 547" court="Mo." date_filed="1877-04-15" href="https://app.midpage.ai/document/brown-v-woody-8005593?utm_source=webapp" opinion_id="8005593">64 Mo. 547. This was in 1877, twelve years after the deforcement of the plain tiff’s dower had taken place. In 1882, J. O. Woody, administrator de bonis non of the estate of A. Woody, deceased, successor to John II. Woody, filed Ms final settlement in' the probate court of Christian county, showing that the personal assets of the estate had been fully administered and that there was a balance due him as administrator, whereupon an order was entered that he be discharged. It also apjoears that thereafter, upon a petition presented by J. C. Woody, administrator de bonis non of the estate of A. Woody, deceased, an order was made in 1883, by the probate court of Christian county, to sell certain lands belonging to the estate of A. Woody, deceased, situated in Greene county, • to satisfy the above named judgment of this
To satisfy the residue of this judgment the plaintiff, after having given notice to the administrator, as required by the statute (Rev. Stat., sect. 150), presented her petition in the probate court of Christian county, praying for the sale of certain lands of the decedent situated in that county. From the order made upon this petition by the probate court of Christian county, an appeal was prosecuted to the circuit court of the same county. The circuit court made an order of sale, as prayed for in the petition, and from this order the present appeal is prosecuted to this court,
I. The first point made by the appellant is, that the order of sale is erroneous, because it appears from the record of the cause in the probate and common pleas eourt of Greene county, which resulted in the judgment in favor of the plaintiff, that the judgment was rendered for damages for the deforcement of her dower, and that, under section 2228, Revised Statutes, such a judgment can only be enforced by execution against the estate in which dower was assigned. This precise question was presented to the supreme court on the appeal from the order of the probate court of Christian county, classifying this judgment as a demand against the- estate of A. Woody, deceased, and it was held that it was not well taken, because the statute does not apply in respect of the estates of deceased persons, against which no execution can issue. Brown v. Woody, 64 Mo. 547" court="Mo." date_filed="1877-04-15" href="https://app.midpage.ai/document/brown-v-woody-8005593?utm_source=webapp" opinion_id="8005593">64 Mo. 547, 551.
II. The next objection is that the classifying of the judgment in the probate court of Christian county was void, because it appeared by the judgment itself that a portion of the damages accrued subsequent to the death of A. Woody. A conclusive answer to this is, that in the case just cited, the supreme court affirmed the judgment ordering the classification, and we have no power to re
III. The question of the jurisdiction of the probate and common pleas court of Greene county to render the judgment which was thus classified, was presented to the supreme court, in the case already stated, and decided in the plaintiff ’ s favor. • It is, therefore, not open for re-examination here.
IV. A declaration of law was asked by the defendants embodying the principle that the judgment of the probate and common pleas court of Greene county could be attacked in this proceeding for fraud. The defendant Woody is precluded from setting up this defence upon well understood principles, this being a proceeding collateral to the Greene county judgment, and he being a privy thereto, it having been obtained against his predecessor in the office of administrator of A. Woody. The defence seems to be open to the other defendants, who are strangers to that record. Callaban v. Griswold, 9 Mo. 784" court="Mo." date_filed="1846-01-15" href="https://app.midpage.ai/document/state-ex-rel-mcmahan-v-hamilton-6611657?utm_source=webapp" opinion_id="6611657">9 Mo. 784, 792. But they have not availed themselves of it by offering any evidence tending to show fraud or collusion in that judgment.
V. The objection that no order of sale could be legally made, because the administrator failed to file the accounts, lists, and inventories which are required in such a case to be filed by section 151, Revised Statutes, does not seem to be well taken. It is true that, under the terms of this section, he could have been required to file such lists by at
VI. The failure to state in direct terms in the petition that there were not personal assets in the hands of the administrator, out of which to pay the plaintiff ’ s demand, •ought not, in this case, to work a reversal of the order of sale, because this is stated inferentially in the petition, is conclusively proved, and, in fact, not disputed, and the effect of a reversal would be merely to reverse a judgment in order to allow the petition to be amended.
VII. There is no just foundation in the record for the contention that the remedy of the plaintiff, if she has any, is an action against John H. Woody, the former administrator, upon his official bond, for a devastavit. The rule is not doubted that where an administrator misapplies the personal assets so that, upon aproper accounting, there would be found enough in his hands to pay the
YIII. The order of sale, as drawn, directs the sale to be made by the plaintiff instead of by the administrator. We do not see that the statute anywhere in direct terms prescribes that the sale shall, in all cases, be made by the administrator, though section 167, Revised Statutes, seems-to contemplate this. In this case the administrator is personally interested in preventing the sale, and defends in his personal as well as in his representative capacity. He may, therefore, be an unfit person to make the sale. For the same reason the plaintiff is an unfit person to make it, and there seems to be no warrant in the law for directing the plaintiff to make it. This clause in the order of sale was probably the result of a clerical error, and we are asked to direct the court below in what manner to amend it. We can not affirm an order which, on its face, is irregular, and at the same time direct its correction.
We must reverse the order as made and remand the cause, directing the circuit court of Christian county to amend the order so as to require the administrator to make the sale. It is so ordered. Lewis, P. J.s concurs; Rombauer, J., dissents.
Dissenting Opinion
delivered a dissenting opinion.
I am unable to concur with my associates. The judgment which was recovered by the plaintiff in the probate and common pleas court of Greene county, and which is the foundation of this whole proceeding, was under the provisions of the statute, a claim enforceable only against the estate in which dower was assigned, and against no other property whatsoever.
The language of the statute is clear and unambiguous. It provides that: “In all cases of judgments for damages or yearly allowance, in favor of any widow, * * * ■execution thereof shall be awarded only against the estate in which dower shall have been assigned.” Rev. Stat., sect. 2228.
It is not pretended that had Abraham Woody lived a general execution could have been issued against him on this judgment, because the statute made it a lien and claim exclusively on the estate in which dower was assigned. When that estate was exhausted the claim was exhausted likewise. That it was exhausted in this instance, by sale of all the lands in which the dower had ■been assigned, upon an order of sale issued on this judgment, stands admitted by the record.
My associates contend that argument of this question is precluded by the opinion of the supreme court on the former appeal (64 Mo. 551). They contend that when the supreme court upheld the classification of this judgment, as a demand against the estate of A. Woody, that court-
I differ from my associates in their interpretation of the opinion of the supreme court. That court, in my opinion, never intended to announce the startling proposition, that the rights of any claimant can be greater against the heir and representative, whose liabilities are derivative, than they were against the ancestor or decedent in whose shoes they stand. That court was as powerless to overrule the statute as this court is, and the intent of the statute can not be misunderstood.
What the supreme’court, in my opinion, intended to say, and what it really did say, was simply this. As no. execution, technically speaking, can be issued against the estate of a decedent, claims of this character, although they áre claims against' part of the estate only, have to be enforced through the instrumentality of the administration laws.
Giving that interpretation to the opinion of the supreme couit, and it will be found that its language is thoroughly consistent throughout, and does no violence to the clear intent of the statute above referred to.
In my opinion, judgment should be entered for the appellants in this court, upon the facts admitted by the record.