56 Mo. 357 | Mo. | 1874
delivered the opinion of the court.
This was a proceeding in the nature of a bill in chancery to set aside, as fraudulently made, the annual settlements and the final settlement of the estate of John P. Cabanne, deceased— Edward P. Tesson being executor of the last will of the decedent —for taking an account of the sums of money received by Tesson during the course of his administration, and for judgment in favor of plaintiffs, who claim as residuary devisees and legatees of Cabanne, against said executor and the sureties on his bond. The petition is as follows:
Petitioners state, that John P. Cabanne, the brother of the petitioners, died on or about April 18, 1863, having made and published his last will, bearing date September fifteenth, eighteen hundred and sixty, which said will was duly proven
And subject to said bequest and devise, said John P. Cabanne bequeathed and devised the rest, residue and remainder of his estate, real, personal and mixed, to his brothers, the plaintiffs, Joseph O. Cabanne and Sarpy C. Cabanne, in equal shares as tenants in common.
The petition further states, that on May 1, 1863, said Edward P. Tesson duly qualified as executor, and gave bond to the State of Missouri in the penal sum of forty thousand dollai’s with the said defendants, Robert Eorsyth and Pierre A. Bertkold, as sureties, as required by law. Said bond was subject to a condition, that if the said Edward P. Tesson, executor of the last will and testament of said John P. Cabanne, should well and faithfully execute the said last will and testament, and should make true and faithful inventories, returns and settlements of account of the estate of the testator according to law, and should moreover do and perform all other matters and things touching the execution of said last will and testament as are or shall be prescribed by law or enjoined on him by the order, sentence or decree of any court having competent jurisdiction, then said obligation to be void, otherwise to remain in full force.
And thereupon letters testamentary, dated May 1, 1863, were by said St. Louis Probate Court duly issued to said Edward P. Tesson, as executor of the last will of said John P. Cabanne, and it thereby became and was the duty of the said Edward P., as executor, to look after and protect the property of the said John P. Cabanne, wherever situate, for the benefit of the creditors of the said John P. and his legatees and devisees, and especially-for the benefit of the plaintiffs as residuary legatees and devisees of the said John P. Cabanne.
On or about April 1, 1861, said John P. Cabanne formed a co-partnership with Lamar E. Súber, who had been a clerk for Edward P. Tesson, and with Edward M. Tesson, a son of said Edward P., for the purpose of working said Bobtail Lode Gold mine, and other mines. The articles of said co-partnership were reduced to writing.
By the terms of said articles, it was agreed that said John P., Lamar E., and Edward M. should be jointly interested in the profits and losses of working said Bobtail Lode Gold Mine, each taking one-third ,of the profits, and paying one-third of the losses, but that said Súber and Edward M. did not purchase any part of the title, interest or estate of the said John P. in the realty of said mine, and by the terms of said articles, the title and ownership of said mine remained in said John P. Cabanne, and any title and interest remaining in said John P. at the time of his death vested in the plaintiffs as devisees, subject to debts due by him.
The petition states, that Edward P. Tesson was doing a banking business in the city of St. Louis from the year 1860 to the year 1861, under the name and style of Tesson and Danjen, and from the year 1861 to the date of his bankruptcy, in 1868, did business under the name and style of Tesson, Son, & Co., part of the time the firm being composed of the said Edward P. Tesson, Lamar E. Súber and Edward M. Tesson, the said Sober dying about A. D. 1865, and said Edward M. continuing until Jauuary 3, 1868, when said firm was adjudged bankrupt; that said Cabanne, Súber and Edward M. Tesson worked said Bobtail Lode Gold Mine, and other mines and mills for about two years, but made no profits to be divided, and became indebted to said Edward P. Tesson, doing business as Tesson & Danjen, in a large amount, but to what amount your petitioners cannot accurately state, but with ten
The petition alleges, that on April 19,1867, said Edward P. Tesson presented to Lucien D. Cabanne, guardian of the plaintiffs, an account charging the estate of John P. Oabanne with the sum of $2,222.59 as the balance found in his favor at his final settlement, and also with $5 retained for expenses of final settlement, whereas said sum of $2,109.59 was the true sum allowed, and included said sum of $5; and said Edward P. also charged said claim in favor of T. K. Richardson, allowed December 28, 1863, and also charged $289.85 as interest on the same, the whole of said account amounting to $4,397.78, which was paid out of the moneys of the plaintiffs by their said guardian, the said Edward P. having had the moneys of the plaintiffs in his hands since May 19, 1864, employing the same in his banking business at the rate of ten per cent, per annum, and charging that rate against the plaintiffs in his account paid by said L. D. Cabanne as guardian of the plaintiffs; that said plaintiffs,
Although the said Edward P. Tesson, executor of the said John P. Cabanne, having failed to present his demands against the estate of John P. Cabanne for allowance to the St. Louis Probate Court, was barred by the Statute in such cases made and provided, from retaining his demand out of any money received by him as executor, yet the plaintiffs being willing to do equity, are ready to allow all just claims in favor of said Edward P. Tesson, or of Tesson & Danjen, or the subsequent firm of Tesson, Son & Co. against said John P. Cabanne, or said firm of Cabanne, Súber & Tesson, and they are willing an account should be taken and stated upon the terms of allowing the demands of said Tesson, and Tesson & Danjen, allowing payments made after final settlement in the Pro
They state, further, that in a proceeding in the United States District Court, by these plaintiffs against Robert K. Woods, assignee in bankruptcy of said Tesson, Son & Co., and of said Edward P. Tesson, an account was taken and stated, of the amount due by said Tesson, as executor, to these plaintiffs, and a balance was found due the plaintiffs, with interest to the date of the bankruptcy on Jan 6, 1868, of the sum of $18,-030.75. Any dividend they may receive upon said allowance,, they will credit upon the demand made in this suit against the defendants.
In consideration of the premises, plaintiffs pray, that said final settlement of his administration of the estate of said John P. Cabanne, made by said Edward P., as executor as aforesaid, and the said annual settlements may be set aside as fraudulently made; that an account may be stated of said sum of forty-nine thousand nine hundred and thirty-seven dollars and fifty cents received by said executor on May 29, 1864, from the sale of the said Bobtail Lode Gold Mine belonging to said John P. Cabanne, and in his will devised to the plaintiffs, showing what sum is justly due the plaintiffs, after allowing all debts due by said John P. Cabanne to said Edward P. or to said Tesson & Danjen, or to said Tesson, Son & Co.; and that, for the balance thus found due, plaintiffs may-have judgment against the defendants for the penalty of said bond, to be satisfied by the payment of the balance thus found due; And that they may have such other and further relief as to the court may seem meet, etc.
The defendants demurred to this petition, assigning as grounds for their demurrer :'
•First — That the said amended petition does not state facts sufficient to constitute a cause of action against this defendant.
Second — That said amended petition shows, that the proceeds of the sale of said Bobtail Lode Gold mine, and the said
Third — That the acts and doings of said defendant, Tesson, if true, would make him accountable as trustee in a court of equity for the-profits he made in the purchase of said certificate from the said Lathrop, but do not make him accountable as executor, for the reason, among others, that the said gold mine was real estate, not subject to be administered according to or under the laws of this State.
Fourth — The amended petition does not show any sufficient reason why the accounts of said Tesson should be overhauled, or his settlements in the Probate Court set aside.
The petition was adjudged insufficient, and plaintiffs declining to amend, judgment on account of such insufficiency went against them. The propriety of this ruling will now be considered.
So far as concerns the realty, a will beyond the jurisdiction where it is probated is inoperative, and has no extra-territorial force or validity ; and the executor of such will cannot, because of his appointment in accordance with the laws of one State, thereby acquire authority to sue for, or in any manner intermeddle with, the property or effects of his testator, whether real or personal, in another State, unless the will be there proven, or the daws of such State dispensing with the probate anew confer the requisite permission. (Kerr vs. Moon, 9 Wheat., 565; Doe vs. McFarland, 9 Cranch., 151; Sto. Conf. L., §474; McCormack vs. Sullivant, 10 Wheat., 192; Lucas vs. Tucker, 17 Ind., 41; Wills vs. Cowper 1 & 2 Ohio, 312.)
Under the circumstances then, as detailed in the petition, Cabanne, the testator, must be regarded as having died intestate as to whatever lands in the Territory of Colorado he was possessed of at the time of his decease; and those 1 ands of course,
It being out of the power of the executor, as such, to have any control over, or right to interfere with, the property situate in Colorado, it must inevitably follow, that neither he nor his sureties can, in consequence of any acts done in Colorado, be held liable on the bond given for the faithful performance of the duties pertaining to the executorship in this State.
Whether Edward P. Tesson could, under proper averments made by the proper parties, be held chargeable as trustee for the misapplication of the funds received, it is wholly unnecessary to discuss, as no such case is here presented ; the petition being drawn on a widely different theory, and looking to a recovery on the hond alone.
Again, it is not shown whether the money collected, with which the purchase of the certificate of sale of the Bobtail Lode Gold Mine was effected, belonged to the estate of the testator, or to the firm of Cabanne, Súber & Tesson, and if to the latter, the credit for the amount realized from the sale in New York of the mine was rightly given and entered on the books of Tesson & Dan jen, in favor of the firm whose funds purchased the certificate from Lathrop.
Any responsibility, therefore, which would attach to Edward P. Tesson in consequence of his mis-appropriation of the funds of the firm above referred to, would have existence only as between him and the representatives of said firm.
The petition exhibits other objectionable features, which, although not unobserved, will, as they are not pointed out in the demurrer, pass unnoticed.
1st. No right nor capacity is shown on the part of the plaintiffs to sue.
2nd. The money was not collected by the executor as executor.
3rd. To whom the money belonged, with which the purchase of the certificate of sale was obtained, does not appear.
1th. And - from aught to the contrary appearing, the money realized in New York was properly credited to tlm firm of Cabanne, Súber, & Tesson.
In consequence of the foregoing, the petition stated no cause of action, and the judgment will be affirmed.