Dryfoos v. Cullinan

17 Kan. 452 | Kan. | 1877

The opinion of the court was delivered by

Horton, C. J.:

This was an action brought by Cullinan in the court below, as administrator de bonis non of the estate of John Sanderson deceased, against Dryfoos and others on the official bond of said Dryfoos, as administrator of said estate, to recover moneys received by Dryfoos as such administrator. The petition charged that Dryfoos was guilty of waste and unfaithful administration. Dryfoos was appointed administrator August 17th 1870, and his letters of administration were revoked by the probate court August 1st 1874. Cullinan was thereupon appointed administrator de bonis non of the said estate of Sanderson deceased. The record shows that no settlement, annual or otherwise, was ever made by Dryfoos as such administrator, and no statement or voucher for any disbursements by Dryfoos for the benefit of the estate was ever filed in the office of the probate court. The only report or statement of the assets and liabilities of the estate filed by Dryfoos was the inventory provided by the statute, and a paper showing the alleged indebtedness of the estate, of date of August 14th 1871. The plaintiffs in error claim the court below erred in refusing to allow Dryfoos for his services as administrator six per centum on the whole amount of personal estate and on the money arising from the sale of lands of the estate. The question is presented, whether in an action to recover on an administrator’s bond, when there has been unfaithful administration, the administrator guilty of dereliction of duty, is entitled to reduce the amount of money wrongfully detained by him after his removal from administratorship, by the commission prescribed in § 162, of the act relating to executors and administrators. We think not. Such a construction of § 162 would be grossly unjust. When a person is unfaithful to a trust confided in him, and compels the parties interested therein to resort to litigation to protect their rights, he forfeits his right to compensation for his services. Sumner v. Reicheniker, 9 Kas. 320. The section relied upon to give Dryfoos compensation was evidently intended to recompense an executor or administrator who performed beneficial services to an estate, or, in other words, who complied with the provisions of law regulating the discharge of his duties. To allow the six per centum claimed, as a valid reduction .from the moneys wrongfully detained by Dryfoos, after his removal from his trust, would distort the evident object of the law. The compensation provided, is for the services of executors and administrators; and to construe the section as contended for by the counsel of plaintiffs in error would make such compensation equally applicable for the payment of intentional or willful neglect of duty, as for services actually performed. As the record shows that Dryfoos failed to discharge his trust; as he was guilty of neglect of duty; as he failed to make his settlements as provided by law, and wrongfully refused to account for moneys collected belonging to the estate, the court below committed no error in disallowing his claim for six per centum commission. The services to such justify compensation had not been fully rendered. As Dryfoos was not entitled to his claim for commission, his sureties on his bond could not be entitled to any deduction from the money due therefor.

The only other alleged error is that the court below refused to credit the account of Dryfoos with $39.80 due one A. T. Owens for “fees in the district court in the case of the heirs of John Sanderson, deceased, against W. H. Moore.” The court properly rejected this claim, as the record does not show said amount to have been a valid charge against the estate of Sanderson, and fails to show that the same had been paid by Dryfoos, or by any one for him.

No error appearing in the record, the judgment of the court below must be affirmed.

All the Justices concurring.