124 Mo. 372 | Mo. | 1894
The public administrator having been duly ordered by the St. Louis probate court to take charge of the estate of Florence G-arrison, deceased, such appointment is a valid one and can not "be ques
This being the case, it was the clear duty of the public administrator to do just as he did do, to wit, to proceed to recover judgment and then to collect the residue of that judgment remaining after the first payment made thereon and the refusal of Oreen to pay the remainder. So that it will be seen that the public administrator was simply moving in the line of strict duty when enjoined from further proceeding by the action of the circuit court. The order requiring him to take charge as public administrator of the estate of Florence Oarrison, and his steps taken pursuant thereto, were but the natural sequences and legitimate results and incidents pertaining to the due performance of his duty; he would have been derelict to that duty had he done less.
There are numerous decisions in this state holding that it is absolutely necessary that the personal estate of a decedent pass through administration before the heirs are entitled to their distributive shares, prior to which time an administrator must represent them. Bartlett v. Hyde, 3 Mo. 490; Craslinv. Baker, 8 Mo. 437;. State to use v. Porter, 9 Mo. 352; Leakey v. Maupin, 10 Mo. 368; Hastings v. Myers’ Adm’r, 21 Mo. 519; Naylor’s Adm’r v. Moffatt, 29 Mo. 126; Hanenkamp’s Adm’r v. Borgmier, 32 Mo. 569; State to use v. Fulton, 35 Mo. 323; Smith v. Denny, 37 Mo. 20; Vastine v. Dinan, 42 Mo. 269; State ex rel. v. Moore, 18 Mo. App. 406; Becraft v. Lewis, 41 Mo. App. 546; Boeger v. Langenberg, 42 Mo. App. 7.
. Quotations will now be made from some of the cases already cited. In Leakey v. Maupin (10 Mo.. 368) Scott, J.., said: “To hold that the personal estate on the death of an intestate descended to his heirs, would
In State to use v. Fulton (35 Mo. 323), it was held that heirs could not bring suit on the bond of a former administrator, but the administrator cle bonis non alone could do so, and that, although the debts were paid, the heirs had no right of action until an order of distribution was made, and only then against the administrator de bonis non. This case is approvingly cited on this point in Vastine v. Dinan, supra.
In Smith v. Denny (37 Mo. 20), the plaintiffs claimed certain slaves as the heirs at law of Rachel Ann Smith, deceased. The bill charges that she died intestate, and that no letters of administration had ever been granted on her estate. Wagner, J., said: “Upon the death of said Rachel Ann, the property, being personal property, belonged to her administrators, and not the heirs. The appellants, who claim to be the heirs, are proceeding as if it were real estate; but, being purely personal in its nature, there must be an administrator to represent it before an adjudication can be had in court. Personal property must be administered on before the heirs can claim their distribution shares.”
On the other hand we have a line of cases announcing the doctrine that, before final settlement, heirs can maintain an action on the bond of the former administrator, and that an order of distribution and the intervention of an administrator de bonis non are unnec; essary. State to use v. Campbell, 10 Mo. 726; State to use v. Stephenson, 12 Mo. 180; State to use v. Morton,
It is not easy to reconcile these two lines of decisions ; but, of the latter class, it may be safely said that it does not authorize a suit by the heirs on the bond of a. former administrator until there is no danger of further presentation of creditors’ demands against the estate. But this was not the condition of the estate in the present case at the time the defendant was placed in charge of it, and, even if it had been, this could not be used to defeat in this collateral way the order of the probate court. None of the authorities cited from this state give countenance to the idea that an heir or any assignee of his, may retain what he deems to be his distributive'share of the estate, and, when the administrator recovers judgment and endeavors to collect it, enjoin its collection on the theory advanced by plaintiff in the case at bar.
In truth and in fact, this very injunction proceeding is, after all, but an indirect attack on the order aforesaid of the probate court; but it can not be permitted to prevail, not only for the reasons already given, but also for this additional one. The probate court had jurisdiction of the estate in question, indeed, “over all matter pertaining to probate business, *■ * settling the accounts of executors, administrators,” etc. R. S. 1889, sec. 3397; Gentry v. Gentry, 122 Mo. 202. The estate in this particular instance had not yet been settled; the settlement was still pending before that court, the only appropriate tribunal where it could be settled. In such circumstances as are here presented, we do not believe that another tribunal could rightfully intervene and prevent the probate court from exercising its customary and lawful authority in the settlement of Mrs. Garrison’s estate.
Nor, if we could concede as much as that, could
If the probate court has the jurisdiction of the estate under discussion, as already asserted, then that is the forum and the only one, possessed as it is of ample powers, in which all matters pertaining to the final settlement and distribution of Mrs. Grarrison’s estate can be fully and properly adjusted.
In this view it is perhaps unnecessary to pass on the point whether Edward Crookes having assigned his interest in the estate to plaintiff,- the latter could successfully resist the collection of a portion of the judgment by the public administrator. Admitting that he could do this, still, under the ruling made in an analogous case, he could not thereby deprive defendant of his lawfully earned commissions. Wiley v. Robert, 27 Mo. 388. However, such matters can all be satisfactorily arranged in the probate court.
Holding these views, we reverse the decree of the circuit court.
