110 Mo. App. 20 | Mo. Ct. App. | 1904
— This is an action which was brought by plaintiff in his capacity of administrator to recover $1,595 for work done for defendant by the former’s intestate during his lifetime. Amongst the defenses pleaded by the answer was that to the effect that the plaintiff’s intestate had executed in writing to defendants a full discharge and release for the services performed by the former for the latter. The replication was that said discharge and release pleaded in
At the trial the court' instructed the jury to the effect, if John Fry, Jr., was working for the defendants, whether under express contract or otherwise, and further finds that at the time, he, the said intestate, executed the written instrument of date August 31, 1901, the said- defendants were indebted to said intestate in any sum, and you further find that at such time the said intestate was indebted to John B. Egger and that the instrument of date August 31, 1901, was executed either for the purpose of making a gift of the indebtedness by defendant to said intestate or for the purpose of hindering and delaying the said John B. Egger or other creditors, in the collection of their debts, then such instrument will be insufficient as to this plaintiff as an instrument of conveyance or assignment of debt or account.
The court set aside the verdict, which was for defendant, on the ground that it had erred in its action in the giving of the instruction just referred to, and it was from this order the appeal was taken. The order of the court , setting aside the verdict and awarding a new trial was, in our opinion, proper and should be upheld.
In McLaughlin v. McLaughlin, 16 Mo. 242, Judge Scott in writing the opinion of the court said, the “administrator and heirs had no right to impeach any of his (the intestate’s) transactions as being fraudulent as against creditors. None but the creditors themselves
It is quite true that in some of the cases there are expressions whose meaning at first blush would seem obscure or possibly ambiguous, but when properly analyzed and understood it will be found that none of them have modified or altered the rule as declared in McLaughlin v. McLaughlin, supra. [Brown’s Admr. v. Finley, 18 Mo. 1. c. 378; Criddle’s Admr. v. Criddle, 21 Mo., 522; George v. Williamson, 26 Mo. 190; Merry v. Fremon, 44 Mo. 518; Jackson v. Robinson, 64 Mo. 1. c. 292; Zoll v. Soper, 75 Mo. 460; Roan v. Winn, 93 Mo. l. c. 511; Stevenson v. Edwards, 98 Mo. 1. c. 626; Thomas v. Thomas, 107 Mo. l. c. 459; Crook v. Tull, 111 Mo. 1. c. 288; Heinrichs v. Woods, 7 Mo. App. 236; Rozelle v. Harmon, 29 Mo. App. 569.] According to the rulings in the adjudications just referred to, it is plain that it would not have been permitted to the intestate had he sued on the cause of action in issue in this case during his lifetime to question the validity and binding-effect of the release and discharge pleaded by the answer on the ground that it was made and contrived in fraud of his creditors and therefore void, nor to the plaintiff, his representative standing in his shoes.
The rule enunciated by the said instruction is inapplicable in a case of this kind. Accordingly, the order granting the new trial must be affirmed.
The administrator under our statute is a trustee for creditors of the estate. This is manifest from the fact that his duty is to protect, collect and preserve the estate in the interest of and for the benefit of the creditors first, and next the heirs, and if the estate be insolvent, the heirs would have no practical interest in it and the administrator would be merely a trustee for the creditors. He is so declared by the Supreme Court. In Stagg v. Green, 47 Mo. 500, it is said: “The policy of our law is obvious. The' executor is but a trustee; he receives nothing in his own right, but everything for the use of others.” This is restated in Chandler v. Stevenson, 68 Mo. 450. “The prevailing rule now established in this court is, that executors and administrators stand in the position of trustees to those interested in the estates upon which they administer.” [Merritt v. Merritt, 62 Mo. 150.] This view of the relation of an administrator is repeated by the Supreme Court in a late opinion by Judge Burgess wherein it is stated that he is “a trustee for the creditors and for heirs or legatees. ” [Richardson v. Cole, 160 Mo. 372.] Under the old regime, where the probate and administrative system was not so comprehensive and exclusive as now, it was held by many courts that the administrator could not attack his intestate’s fraudulent deed or act; but that a creditor had a remedy for himself, by charging the fraudulent grantee as an executor de son tort: that is, that such grantee held property which was properly assets of the estate for liquidation of debts. But the
It is manifest that the authorities to the contrary leave out of view the dual capacity of the administrator. He is the deceased’s representative, it is true, but he is now, under our statute and all others of like import, also the representative of the creditors. Indeed, his primary duty is to the creditors. When the administrator comes to represent the heirs who claim through the deceased, he is bound by the act of the deceased. But he has also a duty charged upon him in behalf of the creditors. The statute contemplates that he shall collect in the assets of the estate which must first be paid out to creditors before the heirs have any interest therein. As to creditors, property fraudulently transferred is an asset of the estate. And when he represents them he is not representing an interest which comes through the deceased, but rather one that is in antagonism. In performing that duty he is a
In St. Francis Mill Co. v. Sugg, 169 Mo. 130, 136, the Supreme Court, through Judge Valliant, without approval or disapproval, refers to the cases which announce that an administrator can not avoid his intestate’s fraudulent'transfer. But he adds that the administrator should treat property as assets of the estate when its fraudulent transfer has been set aside at the suit of creditors. That statement of the law overrules what was said in George v. Williamson, 26 Mo. 190, wherein it was held that the creditor who sets aside the fraudulent transfer of his deceased debtor would have the benefit of the whole property to the exclusion of other creditors, if necessary to the payment of his claim. For if it becomes assets to be administered-upon by the administrator, it would, of course, be for the benefit of all. Now, if the administrator is entitled to take the property recovered at the suit of the creditor, there can be no reason why he should .not be permitted to recover it himself. He is a trustee for the creditor and he must administer on the recovered property, and so it approaches the absurd to say, in this state of the law, that he can not himself maintain the suit. It is not necessary to deny the right of the creditor also to maintain suit. There might be instances of non-action by the administrator where it would be necessary for him to do so.
My conclusion is this: that the administrator is bound by any act of the deceased where he represents those who themselves would be bound by such act, as, for instance, heirs. But he is not bound where he represents those who are, themselves, not bound by such act, as,, for instance, creditors.
The other judges concur in this opinion except as to the first division; as to that, they regard the rulings of the Supreme Court referred to in the majority opinion as binding.