73 Mo. App. 401 | Mo. Ct. App. | 1898
Mary S. Hopkins died intestate leaving surviving as her heirs at law, her father, Jas. S. Hopkins, and her sister, Cora Y. Hopkins. Her entire estate consisted of five hundred and seventeen acres of land. Thomas S. Hopkins, plaintiff, was appointed administrator of her estate. The intestate was hound as surety for her father on various notes amounting to nearly $10,000 which notes were allowed against her estate. There being no sufficient personal assets with which to discharge said debts, two hundred and sixty acres of the intestate’s land were sold by the administrator under an order of the probate court and out of the proceeds of the sale the indebtedness was discharged by him. The remainder of the intestate’s land, two hundred and fifty-seven acres, was incumbered by deed of trust which had been executed by the intestate to defendant Longan, as trustee, to secure a note of $5,000 dollars given by the father and on which the intestate was surety. After the death of the intestate default was made in the payment of said note at its maturity, and accordingly the trustee sold the land under the deed of trust, and the proceeds arising from the sale were sufficient to pay off the debt and costs of the trust and leave a surplus in his hands amounting to $2,260. One half thereof was paid by him over to the administrator and the other half thereof, being claimed by defendant Thompson, was retained.
Before the trustee’s sale took place Thompson recovered a judgment against the father for $787, and subsequently sued out an execution on his judgment and caused the trustee to be garnished therein. The trustee filed his answer setting forth the facts in rela
The administrator filed his petition alleging that the father was indebted to the estate of his deceased daughter, and consequently to him, the administrator, on account of the discharge by the former of the several debts of the latter, out of the assets of said estate. The insolvency of the father was alleged. It was prayed that an equal and fair distribution of the decedent’s estate be made between the said Cora Y. Hopkins, the surviving daughter, and the father, and that the whole of the indebtedness of the latter to the intestate’s estate be declared an asset of said estate, and charged upon distribution to the father as his part or his share, and that before any part of the intestate’s estate be taken by the father or his creditors that the same should be used in equalizing the distribution between the two heirs of the intestate. There was a further prayer that the administrator have judgment against the trustee for the said fund in his hands, or if' it had been paid over to ’the clerk of the court in accordance with a previous order of the court that the clerk be ordered to pay it over to the administrator, and that the rights of the father and Thompson of, in and to the fund be by the decree fixed and determined as inferior to that of the administrator, and for other proper relief.
The defendant Thompson, in his answer, claimed, a lien on the fund in the hands of the trustee and prayed the court to decree that the lien of his judgment against the father be declared' a lien on the funds in the hands of the trustee, or so much thereof as was
The decree of the court was, in effect, that the clerk pay over the fund to the administrator, and that the latter distribute the same to the heirs of the estate of the decedent according to their respective interests, and that since it appeared from the evidence that the father had received from the estate of the intestate the sum previously herein stated, and that there had been advanced and paid that sum upon his distributive share, it was therefore ordered and decreed that in the distribution of said sum, paid into court by the trustee, between the father and the daughter as the sole heirs of the intestate, that the administrator charge up against the father upon his distributive share the said sum so paid by said estate in discharge of his said.indebtedness. The defendant has appealed.
The question which now requires our decision is whether the decree of the court below can be sustained. There can be no question that under certain circumstances an administrator has the equitable right, by appropriate proceedings, to impound the interest of the distributee,, and by decree of court to have the debt, if larger than the distributive share, paid pro tanto by applying the amount due on distribution as a credit thereon. Ford v. O'Donnell, 40 Mo. App. 51; Ballard v. Marsden, 14 Ch. Div. 374. The authorities are quite agreed that an administrator has the right to subject the personal property of his intestate to the payment of a debt due by the heir to the estate in priority and preference to the claims of an assignee of the heir. Streety v. McCurdy, 104 Ala. loc. cit. 501; Fiscus v. Moore, 121 Ind. loc. cit. 556.
Rut it is contended that the fund in dispute is part of the proceeds arising from the sale of certain real estate of the intestate, and that therefore the equitable doctrine of retainer or set-off, as it is sometimes termed, does not extend to such proceeds. And this contention has the support of many authorities of the highest respectability. La Foy v. La Foy, 43 N. J. Eq. 206;
But ought it to make any difference that the fund in question arose from the sale of real estate? In Koons v. Mellett, 121 Ind. 585, it was held by the majority of the judges of the court that one who had obtained a judgment against the devisee of real estate, which was afterward sold in pursuance of the terms of the will, acquired no better right to participate in the proceeds than the devisee himself had, and that the administrator had the same right to set off a debt due from the devisee to the estate as if the latter himself were claiming to participate in the fund. And to the like effect are Streety v. McCurdy, ante; Manifold's
At common law the title to real property vested absolutely in the heirs upon the death of the ancestor and it could not be made an asset for the payment of debts. But under our statute it descends to the heir, but he does not take an absolute title. Pending the settlement of the estate of his ancestor the descent is subject to be interrupted or defeated, either when the personal representative makes it appear the sale is necessary to make assets for the payment of the debts of the ancestor or where it is incumbered by mortgage, deed of trust or other lien and there are no personal assets of the estate out of which the incumbrance or lien can be discharged. A sale in either way will pass the title and divest that of the heir. And such a conveyance will not be affected by a prior transfer made directly by the heir himself, or under a prior judgment against him. The real and personal property of an intestate under our statute descends to the same persons and in the same proportions and are both equally chargeable with the payment of his debts, with the exception that the personal estate must be exhausted first. Nelson v. Murfee, 69 Ala. 598; Fiscus v. Moore, 121 Ind. 547. And so it has been declared in a recent Alabama case, Streety v. McCurdy, ante, that under the statutes of that state, “realty is upon the same footing as personalty in this respect and that all the property of an estate — land, chattels and choses in action alike — constitute a fund first for the payment of debts of the estate by the subjection thereto of the personalty and realty in the order stated, and next for distribution to or division among the heirs of the residue. * * * And where an heir or distributee was indebted
The case of Brown’s Adm’r v. Mattingly et al., 91 Ky. 275, was one in which the judgment creditor had attached the interest of the debtor heir in the lands of his ancestor and his effort to assert that lien was resisted by the other heirs upon the ground that the debtor heir was at the time of his ancestor’s death indebted to him in a larger sum than the value of such heir’s interest in the real estate and it was relied upon as a set-off. Among other things, the court says: “But it is said that the right of set-off by the adminis.
It is not in the power of a third person to impair or embarrass the personal representative in the settlement of an estate by dealing with the heirs upon the supposition that their interest is of a fixed or certain character. Nor can the other heirs be deprived of some portion of their estate by the intervention or intermeddling of a stranger so as to destroy the equality of descent and distribution. And until the estate is finally settled every one is bound to know that the sale of the real estate may become necessary in order to make assets for the payment of debts and he is bound to know when the land is converted into money, by operation of law it becomes money assets and is subject to all the incidents of other assets
It will be remembered that the father and daughter were tenants in common as to the five hundred and seventeen acres of land inherited by them from their intestate. Each owned an undivided moiety thereof. If the contention of the defendant Thompson that the equitable doctrine of retainer or set-off does not extend to the case can be upheld the result will be that the daughter instead of securing one half of the land or the proceeds arising from the sale thereof, amounting to about $17,000, will receive only about $1,130, while her father and cotenant will get the. benefit of nearly the entire proceeds of the sale, or nearly $16,000. On the other hand, if we extend and apply the doctrine just referred to, the result will be far more in consonance with justice, and will enable the daughter to receive at least a modicum of what she ought to have received, but for the exhaustion of the assets of the estate of the intestate in the payment of the debts of her father.
It frequently occurs that the assets of an estate consist largely of debts due from some of the heirs to the ancestor, supplemented with a small amount of real estate, such as the homestead. If the indebted heir can upon the death of the ancestor convey or incumber in any way his interest in the real estate so that after paying the debts of the ancestor his grantee, mortgagee or creditor might participate in the surplus equally with the other heirs who were not indebted the most manifest injustice and inequality would result. The law always presumes that an ancestor meant that his heirs should share equally in his estate. Rusch v. Beery, 110 Ind. 444. No case can well be imagined where the reasons calling for the application of the
' The fact that the administrator has not the fund in his possession is no reason why the action of the lower court should not be sustained. It was his duty, to reduce the assets of the estate, including the debts due the estate by the heirs, to possession to the end that there could be distribution made. And to accomplish this he had the right, as we have seen, to invoke the aid of a court of equity. The fund is conceded to have been in the rightful custody of the court and all the parties making claim thereto or in any way interested therein were properly before it, so that there was no difficulty in the way of its making such a disposition of the fund as seemed to it warranted by the circumstances of the case.
We think the decree was clearly for the right party and should be affirmed, which is accordingly so ordered.