76 Mo. 200 | Mo. | 1882
I.
No doubt is entertained of the right-of the administrator.to appeal in instances like the present. The statute is evidently broad enough in its evident scope and meaning to give such a right. 1 Wag. St., 119, § 1. The right under this section, has frequently been recognized by this court. McCrary v. Menteer, 58 Mo. 446; Seymour v. Seymour, 67 Mo. 803; Hawkins v. Cunningham, 67 Mo. 415; Hainey v. Scott, 28 Mo. 333. And it is quite immaterial, as regards this right of appeal, whether the administrator be personally aggrieved or not. It is seldom that he bottoms his appeal on the ground of the judgment of the probate court affecting him injuriously in his individual capacity. For the most part, he appeals, because in his opinicD, the interests confided to his care have suffered detriment by reason of the judgment of the probate-court. He represents each and all of the creditors and the whole of the estate, and should take all such steps as are necessary to prevent the interests placed in his hands from being damaged in consequence of improper orders being-made regarding the estate of which he is the custodian and representative. In this sense, he is, by such an order, aggrieved in his fiduciary capacity, and may, therefore, appeal.
II.
It may be conceded that the secured-creditors had the unquestionable right to resort to their collaterals in pay
The question then arises : How is the money on hand to be apportioned when the secured as well as unsecured creditors come in and present their demands and call for their respective dividends thereon ?
The statute, it will be observed, makes no distinction between the two classes of creditors above mentioned, but requires payment to be made to them in proportion to the amounts of the respective demands. Now, the “amount” of a demand, it is almost superfluous to say, embraces the interest as well as the principal of such demand. Both principal and interest constitute, in the aggregate, the amount or sum total of that demand.
If there have been any payments made on the demand subsequently to the allowance thereof, as a matter of course, such payments must be credited on the demand, just the same as if a partial payment had been made on any other debt or • claim whatsoever, and the same rule observed as in case of other partial payments. After this application of the partial payments has been made, in accordance with a very familiar rule, the demand thus reduced is to take rank and receive its dividend arising from insufficient assets, just as any other demand of equal amount, and be entitled to a similar fro rata payment. Any other construction than this, would clearly contravene the plain language and teachings of the statute and result in an
In the ease at bar, had the preferred creditors merely • retained the collaterals in their hands without collecting the same—without receiving partial payments arising from the proceeds of such collaterals—possibly a different question might be presented, one not necessary to be now discussed, and which we must decline to discuss because dehors the facts presented by this record; for here, the collaterals were collected before the order of the probate court, now complained of, was made. The effect of such collections, of such payments, was just the same, so far as concerns the reductions of the respective demands on which made, as if those collaterals had been collected prior to the allowance of those demands, instead of subsequently thereto. In a word, the conversion of the collaterals into cash as effectually reduces the debts they were given to secure in cases of this sort as in any other case whatsoever, for as between debtor and creditor the conversion of the security into money operates directly as payment so that the creditor can only go for the balance. West v. Bank, 19 Vt. 403.
For these reasons, judgment reversed and cause remanded.
