93 Mo. 587 | Mo. | 1887
Lead Opinion
This is a statutory proceeding, commenced in the probate court against a removed administrator and his surety to ascertain the amount of money and property in his hands. The probate court gave judgment for the plaintiff for the sum of $8,752.53. A like judgment was rendered in the circuit court, on an appeal prosecuted by the defendants. That judgment was reversed in the court of appeals and the plaintiff appealed.
John B. Carson died in 1866. By his will, he gave to two step-daughters twenty-five hundred dollars each, and to a nephew one thousand dollars. The residue of his property, real and personal, he devised and bequeathed to his brother, James O. Carson, and his sister, Mrs. Postlewait. Ferguson, the nominated exec
The Ferguson demand, held by Glover, arose as follows : At the death of John B. Carson there was a suit pending against him by Ober and others, which was revived against the administrator. The suit was prosecuted through the state courts, and by the administrator appealed to the Supreme Court of the United States, resulting in a final judgment for Ober and others. Ferguson, who was a surety on the appeal bond, paid a balance d ue on the judgment and took an assignment of it to Mr. Glover, in whose name it was allowed by the probate court on the twenty-first of March, 1879, in the sum of $5,114.92. This is the only unpaid debt of the Carson estate, and is held by Ferguson, who is a surety on the administrator’s bond, and he is a defendant in this proceeding.
The deceased left a large personal and real estate. James O. Carson had administered on all the personal property of any value at the date of his second settlement, and, as we understand the record, the devisees have sold all the real estate. By the two settlements, the late administrator stands charged with over thirty thousand dollars, and is credited with a larger amount, so that there appears from them to be due to him $5,636.12. The deceased owned three-fourths of two
The principal question is, whether the removed administrator must stand charged in this suit with the §17,750 proceeds of the two and one-half 'acres, and the next relates to the matters of credit. That the personal property constitutes the primary fund out of which the debts are to be paid is well settled. The principle runs through the whole administration law. But in case of a deficiency of personal assets, the real estate must be resorted to, and the heir or devisee takes subject to the payment of the debts. The law makes it the duty of the executor to inventory all the real as well as the personal property. Under the order of the probate court he may lease the real estate, collect the rents, prosecute actions for the recovery of possession, discharge mortgages and other liens, and deliver the property to those entitled thereto when not, needed for the payment of debts. R. S., secs. 70, 129, 143, 130. Although the administrator or executor takes possession of real estate and collects the rents arising therefrom without an order of the pro
Now in this case, the administrator took control of all of the real estate and collected the rents. The will provides that the three special legacies shall be paid as soon as practicable by the executor, and if necessary, he is authorized to sell real estate to pay the same. The administrator did not sell under this power as he might have done, nor did he procure an order of the court, but he and his sister, who were the residuary legatees and devisees, made the deed in their individual names, and then the administrator carried the proceeds into his accounts as administrator. This constituted in part the fund from which the mortgages and special legacies were paid. It must be taken that the purpose was to create a fund to be thus used by the administrator, for nothing to the contrary appears. If heirs of a deceased person were to raise money and place it in the hands of the-administrator in order to pay debts of the estate, and thereby save a resort to the real estate, we cannot see why the administrator and his sureties would not be answerable for the proper application of the money. Although the money was not raised by virtue of his office as administrator, still the administrator received and applied it in his official capacity. He disregarded his duty in not settling under the will or by order of the court, but he received the proceeds and disbursed them under color of his office. Under the principle of the cases
That it was the duty of the administrator to reserve enough money to pay the debts before making payments to the residuary devisees is clear. We do not understand the proposition to be denied. These payments to James O. Carson and Mrs. Postlewait, and the commissions on them, must be excluded from the credits. The administrator appears to have paid four hundred dollars on account of his own notes given in payment of interest on an incumbrance on the Locust street property. This was done when he would have had money in his hands to pay the principal but for the wrongful payments to himself and the other residuary legatees. This item must also be excluded. The result of this is that the late administrator stands chargeable with an amount equal to that found by the circuit court, from which no appeal was taken by the plaintiff. It is, therefore, unnecessary to examine the other disputed items of the accounts. While this result is reached upon different grounds from those taken by the probate and circuit court, still the facts are not disputed and there is no need of a new trial.
The judgment of the court of appeals is reversed and the cause remanded to that court with directions to affirm the judgment of the circuit court.
Rehearing
On rehearing.
By the opinion heretofore filed, the late administrator, James O. Carson, stands charged with the
As to creditors, James O. Carson had no right to make the payments to himself, or his sister. The same is true as to the four hundred dollars. We can come to no other conclusion than that heretofore expressed.
The opinion heretofore filed, with some immaterial erasures, will stand as the judgment of the court.