11 Mo. App. 436 | Mo. Ct. App. | 1882
delivered the opinion of the court.
This is an action of ejectment, commenced in the St. Louis Circuit Court, for the recovery of the possession of a
The plaintiff, in support of her title, offered in evidence : —
1. A certified copy of a judgment record of the St. Louis Circuit Court, in favor of the plaintiff against Thomas A. Walker, said judgment being dated October 11, 1877.
2. A sheriff’s deed, and papers thereto annexed, dated July 28,1880, whereby the sheriff, by levy and sale under an execution issued upon said judgment, had conveyed the land in controversy to plaintiff in this suit.
It was admitted that Thomas A. Walker was the common source of title, from whom both the plaintiff and the defendants claimed title.
It was also admitted that the defendant McDowell was the tenant of the defendant Williams, in possession when this suit was commenced, paying for said land a monthly rent of $25.
The .plaintiff also offered evidence showing damages and the monthly rental value of the land, and then rested.
The defendants, to support their title, then offered in evidence the deed of the mai’shal of the city of St. Louis, and papers thereto annexed, dated September 25, 1877, whereby the land in suit was sold to the defendaxit Williams, as trustee for the wife of Thomas A. Walker.
It was admitted that the defendants had been in possession of said land since the sale thex-eof to the defendant Williams by the marshal.
The defendant hei'e rested.
The plaintiff, in rebuttal, offered in evidence, as a substitute for the full record, what was agreed by the attorneys for both parties to be a correct abstract of certain records of the probate court of the county (now city) of St. Louis
The defendants’ attorney objected to them as incompetent and irrelevant evidence, but did not object because they were abstracts.
This evidence was admitted by the court, the defendants, by their counsel, excepting.
The abstracts are as follows : —
“ Thomas A. Walker was duly commissioned as executor of the will of his father, Isaac Walker, in 1868.
“January 8, 1873, the probate court of St. Louis County removed Thomas A. Walker as executor, on the ground of alleged non-residence. On the same day an appeal was allowed the said Walker'from said order of removal, to the circuit court of St. Louis County.
“ On March 4, 1874, on a trial anew in the circuit court, the order of the probate court was sustained.
“ On March 18, 1874, an appeal was allowed to the general term of the circuit court.
“ On June 24, 1874, the general term affirmed the special term.
“ On July 6, 1874, the general term allowed an appeal to the supreme court. Cause was thence transferred to the court of appeals, which, on March 7, 1876, reversed the judgment below, and rendered its own judgment, dismissing the proceedings for removal. “
“ On April 17, 1876, the probate court, in pursuance of the judgment of the court of appeals, on receipt of a mandate, reinstated Thomas A. Walker as executor. For a subsequent cause he was removed on July 28, 1877.
“ On January 8, 1873, the same day on which Walker was first removed, the probate court appointed John G. Priest administrator, etc., as successor to Thomas A. Walker, removed. And said Priest thereafter commenced a proceeding in the probate court against said Walker, to recover from him the assets of the estate in his hands, when*440 he was removed as executor, and balance of a debt due by him to his testator.
“And on July 22, 1874, the probate court rendered its judgment against said Walker, in said proceeding, for $38,941.17 ; and on March 1, 1875, modified said judgment by reducing the amount thereof to $26,498.51, and the return of certain scrip and stock belonging to the estate and in possession of said Walker; the said judgment being partly for the balance of debt due by said Walker to his testator.
“On July 28, 1877, Thomas A. Walker, in virtue of an agreement between himself and the other heirs of Isaac Walker, was again removed from the office of executor. And afterwards, on same day, John Gr. Priest was appointed and qualified as successor to the said Walker, as administrator with the will annexed.
“ On August 16, 1877, said Priest, as administrator, with the consent of the heirs of Isaac Walker and the probate court, assigned on the record said judgment as modified, to George J. Williams, as trustee for Mary C. Walker,, wife of Thomas A. Walker, for the expressed consideration of $7,500.
“ On August 18, 1877, said Williams had execution issued from the probate court on said judgment, and levied the same on the lands set off to Thomas A. Walker, as his part of his father’s estate; and the lot here sued for is a part of those lands.”
This was all the evidence offered by the plaintiff to sustain her title.
The court, at the request of the plaintiff, gave the following instructions : —
“ First. The court, sitting as a jury, declares the law to be, that the judgment of the probate court was avoided, when the judgment of removal was reversed and Walker reinstated, and that the judgment ceased to exist, and, therefore, it must find for the plaintiff.
*441 “ Second. The court, sitting as a jury, declares the law to be, that even if the judgment of $26,498.51, against Walker, was not vacated by the reversal of the order of renewal, yet, when Walker was reinstated, he thereby became payor and payee of the judgment, and that it was immediately upon his reinstatement, discharged by operation of law, and, therefore, it must find for the plaintiff.
“ Third. The court, sitting asa jury, declares the law to be, that the probate court has no jurisdiction of a suit to collect a debt due by an executor to his testator, and that the judgment against Walker, being in part for such debt, the judgment is void, and, therefore, it must find for the plaintiff.”
To the giving of these instructions, the defendants’ counsel duly excepted.
The defendants asked no instructions.
The questions which arise upon this record will best be understood if the provisions of the statute existing at the time which bear upon them are considered. The statute relating to executors and administrators contained the following provisions : “ Letters testamentary and of administration shall in no case be granted to a non-resident of this state, and, where an executor or administrator shall become non-resident, the court having jurisdiction of the estate of the testator or intestate of such executor or administrator, shall revoke his letters.” Wag. Stats. 72, sect. 8.
“Appeals shall be allowed from the decisions of the court having probate jurisdiction to the circuit court in the following cases; * * * ninth, on all orders revoking letters testamentary or of administration.” Wag. Stats. 119, sect. 1.
“ If all the executors or administrators of an estate die or resign, or their letters be revoked, in cases not otherwise provided for, letters of administration of the goods remaining unadministered shall be granted to those to whom administration would have been granted if the original*442 letters had not been obtained, or the persons obtaining them had renounced the administration; and the administrator shall perform the like duties and incur the like liabilities as the former executor or administrators.” Wag. Stats. 77, Sect. 46.
“ If any executor or administrator die, resign, or his letters be revoked, he-or his legal representatives shall account for, pay, and deliver to his successor, or to the surviving or remaining executor or administrator, all money, real and personal property of every kind, and all rights, credits, deeds, evidences of debt, and such papers of every kind, of the deceased, at such times and in such manner as the court shall order, on final settlement with such executor or administrator, or his legal representatives.” Wag. Stats. 77, sect. 47.
“ The succeeding administrator, or the remaining execu-' tor or administrator, may proceed at law against the delinquent and his securities, or either of them, or against any other person possessed of any part of the estate.” Wag. Stats. 77, sect. 48.
“If any executor or administrator resign, of his letters be revoked, the court shall have power, upon the application of his successor or the remaining executor or administrator, to ascertain the amount of money, the quantity and kind of real and personal property, and all the rights, credits, deeds, evidence of debt, and papers of every kind, of the testator or intestate, in the hands of such executor or administrator at the time of his resignation, or removal from office, or revocation of letters, and to order and adjudge the rendition of the same to the successor of such executor or administrator, and to enforce such order and judgment against such executor or administrator and his securities, in the following manner: First, for the amount of money specified in the judgment, by execution in the ordinary form; second, for all other estate, effects, and papers described in the judgment or order, by attachment*443 against the person or property of such executor or administrator.” Wag. Stats. 81, sect. 67.
“ If any person appoint his debtor executor of his will, such appointment shall not discharge the debt, but it shall be assets in his hands.” Wag. Stats. 87, sect. 32.
The foregoing statement of facts, and the foregoing statutes, when taken together, present very clearly the questions which arise on this record.
It is urged, however, that the want of jurisdiction of the-probate court does not appear affirmatively, and hence that its judgment cannot be overthrown for want of jurisdiction in this collateral proceeding. If this question were presented by the record before us, it would have to be seriously considered. But from the abstract of the record of the probate court which is before us, the want of jurisdiction of the probate court affirmatively appears; for it is_ there recited that a part of the judgment was for the balance of a debt due by Walker to his testator. As the law did not clothe the probate court with jurisdiction to render such a judgment, and as the judgment was an entire thing, it was void, and hence the sale of the property in controversy which took place under it, passed no title to the defendant Williams as trustee for Mrs. Walker.
The rulings of the circuit court which are here complained of were in accordance with these views, and its judgment is therefore affirmed.