*1 a. d. b. n. c. t. Individually as Administrator Old, John Deceased; Estate McCarty, Old, Marian Nora Heeg, Clauda Appellants, v. and Martha Lochhaus, McCarty, Frank County Company, P. Loan & Investment Heibel, Louis St. County Corporation; Sheriff A. J. Missouri Frank, Otto a Cor Missouri; Louis, St. Indiana, Oil Standard George poration ; Company, Electric Robertson F. Glasco Corporation. (2d)W. 351. 38773. 178 S. No. One, Division March

Taylor Young B. Bichard A. appellants. Austin for *2 &Loan County for St. Louis W. Schreiber and Dalton Kerth

H.A. respondent. Company DALTON, equity C.- Action in and establish foreclose a County. lien on described real estate A in St. Louis petition cross was filed defendant St. Louis Loan and Investment Company) to as Investment referred (hereinafter to the described determine quiet and defendants the other Investment Com- defendant found for the court The trial appealed. have Plaintiffs petition. its cross pany Heeg, owner of the dispute. Clauda are facts last will and by her 8, on December estate, died testate P. Heibel. one the described devised testament residuary of six bond one without named executor was Pleibel residuary present legatees and The other five legatees in the will. plaintiffs. are non annexo bonis cum testamento de administrator duly probate and admitted to was December On inventory was filed without bond. An appointed executor $20,000. All of the value of claims showing personal property real and legacies will of special provided all against the estate 1938, defendant fully paid. November have been On deceased *3 judgment against Heibel personal a Company recovered Investment levy and, duly issued, was a Execution thereafter made for $2635.15. in the described real estate September 9, Heibel’s interest on A Company. was duly to defendant Investment sheriff’s deed was sold executed, delivered and recorded. judgment against Heibel, but prior the rendition of above

After the was, on sale of the real November 1939 for to the cause, removed as executor of the estate of deceased. The records of ground Probate Court show removal on admitted the the of appropria- of $761.00 tion of of the assets the estate. Final settlement to date showing subsequently was $3588.35 of removal filed due the estate approved February 26, judg- of deceased'. Settlement was plaintiff against in favor ment entered of and Heibel. administrator was appeal judgment No taken and the is final has not and been wholly Heibel is paid. insolvent. final No settlement the of estate deceased has made and no been distribution has been ordered. petition charged

Plaintiffs’ that P. right, Heibel had no title in subject or interest the described real estate by to execution general creditors; in Heibel’s interest real described estate contingent until administration Heeg, of the estate Clauda deceased, had finally been ánd settled Heibel’s indebtedness estate had been discharged,; fully that the sheriff’s deed defendant Investment plaintiffs’ title; created a cloud on and that the other defendants, assigned to whom Heibel had an interest in the right claimed some and prayed interest therein. Plaintiffs quiet court to and determine title to the described real estate and de- the same an clare asset of to be the estate of the deceased until final settlement of the had however, been Considering, made. allegations petition, we apparent think it is that, pro- ceeding, plaintiffs judgment seek to (which have was rendered in against favor the estate and Heibel and admittedly which covers superior estate) declared misappropriation of funds of the .the upon real estate which was devised equitable lien the -described defalcation, Heibel’s

Heibel, subsequently, prior but which and subject Company’s became against to the lien of Investment Invest- effect, defendant Plaintiffs, Heibel. contended that only Heibel’s Company, sale, acquired ment at the execution final settle- estate; that, had been no there since any distribution, rights acquired by ment of the estate nor order of equitable plaintiffs’ defendant Investment Company were right for funds against of retainer or set off the devised due lien Heibel; right superior the estate from to the that such is foreclosed Company’s judgment Investment has been (even though after the claim set off arose of the estate to retainer and attached) ; the lien of defendant Company’s Investment plaintiffs’ right superior that the equitable off is retainer or set to defendant Warren v. Company’s (Compare, title. Warren, 255 N. Y. Rep. 43.) 143 Misc.

The Investment Company to the decree contends it is entitled quieting determining against all its all of the other It defendants. insists that the interest of devisee is chargeable with his a valid debts to the estate where judgment lien intervened; has right equitable and that retainer does against not exist vested under estate devised statute of descents. It right concedes that retainer exists in favor of an personal property hands the executor or administrator. stages among There is a conflict the decisions several of -the whether may charged against the indebtedness of an heir be his share *4 estate, the real proceeds specific or the thereof, and whether a devise real estate is to 21 the devisee’s debts to testator’s Jur., Am. Executors &Administrators, 460; S., 34 Sec. C. J. Executors & Administrators, 494(d); 1317; 965, Sec. 24 489, 69 C. J. Sec. C. J. 2155; 966, 337; Sec. 18 247, 279; C. J. Sec. 11 R. L. Sec. Annota- C. tions, 1 A. L. 1027; R. 1017 and 780; 30 A. R. 75 L. L. A. R. 885; 1387, 110 A. L. R. right equitable The retainer or set off personal real or property is well established in state and it is immateral (Sec. whether the passes by 306, real descent estate 1939) by R. S. or (Sec. 518, 1939). R. S. Duffy

In the Duffy, case 144, W. 1002, 155 55 plaintiff, Mo. an heir, insolvent was indebted to his at death father the time of his and the claim was judgment by reduced to the father’s administrator. Plaintiff brought then suit partition, among heirs, to inherited from the father. On appeal, plaintiff’s this court ordered distributive share of proceeds paid of the real estate to the ad ministrator be applied judgment to on the in favor of The the estate. court “An said: heir’s in interest an estate consists his distributive

515 estate; or, what he owes the in of the estate less share or inherited as treated so much estate is be he what owes other by him, already received therefore in the estate interest his personal, real he property, whether or is entitled distribution already he plus what has received will make much thereof as only to so heirs or Other- the share of the other distributees. equal to his share other,heirs much more than the received receive as heir would wise the It amounted to. could not the estate be tolerated he owed as the debt allowed to thus diminish shares of other be should he ’’ nothing from the had received heirs who Lietman, 112, Estate v. Mo. 50 S. W. In case of Lietman’s legatee was 307, *5 v. Savings Hamilton Bank, 281 Mo. 585, 587; 219 W. S. State ex rel. 288, Howe v. Hughes, 343 827, Mo. (2d) 123 105, 111; S. W. Leach v. (Mo. Armstrong App.), (2d) 156 S. W. 959, 960; Burch v. Horn (Mo. App.), (2d) 156 929; Harlan, Studer v. App. 811, 233 Mo. 109 W. (2d), 687, S. 689; Gorg v. (Mo. App.), Rutherford 31 S. W.

516 713, Ennis, App. v. 585, 588; ex rel. Toller

(2d) State (Mo. App.), 739; Bank v. Dennis’ Estate (2d) 737, Traders’ W. S. App. 401. Thompson, 73 Mo. 796, 797; Hopkins v. 221 S. W. or therefore, retainer set It, appears the doctrine at purchaser of an heir’s or devisee’s interest applies off title the heir purchaser only takes whatever sale and such execution existing equities and to had, subject to to the estate or devisee Duffy Duffy, supra; Ridings Hamilton legatees. v. v. the other heirs'or 136, Savings Bank, supra; Jur., Distribution, Am. Descents & Sec. 916-917; Administrators, & pp. Jur., Am. Executors Secs. 465; 28 R. L. Sec. 356. 356, C.

“In an heir indebted to the ancestor’s estate reason him suretyship equity of the or otherwise has in ancestor’s against the other heirs no definite share or ancestor’s pays indebtedness, and, failing so, unless such he to do his interest or share as heir is cut.down to the extent of the sum he owes difference, If there is no ancestor’s or his indebtedness share, exceeds what the value of would otherwise have his been nothing. nothing, convey nothing interest or share is he Having can others, or, anything deducting if remains indebtedness, after convey he remains, nothing could what Ridings but more.” v. Savings Hamilton Bank, supra, (219 585, 588); Hopkins Thompson, supra, (73 410). App. 401,

Respondents distinguish seek cases, some of the supra, on the theory that the real been estate had converted money, however, into regardless of money, the conversion surplus remaining into after- payment debts, of deceased’s retained the character of real estate for purposes of succession State, or distribution. Enyart to Use of Doud, App. 480, 269 W. 924; S. Estate, In re Claus’ (Mo. App.), 147 (2d) 199, any case, 202. In the doctrine of equitable retainer applied against has been real estate unconverted into money by pay sale to Ayres debts or otherwise. v. King, supra; Trabue v. Henderson, supra; Armstrong, Leach v. supra; 26 C. J. S. & Distribution, Descents Sec. It is also immaterial that the in debtedness to the estate did not exist when died, the testator but arose payment thereafter from the of security- debts. Traders Bank v. Estate, Dunn’s supra; Henderson, supra; Trabue Hopkins v. Thompson, supra; Woerner’s American Law of Administration, 3rd Ed. Vol. Sec. p. 1925; 21 Am. Jur. Administrators, Executors & 455; Wills, Sec. p. 356, R. 356; C. L. Annotations, Sec. 1 A. L. R. 1000. The doctrine has frequently been applied arising to claims out conversion, waste or misapplication legatee assets acting distributee while in the capacity of executor or administrator. Annotations, L. 1005; A. R. 778; 30 A. R L. 75 A. 880; L. R 34 C. J. S. Executors & Administrators, 494. However, Sec. appears it entire basis equities doctrine is one case, and in at the *6 attached, equities no Company Investment lien of time the Heibel. plaintiffs the or others in favor of the existed Company’s case, record this the the In other described Heibel’s interest the rights intervened and attached to equities, which now prior to the time the assert, arose. seek part the real remained of

Appellants’ position that subject execu had no interest to be taken on and that Heibel Upon probate final cannot be sustained. prior tion settlement as will, to the real estate vested the title Heeg. (Mo. Sup.), of v. the death of Clauda Henderson Calhoun title, (1) legal 183 W. 586. It was but the later S. invalidity (Hughes Burriss, 660); (2) the will 85 Mo. the ulti v. subsequently proceedings mate outcome contest instituted (Hines Hines, Byrne, 480, 496, 774; Byrne v. S. W. v. 109, 120, 461); (3) payment 233 W. debts testatrix, Lantry, (Hagan and even if there was no administration (2d) 522, 526); (4) debts, payment if any, (Burch due the devisee the testatrix at the time of her death Horn, supra, (2d) 929, 932); (5) of dev payment arising administration, during isee’s debts to the estate course upon existing equities, surety where based as where testator was devisee and the subsequently paid (Traders’ estate has the debt Bank Estate, supra.) ; (6) Dennis’ equities arising between during devisee and legatees the estate or other devisees prior course of the administration and intervention of the rights parties. of third In case, defendant Investment acquired Heibel’s interest in the estate, prior described real to the plaintiffs’ rights time existence, came into and it follows that defend ant Investment Company’s superior rights plaintiffs. is to the Bradley is Osdol,'CC., affirmed. and Van concur.

PEB foregoing opinion CUBIAM: The adopted C., is Dalton, opinion court. All judges concur. insolvent notes a nonresident testator on indebted of a specific legacy excess the total amount amount in an surplus, provided by the will. pro rata share of This court legatee’s legacy indebtedness, should be credited on his held theory or legacy, that he was entitled to distributive share, part while he of which his and fund out retained shares, or legacies, paid distributive were be and só diminished the fund extent. to that Ayres King, 244, 247, 558, case of 67 S. In the an W. passed owner of estate died intestate and his real estate to his law, whom, nonresident, heirs at who one was insolvent and owed (the heir’s) him more than share in the estate was worth. A of this judgment, upon, creditor heir levied sold and bought obtained in the debtor heir’s parti interest' the real sought then ‘! tion. This plaintiff court said: has no substantial in this land. He legal holds under his sheriff’s deed the bare title which his inherited, charged debtor with a debt favor of the beyond estate far its value. He stands in the shoes of his ’’ debtor. Partition denied. In the case Henderson, of Trabue v. this court refused to set as fraudulent, aside as to the creditors of an heir, an heir’s conveying deed his interest in his father’s real estate, where the heir owed the more than his share of the real estate was worth. The court said the heir would have received nothing from the estate and nothing the creditor lost conveyance. For other recognizing cases doctrine of retainer as applicable personal property and real estate, proceeds thereof, and regardless of whether the passed devise or descent, see, Thompson McCune, 333 Mo. 758, (2d) 41, 44; Wright v. Green, 449, 454, 437; Ridings S.