Richardson v. Cole
61 S.W. 182
Mo.
1901
Check Treatment
BURGESS, J.

On May 13, 1884, Lillie Kate Eagin died intestate and unmarried, the owner of personal property consisting of cash, notes and bonds of the face value of $9,342.17, and the bonds in litigation of the face value of $7,887, which had theretofore been placed by her father, Aaron W. Eagin, now deceased, in the hands of the defendant Nathan Cole, who had married her sister, to hold and invest for her.

After the death of Lillie Kate Eagin all of her heirs at law, except her father, Aaron W. Eagin, all being of age, by an instrument of writing of date July 16, 1884, agreed to and did transfer to Rachel G. Metcalfe, a sister of Lillie’s, and one of the defendants in this suit, all their right, title and interest in and to the estate of said Lillie, and by said instrument directed the defendant, Nathan Cole, as agent and trustee of said Lillie, to pay over to said Rachel Metcalfe any and all moneys of the deceased, and to transfer to her any and all property of the deceased which he held for her, taking her receipt therefor.

This instrument was executed by all the heirs at law of . Lillie, except her father, Aaron W. Eagin, but it was executed with his knowledge and consent and at his instance.

*376The defendant, Nathan Cole, acting under the authority of said instrument of writing, did, on or about September 23, 1884, transfer and deliver to said defendant, Rachel G. Metcalfe, all the notes, cash, bohds, and choses in action then in his possession as the agent or trustee for said Lillie.

On March 28, 1896, nearly twelve years after the death of said Lillie Kate Fagin and this distribution, William O. Richardson, the public administrator of the city of St. Louis, took out letters of administration upon the estate of Lillie Kate Fagin. As such administrator he instituted suit against the defendant, Nathan Cole, and the defendant, Rachel G. Metcalfe, to recover from them the personal estate belonging at her death to Lillie Kate Fagin.

The defendants, besides pleading the statute of limitation of five years, set up in their separate answers the foregoing facts as a defense to plaintiffs petition. To this answer plaintiff demurred. This demurrer was overruled,- and plaintiff refusing to plead further, judgment was entered for the defendants.

Plaintiff appeals.

It may be conceded at the outset that the legal title to personal property of a deceased person is in the administrator who holds it in trust for heirs and legatees, and that he alone can sue for and recover the -assets of such deceased- person. But the mere legal title passes to the administrator; the equitable title descends to the heirs or legatees who are entitled to distribution. The defense interposed here is an equitable one, and sets up that there were no debts against the deceased, and that by agreement between those entitled to the property it had been transferred to one of their number, the defendant Rachel G. Metcalfe, and the effect of the demurrer is to admit these defenses to be true.

But plaintiff contends that the defenses pleaded afford *377no barrier to the administrator’s rights of recovery either at law or in equity. In support of this position Bartlett, Admr., v. Hyde, 3 Mo. 490; Naylor’s Admr., v. Moffatt, 29 Mo. 126; Smith v. Denny, 37 Mo. 20; McPike v. McPike, 111 Mo. 216; and Green v. Tittman, 124 Mo. 372, are relied upon. But these decisions go no farther than has already been conceded, that is, that the administrator is, under ordinary circumstances, entitled to the possession of the personal property of the deceased, and that his right to sue for such possession is exclusive of all others. The law does not require the doing of an useless and unnecessary thing, and this would be the result in this case if plaintiff’s position be sustained, and defendants compelled to pay him the value of the assets belonging to Lillie Kate Fagin deceased, when no part of it is needed for the payment of debts, in order that he may in turn pay it back to the defendant Metcalfe, who owns the interest of all the other heirs.

In the case of McCracken v. McCaslin, 50 Mo. App. 85, Robert H. McCracken died intestate possessed of personal property and leaving several heirs who were of age, but no debts. The heirs made distribution among themselves of all the property.

Afterwards, at the instance of one of the heirs, the probate court, after giving notice to those first entitled to administer, upon their refusal, ordered the public administrator to take charge of the estate. A motion was made by the plaintiffs in the probate court to set aside this order for the reason that distribution had been made, and that there were no debts. The motion was overruled and upon appeal to the circuit court the motion was sustained and the administrator appealed.

It was held, when there are no creditors, and the heirs are of age, an administrator would be a mere naked trustee; and it would seem idle as well as a waste of the estate to go through *378•the form of administration against the will of the heirs, as evidenced by their settlement and distribution of the property among themselves, which all the parties would be estopped from disputing if the adjustment was made without fraud or imposition.

In Walworth v. Abel, 52 Pa. St. 370, it is said: “While the mere legal title passes to the administrator, the equitable descends upon the parties entitled to distribution. If there be no creditors, the heirs have k complete equity in the property, and if they chose, instead of taking letters of administration, to distribute it by arrangement made and executed among themselves, where is the principle which forbids it? The parties to such an arrangement, executed, would be forever equitably estopped from disturbing it, as amongst themselves, upon the most familiar principles of justice........If there be no creditors in this case, the recovery of the value of the cattle would be only for the purpose of distribution among the heirs; but this they have done themselves, by an appropriation of the valúe already, and thus is accomplished what can not he done over again without breaking up the arrangement, and without manifest injustice to the defendant.”

To the same effect is Weaver v. Roth, 105 Pa. St. 408.

In the case of Needham v. Gillett, 39 Mich. 574, this language is used: “Where there are no creditors, and the heirs of age, an administrator would be a mere naked trustee, •and it would seém idle, as well as a waste of the estate, to go through the form and expense of administration against the will of the heirs, as evidenced by their settlement and distribution of the property among themselves. When, under such circumstances, a settlement and domestic distribution is made without fraud or mistake, there is no necessity for administration.”

So in Woodhouse v. Pheps, ,51 Conn. 521, it was held *379that while it is true, as a general proposition, that the title to personal property vests in an executor or administrator, yet he is a mere trustee for creditors and for heirs or legatees; and where the property is not wanted for the payment of debts, and is rightfully in the possession of the persons who have the equitable title to it, the naked title of the executor or administrator is not sufficient in equity against such equitable and rightful possession.

The same rule is announced in more emphatic terms if possible in the case of Lewis v. Lyons et al., 13 Ill. 117, in which it is held that an administrator has the legal title to the personal estate of his decedent, as trustee for the payment of debts, but after they are paid the residue of such estate belongs to the heirs; that a court of equity is not bound at all times to enforce a strict legal right, and will not require an heir to pay over money to an administrator when such administrator has no debt to pay, nor any use to make of it connected with the estate, merely that he .may retain it for his own benefit, or be paid his costs and commissions.

In fact our attention has not been called to an authority to the contrary.

But plaintiff insists that the defense is simply a collateral attack upon the order and judgment of the probate court directing him as public administrator'to take charge of the estate, which if true, the facts pleaded as such defense affords no defense to this action, for the validity of that order can not be questioned in this action. [Riley’s Admr., v. McCord’s Admr., 24 Mo. 265; Naylor’s Admr., v. Moffatt, 29 Mo. 126; Green v. Tittman, 124 Mo. 372.] But we are unable to assent to this contention; upon the contrary, the question simply is as to the right of the administrator to the possession of property, to which he is only entitled for the payment of debts against the 'estate, and for distribution among the heirs *380of deceased where there are no debts, and distribution of the property was made more than ten years before the institution of this suit among the heirs by common consent, wh'o were of age and competent to do so. We know of no principle of law which forbids such a distribution by the heirs under such circumstances, and if it would not be a mockery of justice for a court of equity to require the defendants to pay over to plaintiff when there are no debts against the estate to pay, and no legitimate use for it in his capacity as administrator, merely for the purpose of allowing him to obtain it and use it, and then pay it back to them, less his costs and commissions, it is difficult to say what would.

For these considerations the demurrer to the answer was properly overruled, and as plaintiff declined to plead further, the judgment rendered for defendants thereon, should be affirmed. It is so ordered.

Sherwood, P. J., and Gantt, J., concur.