72 Mo. 261 | Mo. | 1880
This proceeding was inaugurated in the probate court of Saline county by plaintiff, as administrator de bonis non, of the estate of Thomas E. Cheatham, deceased, under section 67, page 81, Wagner’s Statutes, for the purpose of ascertaining the amount of money and all the rights, credits, deeds, evidences of debt and papers of every kind in the hands of defendant, Crews, former administrator of said estate, whose letters had been revoked, and having an order made for the rendition of same to plaintiff, and the enforcement thereof against Crews and his securities. Said cause was taken by appeal to the circuit court of Saline county, where it was, by consent, referred to a referee, who reported, as the result of his investigations, that there was due from said Crews to said estate the sum of $8,923.89. This report was confirmed, and a judgment entered accordingly, from which defendants have appealed to this court.
It is urged as a ground for the reversal of the judgment that the order of the probate court revoking the letters testamentary of Crews was a nullity, because it was made without proper notice. It is also objected that the probate court, notwithstanding the revocation of Crews’ letters, had no power to appoint an administrator de bonis
It is clear from these various statutory provisions that, upon the revocation of the letters of an administrator, the county court is clothed with power to have a settlement made in that court by the removed administrator. It is also clear that such settlement is to be made at the instance of the successor of such removed administrator, and it is also clear that the county court is invested with authority to appoint such successor, and that the exercise of. this power is not restricted to a class of cases, as contended for by counsel, where the administrator whose letters have been revoked has not paid all the debts against the estate. While an administrator holds the assets of an estate primarily for the payment of debts, the further duty is imposed upon him, after the debts are extinguished by payment, of paying to the heirs and distributees, under the direction of the court, what may remain in his hands applicable to that purpose. His full duty is not performed till both these things are done, where he has in his hands assets applicable
The cases of Spraddling v. Pipkin 15 Mo. 118; State v. Matson, 44 Mo. 305, and State v. Thornton, 56 Mo. 325, to which we have been cited by counsel as sustaining the objection we are considering, do not go to the extent claimed, viz: that when the debts of an estate have all been paid, an administrator de bonis non cannot maintain either such a proceeding as the present one or a suit on the bond of his predecessor. The case of Spraddling v. Pipkin has no application here; all that it decides is where the domicile of an intestate, at the time of his death, was in a foreign state, if an administration of his estate here has been finally closed by the payment of all debts against it, and the residue of the assets are transferred and carried into the foreign administration, an administrator de bonis non appointed here cannot recover them though brought again into this State. In the cases of State v. Matson and State v. Thornton, while they decide that when all the debts of an estate have been paid, the distributees may maintain an action on the administrator’s bond before an order of distribution is made by the county court, the right of the county court in such case to appoint an administrator de bonis non, where an administrator’s letters have been revoked, and the right of such administrator, when appointed, to main
The precise point presented in the case at bar has been more nearly approached in the case of the State v. Farmer, 54 Mo. 439, than in any other which has fallen under our observation, where it is said that “ the question in the case is, did money and assets come into the hands of the executors of Johnson, for which they have not accounted as such executoi’s, but which have been converted to their own use. * * It was only necessary for the plaintiff in his petition to refer to any unpaid allowances against said estate for the purpose of showing that said estate had not been finally administered, so as to authorize an administrator de bonis non to be appointed. When such an administrator was appointed, it is made the duty of the former administrator to pay over to him whatever remains in his hands, whether the estate is indebted or not. The administrator de bonis non, when appointed, has the right to sue for and collect the assets for the purpose of properly distributing the same.”
III. It is also urged that error was committed in charging the defendant with interest; It appears from the evidence that defendant was appointed administrator in 1857, and in October of that year made sale of the personal property of the estate aggregating $6,602.69, of which $37.24 was received in cash, and the balance, $6,565.45, in notes, with security, payable in twelve months, with interest from date at ten per cent. Of the notes thus received, one for $1,300, was executed by John T. Cheatham, one of the distributees; one by Ragsdale, the husband of .another distributee, for $675, and two by Johnson, the husband of another distributee, one of these being for $1,000 and one for $1,346.50, the whole aggregating $4,322. The
"While the exception taken to the report on the ground that interest was improperly charged, is not maintainable, the report and judgment entered upon it cannot stand because of the failure of the referee to allow defendant for claims of R. E. Snelling and Brown, Buxton & Co., which the referee found had been paid by him in July, 1859, aggregating $556.47. The balance reported by the referee as
The referee also clearly erred in not allowing defendant interest on the sum of $671.31, which he found had been paid to Ragsdale on the 13th day of May, 1869. The judgment should be diminished by the interest on said claim computed from the 13th day of May, 1869, at the same rate at which interest is charged in the report and with the same rests.
We are also of the opinion that defendant was entitled to a credit for the distributive share of John T. Cheatham, 5. settlement. and that error was committed in not allowing it to him. If the settlement made between said-Cheatham and défendant in 1865, hereinbefore referred to, is to be regarded as a payment made to Cheatham of his interest as a distributee, he was clearly entitled to a credit for the amount of such interest; if it is to be regarded as a purchase, whereby Crews acquired such interest, we can see no good reason why he should not have the benefit of it in this proceeding, especially in view of the disclaimer made by Cheatham, that he had no interest in the estate, and that all the facts were before the court necessary for the ascertainment of the amount of such acquired interest.