82 Mo. 542 | Mo. | 1884
The defendant, Heinrichs, qualified and acted as the executor of the last will and testament of Agnes Heinrichs, deceased, in Cole county. He gave bond as such on the 6th day of November, 1874. The petition in this case alleges, after the usual preliminary averments, that-, on the 11th day of November, 1875, the plaintiffs proved up an account against said estate for the sum of $781.77, which the probate court then allowed and placed in the fifth class. This suit is brought by plaintiffs against said Heinrichs and the sureties on his official bond to recover the amount of said allowance. The breach assigned is, that the court of probate aforesaid at its October term, 1876, ordei’ed said executor to pay immediately all demands, against said estate, “ and although plaintiffs at that time held and do still hold their demands against said estate, the said Heinrichs, as such executor, has failed to pay the same or any part thereof, although requested so to do.”
The answer, after tendering the general issue, except, etc., admitted that the court made the order recited in the petition and then averred that said Heinrichs had complied therewith until he was prevented from further compliance by the subsequent action of the county court, on the 17th day of November, 1877, when he was relieved and discharged from further administering on said estate at
The order of the probate court, relied on by plaintiffs, was made on the 2nd day of May, 1877, instead of October, 1876, as alleged in the petition, and is as follows:
“Ordered by the court, that John E. Heinrichs, executor of the said estate pay immediately all demands against said estate.”
The plaintiffs evidence showed that the administrator de bonis non had, since his appointment, paid on plaintiffs’ claim the sum of $250, December lltli, 1881. Tim defendants offered to make proof, substantially, of the facts set up in the answer, which, on the objection of plaintiffs, the court excluded as incompetent and constituting no defense to the action. Defendants, also, offered in evidence the receipt of said Tennessee Mathews, administrator as aforesaid, to said Heimichs, acknowledging the receipt from him of all the moneys, effects, etc., shown to be in the hands of the intestate by his last settlement. This the court also excluded. Defendants then i ntroduced said Heinrichs as a witness, by whom they attempted to prove that the order for the payment of all claims, purporting to have been made on him by the county court, was made without
The court found the issues for the plaintiffs, and rendered judgment against defendants for the balance due on said claim.
Defendants bring the case here on appeal.
The principal question presented by this record is the right of the creditor plaintiffs to maintain this action against the former executor after his displacement by the appointment of his successor and his settlement with such successor. It is the manifiest design and scheme of the administration law that the assets of the estate should all the while be in the hands of the acting executor or administrator, so as to be subject, in the manner designated by the statute, to the jurisdiction and supervision of the probate court. To this end it is provided by sections 48 and 49, Revised Statutes, that: “ 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, * * 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 such manner as the court shall order, on final settlement with such executor, or his legal representatives to be made on motion of his successor *
“If the executor or administrator resigns, * * it shall be the duty of his successor * * to move the court to compel the executor, * * having resigned, to make final settlement; and on such motion, after due notice to such executor, * * the court having jurisdiction shall ascertain the amount of money * * unaccounted for at the time of his resignation * * and to enforce such order and judgment against such administrator or executor and his sureties, if they had due notice of the proceeding *
The fact of such disbursement and when made, should be reported by the executor to the probate court for supervision and approval before he could take credit therefor. If the position of plaintiff in this action is maintainable,, how is the amount claimed by the executor to have been disbursed under such order to be inspected and approved as it should be by the probate court ? At the time Heinrichs was displaced by the appointment of Mathews he had. not complied with the order. He is permitted by the court-to make final settlement, and take the receipt of his successor and go out of court. After that the probate court lost jurisdiction over him as such executor. He is no longer in court. Caldwell v. Lockridge, 9 Mo. 362. Judge Scott said, in the course of his opinion in this case: “A court would not permit an executor or administrator to resign who was in arrears to an estate, until the balance against him had been settled. He would not thus be permitted to escape the conti’ol of the court in coercing the payment of the debts he may owe the estate.” According to plaintiffs’ theory, when Heinrichs made his settlement-with his successor he should have withheld from him all funds necessary to discharge all the demands against the estate in existence at the date of the order in question; and as a matter of course he could pay them off after he had ceased to be executor. If so, how could the court of probate ascertain and pass on the amounts thus claimed to have been so disbursed by the executor? The court has lost its j urisdiction .over him, and is without power to call him before it to exhibit his accounts. It thus becomes apparent that the remedy against the outgoing administrator or executor is placed in the hands of his successor. He can compel him under summary process as pointed out by statute, to make settlement and account for all the undisposed of assets; or he may bring action on his bond with Or without settlement, for failure to account. State ex rel. v.
This question, we think, has been fully determined in repeated decisions of this court. State ex rel. v. Hunter, 15 Mo. 490, was an action by the administrator de bonis non .against the former administrator on his bond, alleging the receipt by him of a large sum of money as assets of the estate which he had failed to account for. A demurrer to this declaration was interposed and sustained. Scott, J., who delivered the opinion, said: “ The view of the court below, that an administrator de bonis non could not sue on the bond of a former administrator, was clearly erroneous. When there are debts to pay, he would seem tobe the only person that could sue.” In State ex rel. v. Fulton, 35 Mo. 323, the first administratrix on settlement in the probate court was ordered to pay the balance in her hands to her successor. Seven years having elapsed, without the first administratrix complying with this order, the distributees at law of the estate brought suit against her, alleging her failure to pay, that there were no debts of the estate unpaid, .and that the fund of right belonged to them. The court •say: “ The administratrix * * having made a settlement * * and having been, ordered by the court to pay the balance in her hands to her successor, the .administrator de bonis non, she and her sureties were liable to that successor, and not to the plaintiffs or other person interested in the estate. The remedy of the plaintiffs is against the administrator de bonis non.” The question came again before this court in State ex rel. v. Dulle, 45 Mo. 269. Bruns the first administrator died, after making an annual settlement, showing a considerable amount of assets in his hands liable to the claims of creditors. Letters of administration de bonis non were granted to one Chrisby, but the assets held by Bruns were not paid over to him, as Heinrichs claims he had done in this instance. Some of the creditors of the estate sued on the bond of the first administrator and recovered judgment. This court reversed the
It is probable that what is said in this opinion about a recovery by a creditor, in this form of action, producing inequalities in distribution, might have little weight in a case where the court had ascertained that there are assets sufficient to pay all the demands. But the suggestions-made in the preceding part of this opinion touching the policy and necessity of the probate court ultimately passing on the disbursments when made, even under the order, would render the reasoning of Judge Wagner quite applicable to this case. And it is noticeable that he concludes his opinion by approving the language of Scott and Bates, JJ., in the cases supra : “ That where the administrator dies, or is removed before final settlement, the administrator de bonis non can alone sue for the assets unadministered.” This enunciation is repeated in Kerrin v. Roberson, 49 Mo. 252 : “ The administrator de bonis non, and not the creditors, is the proper person to pursue the estate.”
And in Scott v. Crews, 72 Mo. 261, Norton, J., very distinctly asserts the doctrine that the assets ot'the estate
In Connelly’s Appeal, 1 Grant’s Cases, 368, that distinguished jurist, Black, C. J., says: “ It is w< 11 settled that a discharged executor or administrator is not to make distribution, but simply to pay over the fund to his successor.” He cites the case of Little v. Walton, 11 Harris 164, which is much in point. In that case a balance had been found by the proper court to be in the hands of the administrator for distribution. Ho died without making such payment. The widow sued the administrator of the estate of the first administrator of her husband for her distributive share, who pleaded in defense that he had paid the fund over to the administrator de bonis non. This same learned judge said, after referring to the local statute, much like our own in this respect: “ It was intended to keep the administration in one line and not compel the representative of a deceased administrator to make distribution of one part
IT. Counsel have discussed, at length, the question of the validity of the order made by the county court to pay all demands against the estate. It is contended that it does not show that Heinrichs was in court when it was made, or that ho made any settlement showing assets in his hands, nor does it appear from the order that the demands against the estate had ever been allowed. Whether the existence of the preliminary facts authorizing the county court to make the order, are to be presumed, in favor of its action, to have been found by the court, or whether the order is not, nevertheless, void on its face for not directing the executor to pay demands allowed against the estate only, instead of all demands, are serious questions. But in view of the conclusion already reached in the foregoing opinion, the determination of the validity of this order is not material.
It follows that the judgment of the circuit court is reversed and the cause remanded.