197 P. 888 | Ariz. | 1921
This is an action by the Merchants’ & Stockgrowers’ Bank, administrator of the estate of Nasif Tamer, deceased, against the Stockmen’s State Bank, administrator of the estate of Lucy Elia Castillo, deceased, for the recovery of $4,955, the value of 354 head of sheep, twenty-four stock cattle, and two work horses. Prom a judgment against it for $3,540, the value of the sheep, and an order de
Nasif Tamer, a Syrian by birth, but for many years a resident of Apache county, Arizona, died there December 23, 1916, and on February 10, 1917, the plaintiff-appellee, Merchants’ & Stockgrowers’ Bank, was appointed administrator of his estate. Lucy Elia Castillo, also a Syrian by birth, died in the same county on March 22, 1919, and her mother, Elena Elia, the following day. On April 19th, thereafter, the defendant-appellant, the Stockmen’s, State Bank, qualified as administrator of Lucy Elia Castillo’s estate.
Nasif Tamer and Elena Elia were the owners separately of several bands of sheep and in 1914, 1915, and 1916 up to his death, Tamer ran Elena Elia’s sheep on shares. On December 28, 1916, and again on February 6, 1917, by bill of gift confirming the same, Elena Elia executed and delivered to her daughter, Lucy Elia, a bill of sale transfering to her, among other things, 3,800 head of sheep in which was included 354 head, the ownership of which, along with that of a few cattle and horses, is the subject matter of this action, though the cattle and horses are not involved in the appeal. An inventory and appraisement was filed in the Nasif Tamer estate, in which these 354 sheep were listed as a part of the assets, and a short while thereafter, to wit, on April 19, 1917, the superior court of Apache county, sitting in probate and acting upon the petition of Lucy Elia Castillo, then Lucy Elia, after a hearing at which evidence was taken, entered an order directing appellee, the administrator of the estate, to turn over and deliver to -Lucy Elia the 354 sheep, she being in its judgment the owner thereof. Certain alleged heirs of Nasif Tamer were dissatisfied with this order, and ‘appealed therefrom to the Supreme Court of the
“That she'said Lucy Elia Castillo would hold said personal property and sheep pending said appeal, and that if the Supreme Court should hold said delivery to Lucy Elia Castillo was an erroneous delivery, then said personal property and sheep so delivered to said Lucy Elia Castillo should be delivered back to plaintiff.”
Appellee alleges also that appellant, upon qualifying as administrator of her estate on April 19, 1919, took possession of these sheep and other personal property with full knowledge of the foregoing agreement, of the aforesaid probate order, and of the opinion of the Supreme Court of Arizona rendered March 31, 1919, holding it null and void and of no force and effect whatsoever because made and entered without jurisdiction. Estate of Nasif Tamer, 20 Ariz. 232, 179 Pac. 644. On September 19th, thereafter, appellee demanded of appellant the return of the 354 sheep, the cattle, and the horses, but the request was refused, and the complaint, filed on October 20th following, alleged what the court found to be a fact, that appellant, Stockmen’s State Bank, “wrongfully and unlawfully converted the said property and sheep to its own use,” though it was at the same time found, as appellant had alleged:
“That the 354 head of sheep mentioned in the complaint, and which had been turned over as aforesaid to Lucy Elia, were not among the property of Lucy Elia Castillo taken over by defendant at the time that defendant took charge and possession of all of the property of said Lucy Elia Castillo, deceased, as aforesaid; that the same had theretofore, on the fourteenth day of May, 1917, been sold and delivered to one E. R. Chambers.”
The complaint alleges possession and' conversion of the sheep by the administrator, but howhere refers to a conversion thereof by the intestate, Lucy Elia Castillo. Hence, it is urged in behalf of the demurrer that, since the action is founded, so far as the complaint discloses, on the wrong of the administrator rather than that of the intestate, it should have been instituted against the appellant, Stockmen’s State Bank, in its individual capacity. This contention is correct because an estate is in no way responsible for wrongful acts of its administrator or executor and cannot be held liable for a tort committed by him, nor for damages for the breach of a contract entered into by him; neither are executors liable as such for contracts made by them concerning the estate. Ferrin v. Myrick, 41 N. Y. 315; Austin v. Monroe, 47 N. Y. 360; Nickals v. Stanley et al., 146 Cal. 724, 81 Pac. 117; Sterrett v. Barker, 119 Cal. 492, 51 Pac. 695; Eustace v. Jahns, 38 Cal. 3. But—
“Trover will lie against the representative personally, for a conversion by him, though the property came to him with the estate of his decedent.” Shouler, Executors and Administrators (2d ed.), par. 385, note.
Appellee urges, however, that the action is based on the intestate’s conversion of the property, and that therefore the proper party defendant is the administrator in his representative capacity, citing as authority paragraph 969, Revised Statutes of 1913, which reads as follows:
“Any person or his personal representatives may maintain an action against the executor or administrator of any testator or intestate who, in his life
This contention would undoubtedly be correct if a conversion by appellant’s intestate had been alleged, but for the purposes of the demurrer the court could only look to the complaint, and since no such allegation appeared therein, no facts are disclosed making this paragraph applicable. The demurrer should have been sustained, but it was overruled, and the case tried as though a good cause of action against the Stockmen’s State Bank in its representative capacity had been alleged. This necessitates a consideration of certain of the other assignments.
It is urged by appellant that there is not sufficient evidence to support the court’s finding regarding the agreement under which appellee delivered the sheep to Lucy Elia Castillo on April 19, 1917, but, inasmuch as there is substantial testimony upholding this disputed fact, we accept it as correct, and will dispose of the appeal on this basis.
By the terms of this agreement it was the duty of Lucy Elia Castillo to hold the sheep in her possession, pending the appeal from the probate order, that she might be in a position to return them to appellee in case the Supreme Court should hold their delivery to her erroneous; but, instead of doing this, she sold them on May 14, 1917, just twenty-five days after they were delivered to her, took the purchase price thereof, and used it as her own, thus placing it beyond her power to comply with her agreement if the event requiring her to do so should occur. In its decision of March 31, 1919, the Supreme Court held, in effect, that the delivery of the sheep to her was erroneous. She therefore sold what belonged to another, so far as the record discloses, and in so doing was guilty of
The fact that the merits of the controversy between appellee and appellant’s intestate as to the actual ownership of,the sheep were not determined is not material. The decision having held the probate order directing delivery null and void, any delivery made in pursuance of it was erroneous, and, under the agreement, nothing else had to be decided before the parties might know whether the sheep should be returned. The tribunal for determining whether the deliyery was erroneous having been agreed on, neither party can be heard to complain because the result arrived at by the tribunal was reached by applying principles different from those the parties may have thought necessary to attain that end.
It is not apparent upon what theory the finding that appellant “wrongfully and unlawfully converted the sheep to its own use” was made, after it had been established, and found to be a fact, that these same sheep were not a part of the assets of the estate of Lucy Elia Castillo taken over by appellant as administrator, but had been sold by her nearly two years before her death. These findings are contradictory. The mere statement of them is sufficient to disclose the impossibility of á conversion by appellant, for it could not appropriate to its own use something that had not been in its possession. Neither in its brief nor testimony, however, does appellee attempt to uphold its allegation of a conversion of the sheep by the appellant, but urges that this portion of the complaint as well as the findings to the same' effect,
Appellant urges that, inasmuch as its intestate was guilty of a conversion of the sheep when she sold them to Chambers on May 14, 1917, and this suit was not begun until October 20, 1919, more than two years and six months thereafter, any cause of action appellee may have had for the value of the sheep is barred by the limitation provided in paragraphs 710 and 725, Revised Statutes of 1913, the first of which reads as follows:
“There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: ... (3) Actions for detaining the personal property of another and for converting such personal property to one’s own use.”
Paragraph 725 merely provides for the suspension of the running of the law of limitation during the period between the death of thb person against whom the cause of action exists and the qualification of the administrator or executor of such deceased person’s estate. In this instance the intestate, Lucy Elia Castillo, died on March 22, 1919, and appellant quali
“where the taking is lawful but there was an unlawful disposition of the property, the statute of limitations begins to run from the date of the latter.”- 38 Cyc., pp. 2064, 2065.
In the case of Johnson v. White, 13 Smedes & M. (Miss.) 584, the court said: .
“An unlawful disposition of property rightfully in possession is a conversion, and the statute begins to run from the time of such disposition. And it is immaterial whether the plaintiff knew of the conversion or not, if no fraud was practiced to prevent his knowledge. ’ ’
The Supreme Court of Montana, in the case of Yore v. Murphy, 18 Mont. 342, 45 Pac. 217, uses this language:
“Where a husband sold a flock of sheep belonging to his wife without her knowledge, the statute began to run against her, in favor of the purchaser, at the time of the sale, and not at the time of her discovery of the sale.”
In 17 R. C. L. 765, paragraph 131, the rule is stated as announced by these authorities, and there seems to be no holding to the contrary.
There is no allegation, nor was any evidence offered, of an attempt to conceal the sale, or of fraud connected in any way therewith, and while it is true that appellant’s intestate agreed to hold the property pending the appeal, yet the superior court, after a hearing at which evidence was taken sufficient to con
Appellee contends further that limitation did not begin to run until the Supreme Court rendered its decision March 31, 1919, because ownership until that time was unknown. But appellant’s intestate, according to the findings, took possession of the sheep in pursuance of the agreement, and not in obedience to the probate order. Hence, upon a breach of her contract to retain possession, a cause of action arose in favor of appellee, regardless of the result of the appeal, and the limitation of the statute was in motion from that date.
It is unnecessary to consider the other questions discussed in the briefs. The conclusion reached on the foregoing assignment necessitates a reversal and judgment for appellant. Such is the order.
ROSS, C. J., and BAKER, J., concur..