171 Mo. 675 | Mo. Ct. App. | 1903
During a contest of the alleged • will of Alois Soderer, the plaintiff was appointed by the probate court administrator pendente lite of the estate. This suit was begun in-the circuit court by the plaintiff in that capacity to recover of the defendants personal property and real estate which the petition alleges belonged to the estate and came into the hands of defendants as trustees under the will.
The petition alleges that personal property of the value of $5,800 belonging to the estate, was turned over to the defendants by the executrix before the plaintiff’s appointment as administrator pendente lite, and is now
The plaintiff is of course entitled to possession of all the personal property belonging to the estate. The petition alleges that before the plaintiff’s appointment the executrix turned over to the defendants personal property belonging to the estate of the value of $5,800, and that defendants still hold the same. But the petition does not state of what that personalty consisted, and therefore there is no issue tendered as to personal property. There could be no valid judgment against the defendants for personal property when the property is not described and there could be no description in the judgment if there is none in the petition. It was not error, therefore, to sustain the demurrer to the petition regarding it as a demand for personal property.
' The main point in dispute, however, as we judge from the briefs before us, is as to the right of the administrator pendente lite to the possession of the real estate owned by the deceased at the time of his death.
All our law on the subject of the office of administrator pendente lite, is contained in the following-statute :
Section 13, Revised Statutes 1899: “If the validity of a will be contested, or the executor be a minor, or absent from the State, letters of administration shall
The commission that that statute authorizes to be issued is, “ letters of administration. ’ ’ Those letters are to be issued by the probate court. The duties of the person to whom the letters are issued are to take charge of the property and administer the same according to law under the direction of the probate court, and when the contest is ended to account to the executor or regular administrator, under the eye of the probate court, and pay and deliver to him the money and property of the estate. He is to all intents and purposes for the time being the administrator of the estate, neither more nor less. It is not contemplated that he will wind up and distribute the estate, but that he will collect it and hold it and make disbursements if the court so orders. But the character of his office is essentially that of an administrator of the decedent’s estate, the tribunal in which he must render his accounts is the probate court, and the laws which prescribe his powers and duties are the laws of administration. He has no greater powers than a regular administrator has and no more comprehensive title. He is to do, while his office lasts, whatever an administrator should do to protect the interests of the estate for those who are entitled to its benefits. He may sue for and collect its assets, guard the estate in the matter of demands against it, and, if it appears that there will not be sufficient personalty to pay debts, he may apply to the probate court and obtain authority to take possession of the real estate and collect the rents therefrom. But an administrator pendente lite has no more authority to take possession of the real estate than has a regular administrator. He has nothing to do with the controversy over the will. The heir is as able to protect his inheri
The learned counsel for appellant cite some decisions of this court in which there are expressions to the effect that the office of the administrator pendente lite is more like that of a receiver than of a general ad-.. ministrator. Those expressions, however, are to be understood in the light of the facts of the case then under consideration. In Lamb v. Helm, 56 Mo. 420, the widow had been appointed administratrix with the will annexed, and afterwards a contest of the will was instituted, her office was suspended and an administrator pendente lite was appointed. One of the questions in that case was whether the widow was entitled to be appointed administratrix pendente lite under the statute which gave preference to the widow to be appointed to administer her husband’s estate. The court held that the statute related to the selection of one to be the general administrator of the estate and did not govern the selection of an administrator pendente lite. It was in that connection that the court said that an administrator pendente lite was more in the nature of a receiver than of a general administrator, meaning thereby that his chief duty was to hold and preserve the estate while the litigation was pending; that he* was more of a custodian than a final distributor. It was never intended to say that such an administrator had like powers of a receiver in chancery. As we have seen, all the
In Hawkins v. Cunningham, 67 Mo. 415, to which we are referred, reference is made to allowing an administrator pendente lite commissions on rents collected by him. But there was no question in that case as to the right of such an administrator to take charge of the real estate. Of course, if he comes rightly into possession of the real estate, in the manner prescribed by law, he is entitled to commissions on the rents as on any other money in his hands. There is no authority in that case for the contention now made by appellant.
The strongest reliance of appellant is in certain language used in the opinion in the case of In re Estate of Soulard, 141 Mo. 672. In that case the administrator pendente lite had (by what authority does not appear) taken possession of the realty, managed it and collected the rents during the period of the temporary administration and in.his final settlement had accounted for and paid over the rents collected and the question was, was he entitled to commissions on the rents? It was held that he was. In the opinion in that ease language is used to the effect that such an administrator is in the nature of a receiver and that he has the right to take possession of all the estate, real and personal. The language is to be understood, however, as referable to the facts of the case. If it is to be considered to mean that an administrator pendente lite has the right, by virtue of his office, to take possession of the real estate which was owned by the decedent at the time of his death, without an order of the probate court, and when not needed to pay debts, it has not our approval.
There are no facts stated in this petition that entitle the plaintiff to take possession of the real estate mentioned therein, and therefore the court’s judgment on the demurrer was correct.
The judgment is affirmed.
