Wernecke v. Kenyon's Administrator

| Mo. | Oct 15, 1877

Henry, J.

— In 1861, H. E. Kenyon died intestate, and letters of administration on his estate-were granted to his widow, Músidora Kenyon, and subsequently to her second husband, Ira L. Wood. Kenyon owned certain lots in Eredericktown, and other lots in Ironton. Plaintiffs were Wood’s sureties on his bond as administrator. The deceased was indebted to Madison county on account of money borrowed by him of the school fund, and the demand was allowed against the estate by the probate court of said county.

The administrator, Wood, obtained an order from said court, to sell the real estate of Kenyon at Eredericktown to pay off said allowance, and at the sale, his wife became the purchaser, and he so reported to the probate court, but the purchase money was not paid, and Madison county collected her debt against Kenyon of the plaintiffs, sureties on Wood’s bond. Plaintiffs then instituted a suit in the Madison circuit court against Wood and wife, and Wood as administrator of Kenyon’s estate, alleging that the sale to Mrs. Wood was fraudulent, and asking that it be set aside, and that plaintiffs be substituted to the rights and claims of Madison county against said estate and for general relief.

The court made a decree “ that the .plaintiffs have and recover from said defendants, Ira L. and Musidora Wood, the sum of $789.59, being the amount paid in manner and form as aforesaid, by the plaintiffs, and interest on the part thereof paid to the county of Madison, at the rate of ten per cent, per annum from the date of said j udgment, which said sum of $789.59 is to bear interest at the rate of ten per cent, per annum from the date of this judgment until paid, together with cost of this suit. It is further considered, ordered and adjudged, and decreed, that plaintiffs, by reason of the premises, be subrogated and substituted to all the rights which said county of Madison, for the use of all the inhabitants of said township aforesaid, had or might have had in said property hereinbefore described, belonging to said estate of said H. E.Kenyon, deceased, before the payment of said sum of money to said county, as aforesaid, by plaintiffs, in manner and form as found aforesaid, by the court; that said sale and the deed of said property, hereinbefore described in the finding of the court, be, and the same are hereby set aside, canceled and .forever held for naught, and that the whole of said property hereinafter described, and all other property belonging to said estate of Ií. E. Kenyon, deceased, not now disposed of, be charged with the payment of said sum of $789.59, with the interest thereon at the aforesaid rate of ten per cent, per annum, and that the said sum of $789.59, debt and damages, and the interest aforesaid found to be due the plaintiffs, together with their costs, be levied on said real estate of II. F. Kenyon, deceased, and described as follows, (then follows description of the lots inEredericktown and Ironton); and it is further ordered and adjudged by the court, that if said premises above described, and the other property belonging to said estate, not now disposed of, if any there be, is not sufficient to satisfy said debt, damages and costs, that the residue of said debt, damages and costs be levied of the goods, chattels, lands and tenements of said defendants.”

Plaintiffs caused an execution to issue on said judgment from the clerk’s office of the Madison circuit court, which, on motion, was quashed by that court, and on an appeal to this court, the judgment of the court on the motion to quash the execution, was affirmed. Wernecke et al. v. Wood, Admr., 58 Mo. 354. Plaintiffs then presented said judgment in the probate court of Madison county for allowance, against the estate of Kenyon, and the court allowed it in the sixth class of demands against said estate, and from that judgment of the probate court the administrator appealed to the circuit court of Madison county, which reversed the judgment, and plaintiffs have prosecuted their appeal to this court.

The demand of Madison county against Kenyon’s estate, having once been allowed in the probate court, was merged in that judgment. The decree of the court in Wernecke et al. v. Wood, Admr., reported in 58 Mo., did not revive the original demand, or find the existence of an indebtedness of 'the estate to the plaintiffs, but only subrogated them to the rights of Madison county, as those rights existed before plaintiffs paid the debt which the estate owed to Madison county

Those rights were to have the benefit of the allowance, and such orders of the probate court as might be necessary and proper to enforce its judgment in favor of Madison county and against Kenyon’s estate. The payment of the debt by the plaintiffs to the county, did not constitute them creditors of the estate, but creditors of the administrator, and only in equity could they be subrogated to the rights of Madison county. They had no legal demand against the estate, and we do not understand the decree of the court in "Werneeke against Wood asa judgment against the estate of Kenyon in favor of plaintiffs for the amount of their demand, but as subrogating plaintiffs to the rights of Madison county, and then charging all of the property of the estate with its payment, and decreeing its sale for that purpose. The circuit court could make the decre , setting aside the sale to Mrs. Wood and subrogating the plaintiffs to the rights of Madison county, but had no jurisdiction by its own process to enforce the balance of the decree, except that against Wood personally. This was distinctly held by this court in Wernecke et al. v. Wood, Admr., supra.

Napton, J.,

delivering the opinion of the court, observed : “ To cite authorities to prove that in this State a judgment against tbe administrator of a decedent could only be executed by a proceeding in the probate court, is unnecessary. It has so long been in our statutes that an examination of them is unnecessary.”

Plaintiff's, after the decree was rendered in that cause, in order to avail themselves of their rights under the decree, had but to procure an order of the probate court to sell the real estate of the deceased to satisfy the judgment of that court in favor of Madison county. This was evidently the meaning of the language of the court, and it is not an intimation that the judgment in Wernecke et al. v. Wood, Admr., should be allowed in the probate court.

But supposing that the judgment in that case was a judgment in favor of plaintiffs against Kenyon’s estate, the subject-matter was one of which that court had no jurisdiction. The act establishing the probate court of Madison county, conferred exclusive original jurisdiction upon that court, “ to hear and determine all suits and other proceedings instituted against executors or administrators, upon any demand against the estate of their testator or intestate,” Acts 1849, p. 436, § 4; and in Dodson, Admr. v. Scroggs, Admr., 47 Mo. 287, this court construing a section of the act establishing the probate court of Dade county, identical with the section above quoted, held that the circuit court had no authority to try causes against executors or administrators upon demands against the estate.

Bliss, J., said: “ But how can the circuit coui*t of Cedar or any other county have authority to try causes against executors or administrators of Dade, when the statute says that the probate court alone shall have the right to try them. The exclusive jurisdiction given to the probate court of Dade, by implication, prohibits all other courts from acting, the circuit court of Cedar as well as that of Dade.” The court in Wernecke et al. v. Wood, had jurisdiction of the cause, as to the matter of subrogation, (for that was not a demand against the estate,) but had no jurisdiction to enter a judgment for plaintiffs against the estate for $789.59, or any other sum. Plaintiffs, in fact, had no demand against the estate of Kenyon, and this is apparent upon the record, and although the judgment of the court is somewhat ambiguous, we do not construe it as a judgment against the estate for any sum of money.

The decree does not find that Kenyon’s estate was indebted to plaintiffs. It was not alleged in the petition, and the facts that were alleged showed that plaintiffs had no demand against Kenyon’s estate. So much of the decree as charges the property with plaintiffs’ claim against Wood individually, and decrees a sale of the property of the estate, was a mode provided for the execution of the decree for subrogation, which the court, as we have seen, could not do, and it was a nullity.

In Wernecke et al. v. Wood, Admr., supra, the court said: “ There could be no doubt of the power of the court to order the deed to be canceled, and to direct that the land conveyed be considered as a part of the estate of Kenyon, but then the claim would take the course prescribed by our statute in relation to claims against the estate of a decedent.”

The judgment of the circuit court is affirmed.

All concur, except Sherwood, C. J., absent.

Aeeirmed.