61 Mo. App. 47 | Mo. Ct. App. | 1895
Lead Opinion
Plaintiff sues the administrator of the estate of Isaac Walker, deceased, upon an alleged
On the trial there was evidence tending to show that the services sued for were rendered by plaintiff as alleged in the petition, and that they were reasonably worth $500. The court instructed the jury that, if the services sued for .were performed within five years, plaintiff was entitled to recover of defendant, as administrator, their reasonable value, if the jury believed from the evidence he promised in that capacity to pay therefor. There was a verdict and judgment for plaintiff for $553.75, which was ordered to be certified to the probate court as a demand against the estate in the hands of the defendant as administrator. Defendant has brought the case to this court by appeal.
The controlling question presented by this record ■ is whether or not the contract made by appellant, as administrator, to pay respondent for his services as an accountant, would entitle the latter to an action against the former in his representative capacity. An affirmative answer to this question would lead to an affirmance, while a negative answer would involve the reversal of the judgment in this case.
A personal representative is merely a statutory trustee. Smarr v. McMaster, 35 Mo. 349. He has no principal whom he can bind by his contracts. Studebaker Mfg. Co. v. Montgomery, 74 Mo. 101. “When a trustee contracts as such, unless he is bound no one is bound, for he has no principal. The trust estate can
These authorities demonstrate that the respondent is not entitled to establish a demand against the estate in appellant’s hands as administrator by an action at law, based upon his contract to pay out of the assets of the estate for the services rendered him as such administrator after the death of his decedent.
The conclusion reached in this case does not contravene the opinion of the majority of the court in Nichols v. Reyburn, 55 Mo. App. 1. In that case the ground, on which the petition was held to state a cause of action, was that it presented facts showing the plaintiff therein had no adequate remedy at law. It was, therefore, held that a proceeding would lie in equity to charge the estate with the reasonable value of the services of an attorney rendered for its benefit, in
Concurrence Opinion
(concurring). — As the majority of the members of the court concur in the disposition made of this cause in the preceding opinion, but for reasons different from those therein stated, it becomes necessary to state those reasons.
An administrator under our statute is not the personal representative of the decedent, but a mere statutory trustee, with powers to bind the assets in his hands whenever authorised by statute to do so and no further. Within these limits he may bind the estate in his contracts. We have so decided after full consideration in Nichols v. Reyburn, 55 Mo. App. 1, and see no reason, for changing our opinion in that regard. It is desirable, wherever this can be done, that expenses thus incurred by the administrator should be paid by him in the first instance and accounted for in his settlements with the estate; but cases may arise, of which the Nichols case was a fair illustration, where this is impracticable. To hold that in such cases a party contracting with the administrator or on the credit of the estate is remediless, although the administrator contracts within his statutory powers, simply because the administrator may die or become insolvent, would be a holding untenable on any sound legal principle.
The case at bar, however, is different. The main
It thus results that the uncontroverted facts, as presented by plaintiff’s own evidence, debar him from any recovery against the estate, or against the administrator in his representative capacity, which is the same thing. The judgment, therefore, must be reversed.
