Rozell v. Harmon
| Decision Date | 24 February 1891 |
| Citation | 15 S.W. 432,103 Mo. 339 |
| Parties | Rozelle v. Harmon, Appellant |
| Court | Missouri Supreme Court |
Certified from Kansas City Court of Appeals.
Affirmed.
L. R Knowles, John Edwards and H. S. Kelley for appellant.
(1) An executor de son tort is liable only to the rightful executor. Craslin v. Baker, 8 Mo. 437; Graves v Poage, 17 Mo. 91; Magner v. Ryan, 19 Mo. 196; Simonton v. McLain, 25 Ala. 353; Foster v. Nowlin, 4 Mo. 18. (2) Our system of administration contemplates that estates shall pass through the hands of legal representatives and that the property and assets of the estate shall be applied to the payment of debts of the same class without partiality or preference. State v. Moore, 18 Mo.App. 411; Pearce v. Calhoun, 59 Mo. 271; Titterington v. Hooker, 58 Mo. 593. (3) In those states in which the statutes have attempted to place creditors upon an equality in the matter of payment, the courts have declared that there can be no such person as an executor de son tort in the sense of the English law. Dixon v. Cassell, 5 Ohio 533; Fox v. Van Norman, 11 Kan. 214; Barasien v. Odenn, 17 Ark. 123; Rust v. Wetherington, 17 Ark. 129; Ausley v. Baker, 14 Tex. 607; Green v. Rugeley, 23 Tex. 539.
E. Van Buskirk and T. C. Dungan for respondent.
(1) The court properly refused defendant's instruction in the nature of a demurrer to the evidence. The defendant was an executor de son tort, by reason of his intermeddling with the estate of Ross, and liable to a creditor as well as to the right executor. 1 Williams on Executors [6 Am. Ed.] top pp. 296, 298, 305, 309; Foster v. Nowlin, 4 Mo. 18; Craslin v. Baker, 8 Mo. 437; Graves v. Poage, 17 Mo. 91; Magner v. Ryan, 19 Mo. 196; Swift v. Martin, 19 Mo.App. 488; Kelly's Probate Guide, sec. 146. (2) Under our system of jurisprudence the common law and statutes and acts of parliament, made prior to fourth reign of James I., which are of a general nature, not repugnant or inconsistent with the constitution of the United States, or of this state or the statute laws in force for the time being prevail, and shall be the rule of action and decision, etc. R. S. 1879, sec. 3117; Lindell v. McNair, 4 Mo. 380; Picotte v. Cooley, 10 Mo. 199; Landes v. Perkins, 12 Mo. 239; Paddock v. Walsh, 15 Mo. 525; Miller v. Dunn, 62 Mo. 216. (3) And statutes in derogation of common law must be strictly construed, and are to receive such construction as not to allow them to infringe upon the rules or principles of the common law to any greater extent than is plainly expressed. State v. Clinton, 67 Mo. 380; Bridge Co. v. Ring, 58 Mo. 491; Yankee v. Thompson, 51 Mo. 234. (4) Our administration act does not in express terms, or even by implication, take away from a creditor of an estate his common-law right to proceed against an executor de son tort, although it gives such creditor the right to administration, and to have estate placed in hands of public administrator. R. S. 1879, secs. 7, 8, 9; 1 Williams on Ex'rs [6 Ed.] top p. 305; Swift v. Martin, 19 Mo.App. 488, and cases last above cited. (5) In most, if not all, of those states in which executors de son tort do not exist, or are not recognized either, the common law does not prevail, or the subject is controlled by express statute. Minnesota Stat. 1878, chap. 77, sec. 5; Noon v. Finnegan, 13 N.W. 197, and statutes therein cited; Noon v. Finnegan, Minn. Sup. Ct., May 15, 1884; 19 N.W. 391.
This suit was commenced in the circuit court of Holt county. Plaintiff was a creditor of one, B. W. Ross, deceased. The suit was for the purpose of recovering the amount of the debt from defendant, on the ground that he had wrongfully appropriated and converted the assets, belonging to Ross' estate to his own use. Plaintiff recovered judgment in the circuit court, and defendant appealed to the Kansas City court of appeals where the judgment was reversed. The case was certified to this court by the court of appeals, on the ground that the decision rendered therein was in conflict with the decision of this court in the cases of Foster v. Nowlin, 4 Mo. 18, and Magner v. Ryan, 19 Mo. 196.
The question presented by the record in this case is sufficiently stated by Judge Philips (29 Mo.App. 578) to be, "whether there can be, under the probate system of this state, an executor de son tort in so far as to authorize a single creditor of the intestate to maintain an action of trover against him, as here sought, and thereby appropriate the whole assets to the payment of plaintiff's debt."
The system provided by the laws of our state, for the settlement of the estates of deceased persons, was evidently intended to be exclusive of all others. The constitution provides for the establishment of a probate court in each county, which shall have jurisdiction in all matters pertaining to probate business.
The laws of the state, governing the procedure in the management and settlement of estates, are ample and sufficient to meet any emergency that may possibly arise during administration. They provide for the appointment of executors and administrators; for the preservation of the property, and the collection of the debts of the estate. They also provide summary and efficient proceedings for the discovery of assets and for their recovery from the possession of one who intermeddles with them. Under them any creditor can have an administrator appointed; each county is provided with a public administrator, already qualified, whose duty requires him summarily to take charge of all estates in which the property is left in a situation exposed to loss or damage, and the court is given power to require him to take charge of any other estates in case of necessity. Ample provision is made for the allowance and classification of debts; converting the assets into money and paying the debts of all creditors pro rata according to classification. Executors and administrators alone, under these laws, can recover the assets or damages for its conversion.
All these provisions of the law are wholly inconsistent with the idea of executors de son tort as at common law. The administration laws of the state do not recognize the right to wrongfully administer, nor the right of one creditor to secure payment of his debt to the exclusion of others.
It is insisted by plaintiff that this state has adopted the common law, that under the...
To continue reading
Request your trial