In re Pound's Estate

• Decision Date: 17 December 1901
• Citation: 166 Mo. 419,66 S.W. 273
• Court: Missouri Supreme Court
• Parties: In re POUND'S ESTATE. POUND et al. v. CASSITY.<SMALL><SUP>1</SUP></SMALL>

66 S.W. 273

166 Mo. 419

In re POUND'S ESTATE.

POUND et al. v. CASSITY.¹

Supreme Court of Missouri, Division No. 1.

December 17, 1901.

EXECUTORS — PARTIAL DISTRIBUTION — REFUNDING BONDS.

1. Rev. St. 1899, § 239, provides that no executor shall be compelled to make distribution within two years from the date of the letters, unless bond be given by the legatees or distributees to refund to pay any debts against the estate; and section 240 enacts that if, on any settlement, it appear that there is sufficient money to satisfy all the demands against the estate, the court shall order the payment of legacies and distribution of shares. Held, that

section 240 is to be construed in connection with section 239, and a refunding bond must be given where distribution is made within two years after the date of the letters.

2. Where an executor, within two years after the date of his letters, without any order of the court, and without requiring any refunding bond, distributed sums to the legatees, and subsequently the court, under Rev. St. 1899, § 240, made an order for distribution, — it appearing that the debts were paid, — the executor could not refuse to comply with the order of distribution because no refunding bond had been given by the legatees.

Appeal from circuit court, Linn county; Jno. P. Butler, Judge.

Motion by James S. Pound and others, as assignees of the right of the widow of Presley Pound, deceased, to a child's share in the personal estate, for a partial distribution by Armstrong Cassity, as executor of the decedent. From a judgment of the circuit court affirming a judgment of the probate court granting the motion, defendant appeals. Affirmed.

This is a motion by the assignees of the right of the widow of Presley Pound to a child's share in the personal estate for an order of partial distribution. The probate court ordered the distribution. The executor appealed to the circuit court, where a like order was entered, and the executor appealed to this court.

The facts are these: On December 6, 1897, the will of Presley Pound, deceased, was admitted to probate. On the 22d of December, 1897, the widow renounced the will, and elected to take dower in the real estate, and a child's share in the personal property. The court allowed and the executor paid the widow $400 as her absolute property, as provided by section 106, Rev. St. 1899. On the 26th of April, 1898, the widow conveyed and assigned her dower in the real estate and her share in the personal property to James S. and John M. Pound. On the 14th of February, 1899, the executor filed his first annual settlement, which showed that the assets collected amounted to $32,986, and that the disbursements amounted to $23,154.03, leaving a balance in his hands of $9,831.97. The deceased left six children by a former marriage, to wit, Sarah Hawkins, P. B. Pound, J. S. Pound, J. M. Pound, Josephine Cassity, the wife of the executor, and Martha Mathews, and the widow of the second marriage, Mary M. Pound. The $23,154.03 disbursements included the following sums paid by the executor to the children and widow: To Sarah Hawkins, the sum of $4,153.93; to P. B. Pound, the sum of $4,153.93; to J. S. Pound, the sum of $4,153.93; to Josephine Cassity, the sum of $4,203.18; to J. M. Pound, the sum of $2,228.50; to Mary M. Pound, widow, the sum of $400; and to Martha Mathews, nothing; making the total distribution to the widow and legatees, $19,293.47. The probate court found that a portion of the $9,831.97, balance on hand, could be distributed without prejudice to any one, as contemplated by section 239, Rev. St. 1889, and accordingly ordered the executor to retain $966, and to distribute the $8,835.97 of the $9,831.97 balance on hand as follows: "To J. M. Pound and J. S. Pound, assignees of Mary M. Pound, widow, the sum of $3,618.49; to Martha Mathews, legatee, the specific legacy of twenty-five dollars ($25); to Sarah Hawkins, legatee, the sum of $663.26; to P. B. Pound, legatee, the sum of $663.26; to J. S. Pound, legatee, the sum of $663.26; to Josephine Cassity, legatee, the sum of $614.01; to J. M. Pound, legatee, the sum of $2,588.69. It is further ordered that the executor deliver to Martha Mathews all the notes and evidences of debt, of every kind, due by her to said estate, now in his possession." When the case was tried in the circuit court the evidence developed the fact that the executor had paid the children the amounts specified in the settlement as a part of their legacies before the expiration of two years from the date of his letters, and did not require a refunding bond from them, but that he had paid the widow nothing, except the $400, because he did not think she was entitled to anything, and that he had never demanded a refunding bond from her. It also appeared that all the known debts of the estate had been paid, and that there were no more expenses to be incurred, except the cost of administration, and that the executor was receiving the rent of the real estate in addition to the $966 he was ordered to retain. The circuit court rendered judgment similar to that rendered by the probate court, and the executor appealed.

C. C. Bigger, H. Lander, and E. R. Stephens, for appellant. A. W. Mullins, for respondents.

MARSHALL, J. (after stating the facts).

The defendant contends that the order of partial distribution is premature, and that under section 238, Rev. St. 1889 (section 239, Rev. St. 1899), he could not be compelled to make distribution within two years after the date of his letters unless a refunding bond is given to him by the distributees. Section 238, Rev. St. 1899, provides that executors cannot be compelled to pay legacies until one year after the date of the letters, unless the legacies would be perishable or subject to injury if retained one year. Section 239 provides that no executor shall be compelled to pay legacies or make distribution within two years from the date of the letters, unless bond and security be given by the legatee or distributee to refund his due proportion of any debt which may afterwards be established against the estate, and the costs attending the recovery thereof. Section 240 provides that, "if upon any settlement it appear that there is sufficient money to satisfy all the demands against the estate, the court shall order the payment of legacies and distribution of shares, as in the case of debts, except that the...