Babb v. Ellis

• Decision Date: 31 October 1882
• Parties: BABB v. ELLIS et al., Appellants.
• Court: Missouri Supreme Court

76 Mo. 459

BABB

v.ELLIS et al., Appellants.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Boone Circuit Court.--HON. G. H. BURCK-HARTT, Judge.

AFFIRMED.

Virgil M. Harris and Glover & Shepley for appellants.

1. The moneys received by Pierce, as special commissioner, were never turned over to Pierce, administrator of Cochran, by any act of said commissioner. What he did with them is not fully shown. But there is positively no evidence that he ever made any inventory or report of these moneys, as being in his hands as administrator of Cochran, or ever charged himself therewith as such, in any settlement, or otherwise. If the moneys at any time passed out of his hands as special commissioner, and into his hands as administrator of Cochran, they must have passed by their own motion, and left no trace of the fact behind them. But the law holds that there must be evidence of the transfer. 1 Perry on Trusts, (2 Ed.) § 203. And the evidence must be plain and unequivocal. Newcomb v. Williams, 9 Metc. 525; Prior v. Talbot, 10 Cush. 1; Hall v. Cushing, 9 Pick. 395; Hubbard v. Lloyd, 6 Cush. 522; Eliott v. Sparrell, 114 Mass. 404; Ruffin v. Harrison, 81 N. C. 208; Miller v. Congdon, 14 Gray 114; Perkins v. Moore, 16 Ala. 9; Burton v. Tunnell, 4 Harr. 424.

2. It was not Pierce's duty as special commissioner, nor had he as such power to turn over any land moneys to the administrator of Cochran till after he had settled with the widow. The title to these moneys was vested in the circuit court for the purposes of the partition suit, and it was not in the power of Pierce as special commissioner to oust the jurisdiction of the court over them. If the special commissioner had turned them over to the administrator prior to the final judgment in the circuit court, his act would not have lifted the moneys out of the circuit court, nor transferred them to the probate court, nor vested any title to them in the administrator. Such an act would have been in contempt of the jurisdiction of the circuit court, and Pierce could have been compelled to pay the moneys again into the circuit court. The order of August 28th to turn over was not final. The change made November 26th, and Mrs. Cochran's appeal from the order as modified re-opened the litigation. The effect of the appeal was to retain the whole land moneys within the jurisdiction of the circuit court, for the purpose of ascertaining the amount due to Mrs. Cochran and the additional amount of cost to be incurred in the renewed litigation. In this condition of the cause, one of two things is true: Either these moneys were held by the jurisdiction of the circuit court, or they were not. If they were held by the jurisdiction of the circuit court, all of them were so held, and not a dollar could pass into the jurisdiction of the probate court until after the jurisdiction of the circuit court was exhausted. If the special commissioner, Pierce, could turn them over to the probate court, pending the continuance of the litigation in the circuit court, then he could oust the jurisdiction of the circuit court and make nugatory any future order to be entered by the Supreme Court or circuit court. State v. Hearst, 12 Mo. 365; Hall v. Cushing, 9 Pick. 395; Conkey v. Dickinson, 13 Met. 51; Karr v. Karr, 6 Dana 3; Jennings v. Davis, 5 Dana 127.

3. If it was shown that pending the litigation in the circuit court Pierce turned over these moneys to Cochran's administrator, no title would have vested in the administrator. Shields v. Smith, 8 Bush 602; Peck v. Mead, 2 Wend. 470; Cooper v. White, 19 Ga. 554; Trecothick v. Austin, 4 Mason 29; St. Louis v. Sickles, 52 Mo. 122.

4. The attempt of the respondent to show that the Cochran land moneys were turned over by special commissioner Pierce to Cochran's administrator, is repelled by the continued exercise of jurisdiction by the circuit court.

5. This suit cannot be maintained. It is founded on section 67, page 487, General Statutes 1865; but that section is only applicable to partnership estates. Plaintiffs should have prosecuted under section 47, page 484, General Statutes.

Macfarlane & Trimble for respondent.

Pierce was commissioner, appointed such in the partition suit and as such was under the control of the court and subject to its orders. He was also, as administrator, a party to the suit, and, of course, subject to its orders. As commissioner, he had failed to qualify by giving bond. As administrator, he was fully qualified, and was under bond. The estate was indebted to such an extent as to require a sale of the land. The administrator then was entitled to the proceeds of the sale of the land. The court ordered Pierce, as commissioner, to pay the proceeds to Pierce, as administrator. Without other act on the part of Pierce, the law presumes that he transferred the funds as ordered. Herman on Executions, § 270. In fact no affirmative act was necessary in order to accomplish the transfer. A person acting in a dual capacity will be presumed to hold the funds in his hands in whatever capacity he should in law hold them, he being properly qualified. State v. Purdy, 67 Mo. 94; Golder v. Littlejohn, 30 Wis. 352. In the case at bar, Pierce, as commissioner, had given no bond and never did. He then had no right to the custody of the funds. It was competent for the court and its duty, either to require a bond or take the funds out of his hands. It did the latter by requiring him to hold them as administrator. But there is no necessity of invoking a presumption in this case. There is no doubt but that a transfer may be shown by the acts of the administrator in reference thereto. 1 Perry on Trusts, § 263. Such acts are abundantly shown in this case.

It is insisted that the widow, having appealed from the judgment of the court in reference to her dower, that fact would operate as a stay on the commissioner and not permit his compliance with the order of court; we say it would not even operate as an excuse to the commissioner. The administrator could hold the funds and distribute them under the order of the court as well as the commissioner; he is as much under the control of the court as the commissioner. The administrator came into court for the sole purpose of getting possession of the funds arising from the sale of the land; the order was made at his request transferring them to him, and an appeal by the widow cannot relieve him from his obligation, nor could it relieve the administrator from his duty to obey the order; besides, he was not qualified to hold it as commissioner. The interest of the widow was small compared with that of the estate, and it could not be reasonably expected that the whole funds should lie in abeyance, awaiting the result of a decision which would affect only a small part.

S. Turner, Jr., and S. C. Douglass also for respondent.

1. This proceeding was properly had under section 68, page 81, Wagner's Statutes.

2. It devolved on Pierce, as administrator, knowing, as he did, that there was a deficit of personalty, to see that the real estate belonging to the estate of Wm. Cochran was subjected to the payment of the unpaid allowances against his estate; and especially was it incumbent on him so to do, since he procured himself to be made a party to the partition suit for that avowed purpose. Gamble v. Gibson, 59 Mo. 594; State v. Scholl, 47 Mo. 84; Perry on Trusts,

(2 Ed.) § 263; Williams on Executors, s. p. 1547, 1536; 3 Redfield on Wills, (2 Ed.) § 119, p. 558; Dix v. Morris, 66 Mo. 518.

3. Administrator Pierce having been made a party to, and appointed special commissioner in, the partition suit, and thus acting in a double fiduciary capacity, it devolved upon him and he was bound to collect the moneys coming to the estate of his intestate. If he failed so to do, he was in a worse position than if another had been the commissioner, for having the money in his hands as commissioner, it was imperatively his duty to see that the estate got the benefit of it. The lying by and permitting the estate to be wasted, if in the hands of another, without preserving the interest of creditors, would of itself have made him liable on his bond. With much greater force is he liable, when he has the money in his hands and then fails to credit his estate therewith. He virtually had the money, as administrator, in his hands under the circuit court's order as it was paid. The Final Settlement of Wood, 71 Mo. 626; Hellman v. Wellenkamp, 71 Mo. 409.

4. The effect of the order of 28th August, in the partition suit was to transfer the proceeds of the land sale, eo instanti to Pierce as administrator. The filing of the motion by Mrs. Cochran to set aside the same pro tanto, and to grant her a new trial in so far as the order affected her rights of homestead and dower, did not defeat or suspend the operation of said order. Neither did the appeal operate to change the status of the fund from that of assets belonging to the administrator and relegate it to Pierce as commissioner. Freeman on Judg., (2 Ed.) § 328.

HENRY, J.

This was a proceeding in the probate court of Boone county by the administrator of Cochran, against the administrator of Pierce and his securities on his bond as administrator of said estate of Cochran, under section 68, page 487, General Statutes of 1865, to recover a large sum of money which his successor, as administrator of Cochran's estate, alleged that Pierce, (his predecessor in said administration,) had wasted. A judgment was rendered against defendants, from which they appealed to the circuit court, where plaintiff was again successful, and they have appealed to this court.

1. ADMINISTRATION: remedy against sureties of deceased administrator.

The first question to be disposed of relates to the jurisdiction of the probate court. Section 67 and 68 of the Revision of 1865, are found immediately succeeding sections which relate exclusively to partnership estates. Sections 52 to 66, inclusive, by their express terms apply...