Bauer v. Gray

• Decision Date: 02 June 1885
• Citation: 18 Mo.App. 164
• Parties: J. A. BAUER ET AL., Appellants, v. M. L. GRAY, Administrator, Respondent.
• Court: Missouri Court of Appeals

18 Mo.App. 164

J. A. BAUER ET AL., Appellants,

v.M. L. GRAY, Administrator, Respondent.

St. Louis Court of Appeals, Missouri.

Jun. 2, 1885.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Affirmed.

A. J. P. GARESCHE, for the appellants: Jurisdiction of probate court. Pearce v. Calhoun, 59 Mo. 274; May's Heirs v. May's Adr., 28 Ala. 151, sec. 4; Hawley v. Botsford, 27 Conn. 83; Crs. McCullough, suc'n, 20 La. Ann. 175; Monroe v. Holmes, 13 Allen Mass. 112; Suzenberge v. Gourley,56 Pa. S. R. 171; Wheeler v. Goffe, 26 Texas 660; Brought v. Griffith, 16 Iowa 35. As to jurisdiction of equity no need to cite other than the authorities collated in support of plaintiff's right to recover, and 1st Bap. Ch. v. Robertson, 71 Mo. 334. Concurrent jurisdiction of circuit and probate court: Brought v. Griffith, 16 Iowa 26; High's Adr. v. Worley, 32 Ala. 709. Plaintiff's right to recover. Fay v. Taylor, 2 Gray Mass. 160; Garr v. Martin, 20 N. Y. 311; Wilson v. Doster, 7 Ired. Eq. R. 233; Monroe v. Holmes, 13 Allen Mass. 110; Dunbar v. Tainter, 7 Cushing Mass. R. 574; Smith v. Smith, 5 Ired. Eq. R. 34; Allen v. Smitherman, 6 Ib. Eq. R. 341.

M. L. GRAY, for the respondent: The remedy is not on the bond, but on the implied promise to refund. Blake v. Downy, 51 Mo. 437; Halliburton v. Carter, 55 Mo. 435. All creditors must present and have allowed their claims against the estates of deceased debtors, within the prescribed time after the debt accrues. Hearne v. Keith, 63 Mo. 89; Burckhartt v. Helfrich, 77 Mo. 376; Burton v. Rutherford, 49 Mo. 257; Greenabaum v. Elliott, 60 Mo. 32. The statute of limitations applies to actions in equity. Rogers v. Brown, 61 Mo. 187. The probate court had exclusive jurisdiction to ascertain how much McGilway failed to account for, and the circuit court had no jurisdiction to determine how much McGilway owed, or had failed to account for. Pearce v. Calhoun, 59 Mo. 271; Ensworth v. Curd, 68 Mo. 282.

THOMPSON, J., delivered the opinion of the court.

This controversy arises in this way: The defendant, M. L. Gray, administrator of the estate of Constantine McGilway, deceased, made his final settlement in the probate court, showing a balance of $1,597.77 in his hands for distribution. The probate court ordered this balance to be distributed to the widow and children of the deceased. Thereupon these plaintiffs, Joseph A. Bauer and John Mullery, filed a motion to have the order of distribution set aside, and for an order upon the defendant to repay to them an amount which had been paid by them in satisfaction of a certain judgment against them as sureties of the decedent upon his bond, given as surviving partner administering upon the assets of the late firm of Clement & McGilway. The probate court overruled this motion; Bauer and Mullery appealed to the circuit court; upon a hearing de novo in that court without a jury, judgment was rendered for the defendant, and the plaintiffs, Bauer and Mullery, have appealed to this court.

The facts of the controversy set out in their full detail would make a long story, and down to a certain point, they are told in the opinion of this court delivered by Judge Bakewell in the case of Gray, Administrator, v. Clement, Executor, 12 Mo. App. 579. The substance of it is this: Clement and McGilway were partners in St. Louis. Clement died in October, 1875, and McGilway administered upon the partnership effects, giving bond as such administrator, with Bauer and Mullery, the plaintiffs in the present action, as sureties. McGilway died in July, 1876, and Gray, the present defendant, succeeded him as administrator of his estate. In January, 1877, Mary H. Clement, widow of the deceased Clement, gave bond as administratix de bonis nonof the partnership estate of Clement & McGilway, thus becoming the successor in the trust of the deceased McGilway. She instituted a proceeding under Revised Statutes, section 50, against Gray as administrator, and against Bauer and Mullery as sureties of McGilway, her predecessor in the trust, and recovered a judgment against them in the sum of $3,751.68. The sureties immediately brought an action in equity in the circuit court, jointly with Gray as administrator of McGilway, alleging that McGilway's estate was insolvent, seeking to restrain the collection of the judgment of the probate court, and to have the interest of the estate of McGilway in the partnership estate ascertained and applied in reduction of the judgment, offering to pay any deficiency which should be ascertained after the judgment should be thus reduced, and praying that the collection of the residue of the judgment be enjoined. The case was sent to a referee, upon whose report, the parties consenting thereto, the court found that the indebtedness of McGilway's estate was greater than the judgment which the probate court had rendered, by the sum of $736.32, that is to say, that it was $4,435; and that McGilway's interest in the partnership estate was $3,221.91, which, deducted from the former sum, leaves the sum of $1,213.41; and the court thereupon rendered a decree that, upon the payment of this last sum by Bauer and Mullery to Mrs. Clement, each paying one-half thereof and taking a receipt therefor, the collection of the judgment of the probate court be enjoined.

Subsequently Mrs. Clement made her final settlement in the probate court as administratrix de bonis non of the partnership estate, in which she claimed that the estate of McGilway was indebted to the partnership estate in the sum of $211.61. Gray, as administrator of McGilway's estate, filed exceptions to this final settlement, claiming that sundry credits in favor of the administratrix should be stricken out. From the order made by the probate court upon such exceptions, an appeal was taken to the circuit court, in which court a judgment was rendered in favor of Gray, as administrator of McGilway's estate, in the sum of $1,133.07. An appeal was taken by Mrs. Clement to this court, and this court affirmed the judgment of the circuit court. Gray v. Clement, 12 Mo. App. 579. On the 13th of June, 1882, the judgment of the circuit court, thus affirmed, with interest, amounting in all to $1,201.67, was paid and was charged to himself by Gray, in his settlement in the probate court, as a part of the assets of McGilway's estate. The judgment of the circuit court, thus affirmed and satisfied, was made up of the following elements: There was found to be in the hands of Mrs. Clement, as assets of the partnership estate $1,835.59, of which $702.90 was ordered to be paid to the estate of Clement, deceased, and the sum of $1,133.07 paid to the estate of McGilway, deceased. The bill of exceptions recites: “That this balance in favor of said McGilway would not have existed in favor of McGilway's estate, but Gray, as administrator thereof, in the said final settlement of the co-partnership of Clement and McGilway, took credit for and was allowed the sum of $1,213.43, together with interest, for sums so paid by plaintiffs in satisfaction of said judgment of $3,751.68.” This recital is equivalent to a statement that Gray got back from the administratrix of the partnership estate of Clement and McGilway the sum of $1,213.43 with interest thereon, which Bauer and Mullery had paid to that estate as sureties on the bond of McGilway as administrator thereof. And having got it back, the question here in controversy is to whom it belongs; whether it belongs to Bauer and Mullery, by whom it was paid to the partnership estate, or whether it belongs to the widow and children of McGilway, and whether they can be allowed to reap the benefit of McGilway's wrong, by taking money which was paid by his sureties to make good that wrong. If the probate court had had power to deal with it as an ordinary question of equity, there is not a particle of doubt as to what the decision of the learned and upright judge of that court would have been. No chancellor would stop at pronouncing such a result inequitable; he would call it iniquitous. But the probate court is not a court of general chancery powers.

In the distribution of estates it exercises a jurisdiction which is carefully defined at every point by statute. The statute is the grant to those courts of their powers, and it is of the highest importance that in exercising those powers they should keep within the limits marked out by the statute. The reason is that many of the judges of our courts of probate are men unlearned in the law, and if they were at liberty to step beyond the limits of the statute and exercise the supposed powers of chancellors, they would substitute an irregular and untrained discretion for a system of law, which, properly administered and carefully attended to by all parties in interest, is in nearly all cases adequate for the administration and settlement of the estates of deceased persons in such a manner as to effect practical justice.

In order to solve the controversy before us, it is scarcely necessary to do more than consider the status of the opposing parties in respect of the fund in controversy. In what character did Gray receive this fund from the partnership estate of Clement and McGilway? It is not suggested that he received it in the character of agent or trustee for Bauer and Mullery, or in any other character than that of administrator of the estate of McGilway. It was in that character that he...