Booker v. Armstrong
| Decision Date | 20 June 1887 |
| Court | Missouri Supreme Court |
| Parties | BOOKER, Adm'r, etc., v. ARMSTRONG, Adm'r d. b. n., etc. |
Among the assets which came to the hands of B., sole executor of G., was a note secured by deed of trust. B. qualified in 1867, and at that date, and for 5 years thereafter, the land conveyed by the deed of trust was worth the full amount of the note, but it then depreciated 50 per cent. B. paid taxes on the land for several years, but took no steps to foreclose, and suffered the bar of the statute of limitations to fall as to the note. The maker of the note was insolvent at the time B. filed his inventory, and continued so. During the whole period the land was not in the actual occupancy of any one. Held, in an accounting between the administrator of B. and the administrator de bonis non, etc., of G., under Rev. St. Mo. 1879, § 48, providing, in effect, that, upon the death of a sole executor, unadministered assets pass to his successor, and not to his personal representatives, (1) that B. was negligent in failing to foreclose, and that his estate should account to the estate of G. for the loss that it had sustained by reason of the depreciation of the land; (2) that he should not be allowed credit for the taxes paid on the land, because, if he had done his duty, and foreclosed the mortgage, it would not have been necessary to pay the taxes; and (3) that his estate could not be held accountable for the whole of the note by reason of the fact that his delay had not, under the law of Missouri, barred the right to sell under the deed of trust.
2. SAME — COMPENSATION.
An executor who has been allowed the regular commissions, and a fair compensation for leasing property of the estate and similar work, is not entitled to a per diem for general services.
3. SAME — ACCOUNTING — WILL CONTEST — COSTS.
Where there is a contest over the will, the executor should not be charged interest on monies retained by him to meet the expenses of the contest, when the amount so retained is reasonable and proper.
4. SAME — ACCOUNTING — ADVANCEMENTS BY EXECUTOR.
When, by excluding from the executor's credits other unwarranted credits, it appears that there was no necessity for the executor's advancing money to the estate, he will not be allowed interest on the amount so advanced.
Appeal from circuit court, Marion county.
W. P. Harrison and W. M. Boulware, for Booker, appellant. G. P. Strong and Edw. McCabe, for Armstrong, respondent.
Jacob E. Grove died testate in 1867, and William Booker qualified as executor in October of that year, and continued to act as the executor of the Grove will until his death, in 1878, a period of 10 years and some months. During all this time there was a suit pending in the courts in which the validity of the will was contested. Samuel F. Booker took out letters of administration on the estate of William Booker, in April, 1878, and at the same time R. Lakenan was appointed administrator of the Grove estate pending the will contest. On the fifteenth of July, 1879, Samuel F. Booker, as administrator of William Booker, filed in the probate court of Marion county a settlement of the Grove estate. From the judgment of the probate court an appeal was prosecuted to the circuit court, where, upon a trial anew, there was a judgment in favor of the Grove estate for $7,732.10, and Booker appealed to this court. While this suit was pending in the circuit court, Lakenan died, and the defendant Armstrong was appointed in his place. The settlement filed in the probate court by Samuel F. Booker, as administrator of William Booker, is a copy of the eleventh annual settlement made by the late executor. Attached to this is a recapitulation.
The annual settlements are accounts current of money received and paid out, and they show the total receipts to have been $41,514.24. The disbursements amount to the aggregate sum of $52,640.60 leaving a balance of $11,126.36 due to the executor. The recapitulation, on the one hand, charges the executor with all the notes and accounts included in the inventory, and on the other hand credits the executor with worthless notes, and other evidences of indebtedness, turned over to Lakenan. Among the notes thus turned over is one known as the Pogue note. The debits of this exhibit amount to $66,313.47, and the credits to $77,439.83; thus again showing a balance due executor of $11,126.36.
1. The executor in his second annual settlement took a credit for services from October, 1867, to October, 1868, $900. A like credit, differing in amount, is found in each subsequent settlement, — in all, $8,699. These items are brought into the final settlement. These charges are generally made as for services, at three dollars per day. The executor is entitled to the commissions of 5 per cent. on disbursements allowed by statute, but there is no authority in law for the per diem charges. The bare statement of the claim condemns it. The executor received fair allowances for leasing property, and such like services, which are not controverted here; and it is, perhaps, enough to say that these credits for per diem services were not urged here in the oral argument, and they will be disallowed, as they were by the circuit court.
2. The item of $950, for which a credit is claimed as interest on moneys advanced for the estate, appears in the settlement of 1877. Excluding from the executor's credits the unwarranted credits before mentioned, it then appears there was no necessity for advancing money to the estate. It had enough of its own in the hands of the executor for all proper disbursement required to be made. It follows that this claimed credit must be excluded.
3. The next question arises over the Pogue note, and taxes paid on the Wardlaw land, for which a credit is claimed. The executor inventoried a note dated March 1, 1865, made by George B. Pogue, for $4,113, due in one year, with 10 per cent. interest, and payable to Mr. Grove, the deceased. A credit placed on the note on August 9, 1867, shows that the interest had been paid to April 20, 1867. The note was secured by a deed of trust of even date, made by Pogue and wife and H. H. Wardlaw and wife, upon 50 acres of land known as "Wardlaw's addition to the city of Hannibal." This deed of trust was recorded in December, 1867. From 1867 to 1872 this land is shown to have been worth from 100 to 125 dollars per acre, but after that it was of no greater value than 40 or 50 dollars per acre. At the date of the inventory Pogue was, and ever since has been, insolvent. Neither Wardlaw nor his heirs have ever made any claim to the land. In 1871 the late executor took some steps to prevent persons from trespassing upon it, but the land was not in the actual occupancy of any one. From and after November, 1875, but not before, the executor paid taxes on the land, in all amounting to $2,415.63. He never foreclosed, or made any effort to foreclose, the deed of trust. On August 1, 1878, which was before this...
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