Booker v. Armstrong

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBlack
Citation93 Mo. 49,4 S.W. 727
PartiesBOOKER, Adm'r, etc., v. ARMSTRONG, Adm'r d. b. n., etc.
Decision Date20 June 1887
4 S.W. 727
93 Mo. 49
BOOKER, Adm'r, etc.,
v.
ARMSTRONG, Adm'r d. b. n., etc.
Supreme Court of Missouri.
June 20, 1887.

1. EXECUTOR — NEGLIGENCE IN CARE OF ESTATE.

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

[4 S.W. 728]

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.

BLACK, J.


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

4 S.W. 729

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...

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20 practice notes
  • In re Estate of Thomasson, No. 36823.
    • United States
    • United States State Supreme Court of Missouri
    • April 5, 1943
    ...149 Mo. App. 301, 305, 129 S.W. 983. 2. Estate of Glover & Shepley, 127 Mo. 153, 157(1), 29 S.W. 982, 983; Booker v. Armstrong, 93 Mo. 49, 60, 4 S.W. 727, 3. 21 Am. Jur., secs. 779, 780, p. 816; 24 C.J., sec. 2743, p. 1149; sec. 2750, p. 1156; sec. 2777, p. 1166; 34 C.J.S., sec. 1025, p......
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • April 10, 1912
    ...v. Beall, 12 N. D. 122, 95 N. W. 518;Alexander v. Ransom, 16 S. D. 308, 92 N. W. 418;Richmond v. Aiken, 25 Vt. 324;Booker v. Armstrong, 93 Mo. 49, 4 S. W. 727;Long v. Long, 141 Mo. 352, 44 S. W. 341;Bank v. Simeral, 61 Neb. 741, 86 N. W. 470;Kerr v. Lydecker, 51 Ohio St. 240, 37 N. E. 267, ......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1912
    ...(95 N.W. 518); Alexander v. Ransom, [155 Iowa 222] 16 S.D. 302 at 308 (92 N.W. 418); Richmond v. Aiken, 25 Vt. 324; Booker v. Armstrong, 93 Mo. 49 (4 S.W. 727); Long v. Long, 141 Mo. 352 (44 S.W. 341); Bank v. Simeral, 61 Neb. 741 (86 N.W. 470); Kerr v. Lydecker, 51 Ohio St. 240 (37 N.E. 26......
  • Howard v. Strode
    • United States
    • United States State Supreme Court of Missouri
    • March 21, 1912
    ...Bryant v. McCune, 49 Mo. 546; Cummings v. Cummings, 51 Mo. 263; Drowry v. Bauer, 68 Mo. 155; In re Davis, 62 Mo. 450; Booker v. Armstrong, 93 Mo. 49, 4 S. W. 727; Meyers v. Meyers, 98 Mo. 262, 11 S. W. 617; Hitchcock v. Mosher, 106 Mo. 578, 17 S. W. 638; Glover v. Holliday, 109 Mo. 108, 18 ......
  • Request a trial to view additional results
20 cases
  • In re Estate of Thomasson, No. 36823.
    • United States
    • United States State Supreme Court of Missouri
    • April 5, 1943
    ...149 Mo. App. 301, 305, 129 S.W. 983. 2. Estate of Glover & Shepley, 127 Mo. 153, 157(1), 29 S.W. 982, 983; Booker v. Armstrong, 93 Mo. 49, 60, 4 S.W. 727, 3. 21 Am. Jur., secs. 779, 780, p. 816; 24 C.J., sec. 2743, p. 1149; sec. 2750, p. 1156; sec. 2777, p. 1166; 34 C.J.S., sec. 1025, p......
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • April 10, 1912
    ...v. Beall, 12 N. D. 122, 95 N. W. 518;Alexander v. Ransom, 16 S. D. 308, 92 N. W. 418;Richmond v. Aiken, 25 Vt. 324;Booker v. Armstrong, 93 Mo. 49, 4 S. W. 727;Long v. Long, 141 Mo. 352, 44 S. W. 341;Bank v. Simeral, 61 Neb. 741, 86 N. W. 470;Kerr v. Lydecker, 51 Ohio St. 240, 37 N. E. 267, ......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1912
    ...(95 N.W. 518); Alexander v. Ransom, [155 Iowa 222] 16 S.D. 302 at 308 (92 N.W. 418); Richmond v. Aiken, 25 Vt. 324; Booker v. Armstrong, 93 Mo. 49 (4 S.W. 727); Long v. Long, 141 Mo. 352 (44 S.W. 341); Bank v. Simeral, 61 Neb. 741 (86 N.W. 470); Kerr v. Lydecker, 51 Ohio St. 240 (37 N.E. 26......
  • Howard v. Strode
    • United States
    • United States State Supreme Court of Missouri
    • March 21, 1912
    ...Bryant v. McCune, 49 Mo. 546; Cummings v. Cummings, 51 Mo. 263; Drowry v. Bauer, 68 Mo. 155; In re Davis, 62 Mo. 450; Booker v. Armstrong, 93 Mo. 49, 4 S. W. 727; Meyers v. Meyers, 98 Mo. 262, 11 S. W. 617; Hitchcock v. Mosher, 106 Mo. 578, 17 S. W. 638; Glover v. Holliday, 109 Mo. 108, 18 ......
  • Request a trial to view additional results

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