Brooks v. Mastin

• Decision Date: 31 October 1878
• Parties: BROOKS, Plaintiff in Error, v. MASTIN.
• Court: Missouri Supreme Court

69 Mo. 58

BROOKS, Plaintiff in Error,

v.MASTIN.

Supreme Court of Missouri.

October Term, 1878.

Error to Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

This was a suit by Brooks, the public administrator of Cass county, in charge of the estate of James R. Cline, deceased. The petition was in two counts. The first stated, in substance, that the defendants, on the 18th day of June, 1872, executed and delivered a promissory note in favor of James Blair, Jr., and Nettie Cline, as administrators of the estate of said James R. Cline, and payable to their order for the sum of $4,574.75; that the said Blair and Nettie Cline were then administrator and administratrix of the estate of the said decedent, and so continued until the 22nd day of February, 1873, when their letters of administration were revoked, of which fact defendants at the time had notice; that on the 13th day of May, 1873, plaintiff, in obedience to an order of the common pleas court of Cass county, took charge of said estate, and had ever since had charge of it; that said note was so executed and delivered to said Blair and Cline in their representative capacity, for and on account of a debt owing by defendants to the decedent in his life-time, and that the sum of money specified in it and the interest thereon from its maturity, remained due to plaintiff as such administrator, and judgment was prayed accordingly. The note was not filed with the petition, because, as was alleged, it had been lost, mislaid or destroyed, and was not in the possession or power of plaintiff.

The second count stated in substance, that on the 18th day of June, 1872, defendants were indebted to said Blair and Nettie Cline, as such administrators, on several certificates of deposit by them made and delivered to said James R. Cline in his life-time in the sum of $17,889.60, for certain Cass county bonds sold and delivered by said Cline to defendants; that on or about that date said certificates of deposit were surrendered by said administrators to defendants, who paid on that account $12,000, and left the balance unpaid; that on the 22nd day of February, 1873, the letters of said Blair and Nettie Cline were revoked, and on the 13th day of May, 1873, plaintiff, as public administrator, in obedience to an order of the common pleas court, took charge of the estate of the said decedent, and was then the sole administrator thereof, and that said balance with interest, remained due plaintiff as such administrator, and judgment was prayed accordingly.

R. O. Boggess with D. K. Hall for plaintiff in error.

1. The taking of a note and giving a receipt in full will not extinguish the original indebtedness without a specific agreement to that effect. Steamboat Charlotte v. Hammond, 9 Mo. 59, 63; McMurray v. Taylor, 30 Mo. 263; Johnson v. Scott, 34 Mo. 129; Powell v. Charless' Admr., Ib. 485; Howard v. Jones, 33 Mo. 583. So that the taking of the certificate of deposit from defendants by the intestate, did not extinguish the original indebtedness. Would the surrender of those certificates by the administrators, without payment, have that effect? Payment of less than the whole amount due, even if agreed to be paid and accepted in full payment, would not extinguish the debt. 2 Parsons on Contracts, (3d Ed.) top page 130; Price v. Cannon, 3 Mo. 453; Markel v. Spitler, 28 Ind. 488; 2 Chitty on Contracts, (11 Ed.) 1101; Willis v. Gammill, 67 Mo. 730. The sum of money sued for in the second count was due decedent in his life-time; he took certificates of deposit therefor; his administrators surrendered said certificates without full payment; defendants promised to pay the remainder. This was assets of the decedent's estate, and vested in the public administrator on his taking charge of the estate, which he, and he only, had a right to sue for and recover. Lessing v. Vertrees, 32 Mo. 431; Naylor v. Moffatt, 29 Mo. 126; Cheely's Admr. v. Wells, 33 Mo. 106; Smith v. Denny, 37 Mo. 20.

2. The sum of money specified in the first count of the petition, was due decedent in his life-time, his administrator and administratrix, James Blair and Nettie Cline, took a note therefor, payable to themselves in their representative capacity. Did this act of theirs have the effect to vest the title thereto in them personally? On their appointment to administer the estate of decedent, said debt vested in them by operation of law in their representative capacity in trust for creditors and others entitled thereto. Could this change the assets, divest them of their trust character, and place them beyond the reach and control of a succeeding administrator? The position is not without appearance of authority of this court for its support. Lacompte v. Seargent, 7 Mo. 35; Thomas v. Relfe, 9 Mo. 373; Harney, Admr. v. Dutcher, 15 Mo. 90; Cook's Executor v. Holmes, 29 Mo. 61; Block, Admr. v. Dorman, 51 Mo. 31. The cases of Lacompte v. Seargent and Thomas v. Relfe, supra, have been expressly overruled by Lessing v. Vertrees, 32 Mo. 431, which is also inconsistent in principle with Harney, Admr. v. Dutcher. In that case the contract sued on had been taken by and made payable to Harney's administrator for the services of a slave by him hired out after the death of the intestate. The case may possibly be sustained on that ground, but it is believed to be wrong in principle, misleading in effect, and it ought to be reversed, distinguished or overruled. Cook's Executor v. Holmes and Block, Admr. v. Dorman, are also to be distinguished in principle from the case at bar. In those cases notes had been made payable to persons described as administrators of certain estates. The payees had died and their administrators sued on the notes thus made; the defendant objected that plaintiffs were not the proper parties, which objections were overruled, and plaintiffs recovered. Here the plaintiff seeks to recover on a note executed to his predecessors for a debt admitted to have been due the intestate, and the defendant objects that he is not the proper party to sue. If the debt vested by operation of law in the personal representative as trustee in the trust for the benefit of creditors and others entitled to the estate, why will it not vest in the succeeding administrators? The several succeeding admin istrators are nothing more or less than successive trustees of the same trust fund for the same beneficiaries. Will the changing of the evidence of the debt change the ownership of the asset? The State to use of Blanton's Admr. v. Hunter et al., 15 Mo. 490. It is a well established rule of law that trust funds or property may be traced through any number or kinds of imitation or changes without losing their trust character. So long as the product of the trust fund can be traced and identified, so long will it be held subject to the original trust. Perry on Trusts, (Ed. 1872) §§ 127, 128, and note B on p. 101. The taking of said note no more made it the property of James Blair and Nettie Cline than taking the same amount of money in their hands, belonging to the estate of the decedent, and buying real estate, stocks or bonds would have made the things so purchased their property as against the succeeding administrator. The things so bought would have been assets to be administered, and so with said note.

3. If the foregoing propositions are correct, then the ruling of the court below is wrong in toto, and its decision must be reversed; but even if the plaintiff in error was not entitled to recover on said note, he was, nevertheless, entitled to recover on the second count of his petition, and so the judgment of the court below must, in any event, be reversed.

F. M. Black for defendant in error.

The only question necessarily involved is the right of plaintiff to sue. But there is a collateral question as to the certificates of deposit, whether even if he has such right, the surrender can be invalidated. And first as to the right to sue: When the property in any of the effects of the...