Byers v. Weeks

• Court: Kansas Court of Appeals
• Writing for the Court: BROADDUS, J.
• Citation: Byers v. Weeks, 105 Mo. App. 72, 79 S.W. 485 (Kan. App. 1904)
• Decision Date: 01 February 1904
• Parties: O. G. BYERS et al., Appellants, v. C. E. WEEKS, Respondent

79 S.W. 485

105 Mo.App. 72

O. G. BYERS et al., Appellants, v. C. E. WEEKS, Respondent

Court of Appeals of Missouri, Kansas City

February 1, 1904

Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.

Reversed and remanded.

Shannon & Shannon, Thomas & Hackney for appellants.

(1) The facts stated in the petition exclude all the contingencies under which an administrator de bonis non may be appointed and, therefore such an administrator can not be appointed. R S. 1899, sec. 46; Graystone v. Weddell, 63 Mo. 539. (2) The petition affirmatively showing that the administrator of the individual estate never brought the partnership estate into his administration, it follows that no bond for that purpose was even given by him as required by law. Plaintiffs therefore had no legal redress by suit upon such bond. Rev Stat. 1899, sec. 61; Howell v. Jessup, 104 Mo. 453. (3) Heirs of deceased partners may sue the surviving partner in such cases as shown by the petition herein. 15 Enc. Pleading and Practice, p. 1072; Goebel v. Foster, 8 Mo.App. 443; Ravenscroft v. Pratt, 22 Kans. 20; Valentine v. Wyser, 123 Ind. 47; Rosenweig v. Thompson, 66 Md. 593; Blake v. Barnes. 63 Hun (N. Y.) 633; s. c., 18 N.Y.S. 471; Hyer v. Burdett, 1 Edw. Ch. (N. Y.) 325; Travis v. Milne, 9 Hare 141; Stainton v. Carron Co., 18 Beav. 157; Seeley v. Boehm, 2 Madd. 176; Newland v. Champion, 1 Ves. 105; Davies v. Davies, 2 Keen 534; Hutton v. Laws, 55 Iowa 710; Harrison v. Righter, 11 N.J.Eq. 389.

H. W. Curry, with whom is Howard Gray, for respondent.

(1) It is the established law of this State that on the death of the owner, personal property descends to his or her personal representative, and the title to real estate vests in the heir. The heir can receive his distributive share of the personalty of his ancestor only through the channels of administration. Adey v. Adey, 58 Mo.App. 408; McMillan v. Wacker, 57 Mo.App. 220; 1 Woerner, American Law of Administration (2 Ed.), star sec. 431, sec. 200, p. 460. (2) The partnership estate was a separate and distinct estate; it could not be administered with, or as part of the individual estate of J. H. Byers, and there has never been any impediments in the way of administering the same. Orrick v. Aahey, 49 Mo. 428; Matney v. Gregg Bros., 19 Mo.App. 107; State ex rel. Richardson v. Withrow, 141 Mo. 69. (3) On a showing that the estate of J. H. Byers has closed, and the administrator discharged, and, that there are unadministered assets the probate court would have jurisdiction to appoint an administrator de bonis non on the estate of J. H. Byers. Howell v. Jump, 140 Mo. 441; Scott v. Crew, 72 Mo. 261; Rogers v. Johnson, 125 Mo. 202; Francisco v. Wingfield, 161 Mo. 542.

OPINION

BROADDUS, J.

The petition is in equity by the heirs at law of J. H. Byers, deceased, against defendant alleging that said deceased and defendant were partners during the lifetime of the former engaged in the mercantile business; that on the death of Byers an administrator was appointed who duly administered his estate, made final settlement, was discharged from his trust as such, and the debts of the intestate were paid; that said administrator was prevented from taking charge of the partnership estate by the representations of defendant that the partnership had been dissolved previous to the death of said Byers after a complete and final settlement, and that he had paid him his full share of said partnership; that said representations were untrue and made to defraud said administrator and the plaintiffs; and that in fact there never had been an accounting, as stated, during the lifetime of said Byers, and no dissolution of the said partnership. Plaintiffs state that the accounts of said partnership are voluminous and complicated, and asks for a decree of accounting and settlement of the partnership. To the petition the defendant interposed a demurrer which the court sustained, and plaintiffs refusing to further plead, judgment was rendered against them and they appealed.

The question presented is, whether the heirs at law of the deceased can maintain this action? As a rule, "the title to personal property passes to the administrator or executor, and he only can sue for the property on an injury thereto." Smith v. Denny, 37 Mo. 20. "On the death of the owner personal property descends to his legal representative, though he leaves no debts and the claimant is his sole distributee." Adey v. Adey, 58 Mo.App. 408. "Personal property passes to the administrator, and he alone, and not the heir, has a right to the possession thereof, and can alone sue therefor, unless the probate court dispenses with any administration." McMillan v. Wacker, 57 Mo.App. 220.

The contention of the plaintiffs is, that the facts stated in the petition exclude every contingency under which an administrator de bonis non may be appointed. Section 46, Revised Statutes 1899, only provides for administrators de bonis non where executors or administrators of an estate die, resign, or their letters are revoked. Said section is silent in regard to a case of final settlement and discharge. See Grayson v. Weddell, 63 Mo. 523. Section 61, idem, provides that on the death of one partner the surviving partner shall, within thirty days after the granting of letters on the estate of the deceased partner, give the bond required of him as administrator of the partnership estate, and in case he neglects or refuses to do so, the executor or administrator of the deceased partner shall, by complying with the provisions of the section, administer the partnership estate. It is argued, that as there is no statutory authority, under the facts stated in the petition, for the appointment of an administrator de bonis non of the estate of the deceased, there is no way in which the partnership estate can be administered, therefore the remedy alone is by resort to a court of equity in the name of the heirs.

It seems that the statute fails to provide for the administration of a partnership estate except, either by the surviving partner or by the administrator of the surviving partner. The surviving partner having failed to administer the partnership estate and having administered the deceased partner's estate, made final settlement and received his discharge, it seems to us in the absence of authority that the office of such administration was functus officio, and that the defunct was beyond the power of resurrection. But the Supreme Court in Howell v. Jump, 140 Mo. 441, 41 S.W. 976, held that under certain circumstances an administrator de bonis non could be appointed after final settlement of the administrator. In that case, debts amounting to...