Cabanne v. Skinker

• Decision Date: 31 March 1874
• Citation: 56 Mo. 357
• Parties: JOSEPH CHARLESS CABANNE, et al., Plaintiffs in Error, v. T. K. SKINKER, Ex'r of ROBERT FORSYTH, et al., Defendants in Error.
• Court: Missouri Supreme Court

56 Mo. 357

JOSEPH CHARLESS CABANNE, et al., Plaintiffs in Error,

v.T. K. SKINKER, Ex'r of ROBERT FORSYTH, et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1874.

Error to St. Louis Circuit Court.

C. C. Whittlesey, and R. H. Spencer, for Plaintiffs in Error.

I. If an executor or administrator receive assets from abroad, he and his sureties are liable for the same. (Pipkin vs. Casey, 13 Mo., 349; Pratt vs. Northam, 5 Mass., 95; Shultz vs. Pulver, 3 Paige Ch., 182; S. C. on appeal affirmed, 11 Wend., 361; Lyman vs. Parsons, 20 N. Y., 103; Collins vs. Bankhead, 1 Strob., 25; Judge Probate vs. Heydock, 8 N. H., 491; Dowdall's case, 6 Coke., 48; Williams vs. Storrs, 6 Jurist Ch., 363; Doolittle vs. Lewis, 7 Jurist Ch., 45; Sto. Conf. L., § 518; Trecothick vs. Austin, 4 Mass., 33; Vroom vs. Van Horne, 10 Paige Ch., 549; Sherwood vs. Wooster, 11 Paige Ch., 441.)

II. A foreign administrator bringing assets into this State could be held accountable here in equity, if not as executor de son tort.

In Campbell vs. Tousey, (7 Cow., 64,) the foreign administrator was held responsible as executor de son tort. The authority of that case is questioned, but in States using the common law practice of administering estates it would seem to be correct. But equity would have jurisdiction, where a proper case was presented. (McNamara vs. Dwyer, 7 Paige Ch., 239, cited and approved in Lyman vs. Parsons, 20 N. Y., 103; Ordronaux vs. Helie, 3 Sandf., Ch. 512; Suarez vs. Mayor, etc., 2 Sandf., Ch. 173; Pugh's Ex'r vs. Jones, 6 Leigh, 299; Tunstall vs. Pollard, 11 Leigh, 1; Pipkin vs. Casey, 13 Mo., 349.)

III. The executor, deriving his authority from the will of his testator, has greater power than an administrator deriving his authority solely from the law of the State appointing him. The will is universally recognized, the statute is of no force outside of the State enacting it. (Rand vs. Hubbard, 4 Metc. Mass., 255; Taylor vs. Benham, 5 How., [U. S.] 233; 2 Kent's C., 430, n. a, and 431, n. c.)

Samuel Reber, for Defendants in Error.

I. Tesson, the executor, is not accountable as such for the proceeds of the Colorado Mine. (Peck vs. Mead, 2 Wend., 470; Morrill vs. Morrill, 1 Allen, 132; Aston's Est., 5 Whart., 228; Jacobs vs. Bull, 1 Watts, 370; Sto. Confl. Law, § 523 Hooker v. Olmstead, 6 Pick, 481.)

II. If we are to consider the suit as an attempt to hold the executor (and his sureties) liable as a trustee, on the ground that he has speculated on the trust fund, the petition is wholly insufficient, because it is not drawn with that view, or on that theory.

SHERWOOD, Judge, delivered the opinion of the court.

This was a proceeding in the nature of a bill in chancery to set aside, as fraudulently made, the annual settlements and the final settlement of the estate of John P. Cabanne, deceased--Edward P. Tesson being executor of the last will of the decedent--for taking an account of the sums of money received by Tesson during the course of his administration, and for judgment in favor of plaintiffs, who claim as residuary devisees and legatees of Cabanne, against said executor and the sureties on his bond. The petition is as follows:

Petitioners state, that John P. Cabanne, the brother of the petitioners, died on or about April 18, 1863, having made and published his last will, bearing date September fifteenth, eighteen hundred and sixty, which said will was duly proven before the St. Louis Probate Court on April 24th, 1863; that by said will said John P. directed that all his debts should be paid out of the real and personal estate devised and bequeathed to the plaintiffs, and he therein devised to his mother, Virginia C. Cabanne, two lots in Carr's addition, and directed his executor, Edward P. Tesson, to erect and build on said lots a dwelling house, to cost not less than $5,000, nor more than $10,000.

And subject to said bequest and devise, said John P. Cabanne bequeathed and devised the rest, residue and remainder of his estate, real, personal and mixed, to his brothers, the plaintiffs, Joseph C. Cabanne and Sarpy C. Cabanne, in equal shares as tenants in common.

The petition further states, that on May 1, 1863, said Edward P. Tesson duly qualified as executor, and gave bond to the State of Missouri in the penal sum of forty thousand dollars with the said defendants, Robert Forsyth and Pierre A. Berthold, as sureties, as required by law. Said bond was subject to a condition, that if the said Edward P. Tesson, executor of the last will and testament of said John P. Cabanne, should well and faithfully execute the said last will and testament, and should make true and faithful inventories, returns and settlements of account of the estate of the testator according to law, and should moreover do and perform all other matters and things touching the execution of said last will and testament as are or shall be prescribed by law or enjoined on him by the order, sentence or decree of any court having competent jurisdiction, then said obligation to be void, otherwise to remain in full force.

And thereupon letters testamentary, dated May 1, 1863, were by said St. Louis Probate Court duly issued to said Edward P. Tesson, as executor of the last will of said John P. Cabanne, and it thereby became and was the duty of the said Edward P., as executor, to look after and protect the property of the said John P. Cabanne, wherever situate, for the benefit of the creditors of the said John P. and his legatees and devisees, and especially for the benefit of the plaintiffs as residuary legatees and devisees of the said John P. Cabanne.

Sometime in the year eighteen hundred and sixty, the said John P. Cabanne purchased a valuable gold mine in Gilpin county, Colorado Territory, for which he paid the sum of ten thousand dollars. Said mine was known as the Bobtail Lode Gold Mine.

On or about April 1, 1861, said John P. Cabanne formed a co-partnership with Lamar E. Suber, who had been a clerk for Edward P. Tesson, and with Edward M. Tesson, a son of said Edward P., for the purpose of working said Bobtail Lode Gold mine, and other mines. The articles of said co-partnership were reduced to writing.

By the terms of said articles, it was agreed that said John P., Lamar E., and Edward M. should be jointly interested in the profits and losses of working said Bobtail Lode Gold Mine, each taking one-third of the profits, and paying one-third of the losses, but that said Suber and Edward M. did not purchase any part of the title, interest or estate of the said John P. in the realty of said mine, and by the terms of said articles, the title and ownership of said mine remained in said John P. Cabanne, and any title and interest remaining in said John P. at the time of his death vested in the plaintiffs as devisees, subject to debts due by him.

The petition states, that Edward P. Tesson was doing a banking business in the city of St. Louis from the year 1860 to the year 1864, under the name and style of Tesson and Danjen, and from the year 1864 to the date of his bankruptcy, in 1868, did business under the name and style of Tesson, Son, & Co., part of the time the firm being composed of the said Edward P. Tesson, Lamar E. Suber and Edward M. Tesson, the said Suber dying about A. D. 1865, and said Edward M. continuing until January 3, 1868, when said firm was adjudged bankrupt; that said Cabanne, Suber and Edward M. Tesson worked said Bobtail Lode Gold Mine, and other mines and mills for about two years, but made no profits to be divided, and became indebted to said Edward P. Tesson, doing business as Tesson & Danjen, in a large amount, but to what amount your petitioners cannot accurately state, but with ten per cent. interest, the rate charged by said Tesson & Danjen, the balance due on May 9, 1864, as appears by the books of Tesson and Danjen, was about the sum of $19,207.40; that the partnership of said Cabanne, Suber & Tesson was dissolved by the death of John P. Cabanne on or about April 18th, 1863; in the year eighteen hundred and sixty-two the said firm of Cabanne, Suber & Tesson became indebted to Benjamin F. Lathrop, of Colorado, who commenced suit against said firm, and process being served only on John P. Cabanne, the suit was dismissed as to said Suber and Tesson, and judgment was rendered on July 31, 1862, by the district court of said Territory in favor of said Lathrop against said John P. Cabanne for the sum of $490.48, which judgment was a lien upon the real estate of John P. Cabanne; that by virtue of an execution issued upon said judgment, the sheriff of Gilpin county, in said Territory, did levy upon and seize all the title and estate of said John P. in said Bobtail Lode Gold Mine, and on November 6, 1862, said sheriff did sell the said mine to said Lathrop, the plaintiff in the execution, for the debt and costs, and thereupon said sheriff did give to said Lathrop, as provided by the statutes of said Territory, a certificate of his purchase, and that said Lathrop would be entitled to a deed if said land was not redeemed by said John P., his heirs, executors, administrators or assigns within twelve months, or by a judgment creditor within fifteen months; that it was provided by the statutes of said Colorado Territory, then in force, that when the real estate of a judgment debtor should be sold under an execution issued upon a judgment, said judgment debtor, his heirs, executors, administrators and assigns might redeem said lands by paying the amount of the bid or purchase money, with ten per cent. interest, to the purchaser, at any time within twelve months, and it was also provided that said sheriff's certificate should be assignable, and that the assignee of the purchaser should be entitled to receive the sheriff's deed; that said Edward P. Tesson, after the death of said John P. Cabanne, and after he had taken out letters testamentary on the estate of said John P., to-wit, in the month of August, A. D. 1863, employed an...