Clarke v. Sinks

• Decision Date: 24 May 1898
• Citation: 144 Mo. 448,46 S.W. 199
• Parties: CLARKE v. SINKS et al.
• Court: Missouri Supreme Court

46 S.W. 199

144 Mo. 448

CLARKE v. SINKS et al.

Supreme Court of Missouri, Division No. 1.

May 24, 1898.

PAYMENT OF LEGACIES AND DISTRIBUTION — ACTION TO COMPEL — PRIMA FACIE EVIDENCE — RIGHTS OF DEVISEE.

1. When the time has expired for allowing claims against an estate, and all claims are settled, and the duty of paying legacies, or making distribution alone remains, an action for an executor's failure to pay legacies or an administrator's failure to make distribution can be maintained without an order for payment or distribution by the probate court.

2. This rule only applies where the purposes of the trust have ended and the sole duty remains of making payment to the heir or legatee, and the executor or administrator, in violation of his duty, has failed to make final settlement. Such suit cannot be maintained for failure to make a partial distribution while the administration is still pending in the probate court and no order has been made therefor.

3. An annual settlement of an executor is prima facie evidence of the correctness and legality of what it sets forth.

4. A testator devised certain land to his wife and certain other land to his blood kin, placing a valuation on the land devised to each. After making his will, he sold these lands, taking notes for the price, and made a codicil, providing that whenever he had sold property devised to his wife, the amount was to go to her in the proportion of the valuation as given in his will, and the proportion of the valuation of property devised to his blood kin was to be set apart from the personal estate, etc., declaring that sales made were with a view to carrying out the provisions of his will. Held that, the notes not being given solely for land which was intended for the wife, she could not require the executors to pay her part of the purchase money until the notes fell due and were paid, nor award to her notes amounting to her interest in the fund.

Appeal from circuit court, Cole county; D. W. Shackleford, Judge.

Action by Luvenia Clarke against M. R. Sinks and others. Judgment for plaintiff, and defendants appeal. Reversed.

D. H. McIntyre and Edwards & Edwards, for appellants. W. S. Pope, for respondent.

WILLIAMS, J.

Plaintiff, widow of J. M. Clarke, deceased, instituted this action in the circuit court of Cole county against his executors to recover certain bequests claimed to be due her under the will of her deceased husband. The suit is against the executors individually, and not in their representative capacity. Plaintiff bases her action upon an alleged breach of duty by defendants in failing and refusing to pay parts of certain legacies given her in the will, notwithstanding funds were in their hands applicable to that purpose, and the proper time for payment had elapsed, and demand had been made therefor. The petition contains three counts. The second was abandoned or dismissed. Plaintiff had judgment upon the first and third, and defendants have appealed.

Plaintiff's charges, which apply to both counts here for review, are that her husband, Joseph M. Clarke, made his will on the 26th of February, 1889, and appointed defendants executors thereof without bond; that he died in December of that year, and his will was admitted to probate on the 12th of said month; that defendants thereupon duly qualified as executors, and entered upon the discharge of their duties, and were still acting in that capacity. These allegations were admitted in the answer.

It is further alleged that deceased was not indebted in any sum except to plaintiff and for expenses incurred during his last sickness; that all funeral expenses and charges upon said estate had been fully paid; that more than five years had elapsed since letters testamentary were granted to defendants; and that "no part of the legacies, bequests, and devises made to plaintiff" was necessary to pay any charges against said estate, but that "the same is or ought to remain intact in the hands of the defendants." The answer, after some specific admissions, denied the other allegations, in which denial the averments set out in this paragraph were included.

It is also affirmatively charged upon this subject, in the answer, that defendants had paid a number of debts and claims duly allowed against the estate, amounting to about the sum of $4,993.49. Plaintiff, in addition to the above general statements, alleged, in the first count of the petition, that deceased, by his will, bequeathed to her "one-half of his bank stock, notes, and cash," and that defendants had delivered to her one-half of the bank stock (part of which she afterwards exchanged with them for certain promissory notes), but that they had, from time to time, collected a number of notes belonging to deceased at the time of the execution of the will and at his death, aggregating $6,378.80 (a list of which was given), and that she was entitled to one-half thereof, to wit, $3,189.40; that she had demanded the same from time to time, and continuously since the expiration of two years from the date of defendants' letters, and payment had been refused, and she asked judgment for the sum so alleged to be due, and interest thereon. The answer to this part of the complaint was an admission that some notes named therein had been collected, a denial that others had been paid, and an allegation that plaintiff had received her part of all of said collections. It may be here stated that the evidence and admissions disclosed that about $3,279.15 were received by defendants on these notes.

1. Defendants, in their answer and at the trial, challenged the jurisdiction of the circuit court, and objected to the introduction of any evidence under the petition, claiming that the probate court of Cole county, in which the administration was pending, had the exclusive right to order distribution of the estate and the payment of legacies, and until such an order should be made this action would not lie. The circuit court ruled this point in favor of plaintiff, and in so doing plainly followed the decisions of this court. It has been held in a number of cases that after the time has elapsed for the allowance of claims against an estate, and when all demands and charges of every kind have been settled, and the sole duty remains upon the part of the executor to pay the legacies, or of the administrator to make distribution, and he fails so to do, an action may be maintained against him for this breach of duty without waiting for an order of distribution by...