Crenshaw v. Bentley

• Decision Date: 08 May 1888
• Citation: 31 Mo.App. 75
• Parties: FANNIE CRENSHAW, Guardian, etc., Appellant, v. J. F. G. BENTLEY, Administrator, etc., Respondent.
• Court: Missouri Court of Appeals

31 Mo.App. 75

FANNIE CRENSHAW, Guardian, etc., Appellant, v. J. F. G. BENTLEY, Administrator, etc., Respondent.

Court of Appeals of Missouri, St. Louis.

May 8, 1888

Appeal from the Greene Circuit Court, HON. W. D. HUBBARD, Judge.

Affirmed.

GOODE & CRAVENS, for the appellant: The administrator of an estate can take as assets only the property which the deceased owned at the time of his death. Rev. Stat., secs 69, 70; 2 Williams on Executors [Am. Ed.] 1407; Stockman v. Railroad, 15 Mo.App. 503, 570; Estate of Farron, 1 Ashmead's Rep. 319; Ashton's Estate, Wharton, 228; Griffith v. Beecher, 10 Barb. 432. It is an immemorial doctrine that where land is charged by the deceased with the payment of debts, it becomes trust property and is cognizable only in chancery. Bispham's Prin. of Eq., p. 473, sec. 532. Our probate courts have no chancery jurisdiction. Church v McElhinney, 61 Mo. 540. Want of jurisdiction may be taken advantage of at any time. Smith v. Ashby, 20 Mo. 350; Henderson v. Henderson, 55 Mo. 534; Abernathy v. Moore, 83 Mo. 65; Bray v Marshall, 66 Mo. 122; Eager v. Stover, 59 Mo. 87. The administrator of an estate can take as assets only the property which the deceased owned at the time of his death. Rev. Stat., secs. 69, 70; 2 Williams on Executors [Am. Ed.] 1407, 1432; Clay v. Willis, 1 B. & C. 364; Barker v. May, 9 B. & C. 489; S. C., 4 Mann. & R. 336. " An administrator derives all his powers from the statute, and it only authorizes him to sell lands of which his intestate was seized at his death, and he cannot under the orders of the probate court sell lands which had been conveyed by the deceased to defraud creditors." Bebee v. Souter, 7 Cent. Law Jour. 466; George v. Williamson, 26 Mo. 190. The evidence shows that the trustees accepted the trust, but had they declined this would neither have given the administrator authority nor have impaired the trust. No trust ever fails for the want of a trustee. An equity court would have enforced the provisions of the deed by appointing a new trustee to carry them out. Tiedeman on Real Prop., secs. 508, 510, and cases cited. The trust reposed in Heer and Doling by Crenshaw was an obligation imposed on them to apply the property conveyed according to the terms of the deed, and was based on the grantor's personal confidence in them. It could not be executed by the administrator or any one else except those to whom the powers were given by Crenshaw, or their successors duly appointed by a chancery court. Willis on Trustees, 2; Commissioners v. Walker, 6 Howard, 143. The trustees were not entitled to commissions, much less the administrator. Hill on Trustees, 889. The section of the statute authorizing the commission has no application to money realized by selling land which had been conveyed by the deceased prior to his death. Rev. Stat., sec. 229.

MCAFEE & MASSEY, for the respondent: An administrator is charged with all the property of the estate, no matter from what source derived. Scudder v. Ames, 89 Mo. 573; Schouler on Executors and Administrators, sec. 175. An administrator is entitled to, as a matter of law, " as compensation for his service and trouble, a commission of five per cent. on personal property and on money arising from real estate." Rev. Stat., sec. 229.

OPINION

THOMPSON J.

This is a very peculiar proceeding. In October, 1884, L. A. D Crenshaw and wife executed a deed of trust, by which Crenshaw (the wife releasing her dower) conveyed all his lands in Missouri and some lands in Alabama to Charles H. Heer and J. M. Doling, in trust, to be sold and the proceeds applied to the payment of his debts. They did not accept the trust, but the deed was duly recorded. In December of the same year Crenshaw made his will appointing Heer and Doling his executors. Soon thereafter he died, and in January, 1885, his will was admitted to probate in Greene county. Heer and Doling refused to qualify as his executors, and thereupon J. F. G. Bentley was appointed administrator with the will annexed. Bentley immediately qualified and entered upon the discharge of his duties as administrator, filing an inventory of the personal estate of the deceased and also of the real estate involved in the controversy. The personal estate proving insufficient to pay the demands allowed against the estate, the administrator filed a petition for the sale of the real estate embraced in his inventory. After due publication of notice, an order was made to the administrator by the probate court to sell such real estate. In pursuance of this order, he sold several parcels of the real estate to six different purchasers for the aggregate sum of $27,778.70. As administrator, he made his deeds to the several purchasers. But, in order to obviate the possible defect of title growing out of the fact that the deceased had conveyed in his lifetime the property in trust to Heer and Doling, they also made their separate deed to the respective purchasers. These deeds, which are identical in their recitals, recite the making of the deed of trust by Crenshaw in his lifetime; the subsequent death of Crenshaw, leaving many of his debts unpaid; the due appointment of Bentley as his administrator; that Bentley had been, by the probate court of Greene county, " duly authorized to sell the real estate of said L. A. D. Crenshaw, deceased, for the purpose of paying the debts of said deceased; " that Bentley, as administrator, had sold the particular real estate described in each deed to the particular grantee; that said sale had been by the probate court of Greene county " duly approved," and that Bentley had made and delivered a deed to the particular purchaser, conveying to him all the right, title, and estate of Crenshaw in and to the real estate purchased (describing it). It then proceeded in its granting clause as follows: " Now, therefore, know all men by these presents, that we, Charles H. Heer, Sr., and James M. Doling, of the county of Greene in the state of Missouri, have this day, for and in consideration of the sum of one dollar to us in hand paid, and for the further consideration of the sum of ten...