Day v. Graham

• Decision Date: 04 March 1889
• Citation: 97 Mo. 398,11 S.W. 55
• Parties: DAY et al. v. GRAHAM.
• Court: Missouri Supreme Court

11 S.W. 55

97 Mo. 398

DAY et al. v. GRAHAM.

Supreme Court of Missouri.

March 4, 1889.

EXECUTORS AND ADMINISTRATORS — JUDICIAL SALES — EQUITY.

1. Rev. St. Mo. § 170, provides that if upon the settlement of the administrator's accounts it appear that the personal estate is not sufficient to pay debts, the court may make such order as it thinks necessary for the sale of the real estate. Section 222 requires the administrater at the first term of the probate court after the end of one year from the date of his letters, to exhibit his accounts for settlement, and to make a like exhibit every year thereafter. Held, that upon the filing of the annual settlement at the proper time, the court may during the term order a sale of the realty without petition and order to show cause.

2. It is no ground for setting aside an administrator's sale, that the only debts due by the estate at the time of the sale were debts secured by mortgage on the land in question.

3. Two tracts of land were sold to the decedent's surviving partner, subject to two mortgages, and by his direction the deed to one tract was made to defendant, who had married decedent's widow. No money was paid to the administrator, but he charged himself with the amount of the bid, and credited himself with a claim held by the surviving partner, as he alleged, by agreement of both defendant and the partner. No such claim was ever allowed against the estate, but it appeared that the surviving partner received as devisee such claim against the firm, which he agreed to cancel if defendant would pay off the mortgages on the land sold, which he did, the surviving partner making no objections in his life-time. Held, that the heirs of the surviving partner were not entitled to have the deed to defendant set aside for want of consideration.

Appeal from circuit court, Buchanan county; H. K. WHITE, Special Judge.

J. W. Boyd, for appellants. Woodson & Woodson and Ramey & Brown, for respondent.

BLACK, J.

This is a suit by Mrs. Day, who is the sole heir of Simon Hawkins, and by the heirs of William Hawkins, to set aside an administrator's deed, conveying to the defendant 148 acres of land, which was formerly owned by the ancestors of these plaintiffs. The court, on a hearing of the cause, dismissed the petition, and the plaintiffs appealed.

It appears that Simon and William Hawkins were partners and as such owned the 148 acres of land in suit, and also other lots and lands. Simon died in 1875, and William Hawkins then took out letters of administration, but his letters were revoked for failure to give bond as required by order of the probate court. On the 11th September, 1876, the probate court of Buchanan county ordered the partnership estate into the hands of the public administrator. Plaintiffs put in evidence an order made by the probate court on the 8th January, 1878, which recites that the public administrator files his settlement, from which it appears that there is not sufficient personal assets to pay the allowed demands; and the administrator is then ordered to sell real estate for the payment of debts, describing that now in question, and also some other land. The property was sold under this order on 12th February, 1878, and the sale was duly approved at the May term, 1878, and at that time the defendant received the deed in question for the 148 acres.

1. The first point made is that, since this order of sale was made on an annual settlement only, and not on a petition therefor with notice, that it is void, — void because the order was not made at a term at which the annual settlement was due. By section 222, Rev. St., it is made the duty of every administrator, at the first term of the probate court after the end of one year from the date of his letters, to exhibit his accounts for settlement, and to make a like exhibit at the corresponding term every year thereafter. The public administrator was ordered to take charge of the estate on the 11th September, 1876. The four terms of the probate court began on the first Mondays of February, May, August, and November. From this it will be seen that the first annual settlement was due at the November term, 1877. The order of sale was made on the 8th January, 1878, but at and during the November term, 1877. The settlement having been filed at the proper time, the court had the right and power to make the order of sale thereon without petition and order to show cause. This is the settled construction of section 170, Rev. St.¹ Patee v. Mowry, 59 Mo. 161; Teverbaugh v. Hawkins, 82 Mo. 183.

2. Plaintiffs offered to show, and for all the purposes of this case we assume, that at the date of the order of sale the debts of the partnership had all been paid, save two, which were secured by deeds of trust on the land in question and on other lands. On one of...