Dockery v. Sparks

• Decision Date: 09 December 1912
• Citation: 170 Mo. App. 651,157 S.W. 365
• Parties: DOCKERY et al. v. SPARKS.
• Court: Missouri Court of Appeals

157 S.W. 365

170 Mo. App. 651

DOCKERY et al. v. SPARKS.

Kansas City Court of Appeals. Missouri.

December 9, 1912.

On Rehearing, May 19, 1913.

EXECUTORS AND ADMINISTRATORS (§ 278) — INTERMEDDLING WITH ESTATE — LIABILITY.

Under Rev. St. 1889, § 223, providing that on every settlement the administrator shall show that every claim for which disbursements have been made has been allowed by the court, one who collects and preserves a decedent's estate, and who pays debts of the decedent, and who is subsequently appointed administrator, is not entitled, over the objections of the heirs, to credit in his final settlement for the debts paid; the heirs admitting that third persons would testify that the credits were debts of decedent.

Johnson, J., dissenting.

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

Proceedings for final settlement of the account of Perry E. Sparks, administrator of Matthew Sparks, deceased, in which Thomas J. Dockery and others, heirs of the deceased, appeared and filed objections. From a judgment sustaining the objections, the administrator appeals. Affirmed, and cause certified to the Supreme Court for final determination.

Weatherby & Frank, of Kirksville, for appellant. Higbee & Mills, of Kirksville, for respondents.

JOHNSON, J.

The respondents are the heirs of Matthew Sparks, who died testate in Adair county March 7, 1906. The appellant was the brother of the deceased, and on April 20, 1907, became administrator of the estate under letters of administration with will annexed issued by the probate court of Adair county. It appears that in the interim between the death of the testator and the issuance of the letters appellant administered the personal estate. He collected and preserved the property and paid debts of the deceased aggregating $2,327.74. It is admitted these debts were valid and would have been allowed by the probate court as demands against the estate had they been presented and proved in the time and manner prescribed by law. They were not so presented and proved, but in his annual and final settlements appellant included these disbursements as credits. Respondents filed objections to the final settlement and at the hearing of the objections on appeal the circuit court sustained them, holding that appellant was not entitled to credit for debts of the deceased which he had paid before his appointment and qualification as administrator for the reason that none of such debts had been allowed as demands against the estate as provided by law. Judgment was rendered accordingly, and the administrator appealed. Counsel for appellant argue: First, "that these debts were paid by him out of the assets of the estate during the year 1906 and before his appointment as administrator; that his subsequent appointment and qualification as administrator of said estate related back and covered the former acts thereby legalizing all he had done in the interest of the estate, thereby rendering the exhibition and allowance of said claims unnecessary;" and, second, counsel insist that since the purpose of the statutes relating to the allowance of demands against estates of deceased persons is to prevent the payment of unjust demands, the admission of respondents that the claims in question were legal and just and that appellant paid them out of the estate of the deceased deprives respondents of the right to say that appellant is not entitled to credit for them in his final settlement.

At common law an administrator de son tort (which meant a person who assumed to act as the administrator of an estate without lawful appointment and authority) might be held to respond to the demand of a creditor or distributee of the estate as though he were its lawful administrator, and, in an action of such character, might defend by showing that he had paid debts of the deceased to the amount of the goods received. Weeks v. Gibbs, 9 Mass. 74. "It seems to be well settled that an executor in his own wrong may always plead that he has fully administered." Olmsted v. Clark, 30 Conn. 108. And further it was a well-settled rule at common law that, "when an executor de son tort takes out letters of administration, his acts are legalized, and are to be viewed in the same light as if he had been rightful executor, when the goods came into his hands." Magner v. Ryan, 19 Mo. 196. In this case as well as in the case of Foster v. Nowlin, 4 Mo. 18, the Supreme Court held in effect that the common law relating to executors or administrators de son tort was still a part of our jurisprudence. But later this view was challenged by this court in Rozelle v. Harmon, 29 Mo. App. 569, in an able opinion written by Philips, P. J., and the conclusion was reached that our statutory system of administration, which had been enlarged since the earlier cases to which we have referred, had made obsolete the common-law rules and was exclusive of them. This case was certified to the Supreme Court, and the conclusion of Judge Philips was sustained by that court (103 Mo. 339, 15 S. W. 432, 12 L. R. A. 187). In the opinion which was written by Macfarlane, J., it is said: "The system provided by the laws of our state, for the settlement of the estates of deceased persons, was evidently intended to be exclusive of all others. * * * These provisions of the law are wholly inconsistent with the idea of executors de son tort as at common law. The administration laws of the state do not recognize the right to wrongfully administer."

The appellant cannot be regarded as an administrator de son tort when he paid the debts in question. He was a mere intermeddler. But it is argued that his subsequent appointment and qualification related back to the death of the testator and validated all his acts with relation to the estate performed during the period of his intermeddling. We are willing to concede, arguendo, that this is true with one most important exception. His subsequent appointment could not and did not have the effect of vitalizing the things he did which would have been beyond the scope of the authority of a lawful administrator. The doctrine of relation has never been carried to such an illogical extent. As is well said in a footnote in 3 Redfield on the Law of Wills (page 26): "This relation back of the appointment of one as executor or administrator can only afford a shield as to those acts which come properly within the scope of the authority of a rightful executor or administrator" — citing Bellinger v. Ford, 21 Barb. (N. Y.) 311.

The final question, therefore, is this: Would appellant, had he taken out letters before the payment of the debts, have been entitled to credit for these debts in his settlements? Prior to 1889 the statute relating to such settlements (section 230, Rev. Stat. 1879) provided: "Upon every settlement, the executor or administrator shall show that every claim for which disbursements have been made has been allowed by the court, according to law, or shall produce such proof of the demand as would enable the claimant to recover in a suit at law." This law protected an administrator in his payment of a just demand that had not been established in the manner provided in other sections of the statutes. And if it were still the law we would hold that the admission of respondents precluded them from attacking the credit, and that the probate court did right in allowing it to stand on proof of the validity of the debts. But, unfortunately for the position of appellant, this statute was amended in the Revision of 1889 (section 223) by striking out the part we have italicized, and since that date an executor or administrator may claim credit in his settlements only for the debts paid by him which have "been allowed by the court according to law."

Speaking of this change, the Supreme Court, in Langston v. Canterbury, 173 Mo. loc. cit. 129, 73 S. W. 152, approved the holding of Judge Barclay in Springfield Grocer Co. v. Walton, 95 Mo. App. 526, 69 S. W. 477, that "the alteration of the law in question was intended to make the allowance by the court an essential prerequisite to the payment of all ordinary demands against an estate."

Appellant, therefore, would not have been entitled to the credit had he paid these unallowed debts while he was the lawful administrator of the estate. The statutes provide a plan for a practical adjudication of demands of creditors against the estates of deceased persons, and the Legislature in the amendment of 1889 doubtless intended to make this plan exclusive and to put a stop to the somewhat general practice of executors and administrators paying demands at their own discretion. If a regularly appointed administrator could not lawfully have done what appellant did, no reason in law or morals could be assigned in justification of appellant, who was a mere intermeddler. To hold otherwise would be violative of the rule that the doctrine of relation applies only to those acts that a lawful administrator would have had authority to perform, and not to those in excess of such authority.

There is no question of estoppel in this case. The respondents, as heirs, are entitled to stand on their legal right to have the estate administered according to law, and, in the absence of any proof that they consented to the intermeddling of appellant, we cannot perceive any ground for holding them estopped by the mere fact that the debts voluntarily paid by appellant were, in fact, just claims against the estate. If this position of appellant were sound, then a lawful administrator could pay unallowed claims and defeat the prime purpose of the amendment of 1889 by showing that the claims were just, and, consequently, that the distributees, having no ground for contesting them, should be held to have acquiesced in their payment.

The case of Gupton v. Carr, 147 Mo. App. 105, 125 S. W. 849, much relied on by appellant, involved an entirely different state of facts from that before us and is...