Emmons v. Gordon

• Decision Date: 06 July 1897
• Parties: Emmons, Administrator, Appellant, v. Gordon et al
• Court: Missouri Supreme Court

41 S.W. 998

140 Mo. 490

Emmons, Administrator, Appellant, v. Gordon et al

Supreme Court of Missouri

July 6, 1897

Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

W. W Fry for appellants.

(1) The form of the bond is merely directory and can not be avoided because the form of the statute has been disregarded. Hicks v. Chouteau, 12 Mo. 342; Hall v Cushing, 26 Mass. 395. (2) By the will the executor is directed to sell all of his real estate, wherever situated, and pay his debts, etc. In selling the Texas land the executor was "executing the will" as executor and he and his bondsmen are undoubtedly liable for the proceeds of the sale. (3) Although the general principle is that the realty descends to the heir, yet when an executor is authorized by the will to sell the real estate and execute deed to convey the title to the same and he exercises the authority he is liable on his bond as executor if he fails to account for the proceeds. Dix v. Morris, 66 Mo. 514; Lewis v. Carson, 93 Mo. 587. A will giving power of sale vests the title in the executor at the time of the testators' death, and his deed of the property is a good conveyance. Here the distinction between an executor and administrator is drawn. Wilson v. Wilson, 54 Mo. 213; Bambrick v. Webster Gr. Ch., 53 Mo.App. 234. (4) As executor he is responsible and his sureties liable for all assets, obtained in whatever State, by virtue of the will. Hooper v. Hooper, 29 W.Va. 276; 2 Woerner on Administration, sec. 537; Pipkin v. Casey, 13 Mo. 347. An executor is chargeable with all property of the estate coming to his hands, no matter from what source derived. Scudder v. Ames, 89 Mo. 496; Shouler on Executors, sec. 175, p. 236; Gamble v. Gibson, 59 Mo. 585; Lewis v. Carson, 93 Mo. 587; State to use v. Scholl, 47 Mo. 84. (5) An executor can not allege his own wrong to shield himself from liability. Hartnett v. Fegan, 3 Mo.App. 1; Pipkin v. Casey, 13 Mo. 347.

George Robertson for respondents.

(1) This being a statutory action it can be maintained only against the principal and sureties upon the bond. Any order and judgment can only be enforced "against the executor and his sureties." R. S. 1889, sec. 48. (2) The probate court has no jurisdiction over the trust items. All items as to rent should be stricken from the settlements. Nichols v. Reyburn, 55 Mo.App. 1; Coal Co. v. Slevin, 56 Mo.App. 107; In re Rickenbaugh, 42 Mo.App. 328. (3) The Texas land items should be stricken from the settlements. Lewis v. Carson, 93 Mo. 587; McPike v. McPike, 111 Mo. 216; Church v. Robberson, 71 Mo. 338; Scudder v. Ames, 89 Mo. 522.

Burgess, J. Barclay, C. J., Gantt and Sherwood, JJ., concur; Brace and Robinson, JJ., dissent; Macfarlane, J., not sitting.

OPINION

In Banc.

Burgess J.

-- This proceeding was begun in the probate court of Audrain county under section 48, Revised Statutes 1889, to compel the defendant Gordon, as executor of the last will and testament of J. J. West, deceased, to account with the plaintiff as administrator de bonis non with the will annexed of said deceased, and for judgment against said Gordon and his securities and the heirs of William M. Sims one of the sureties now deceased on his bond as such executor. The case went by appeal from the probate to the circuit court of Audrain county.

J. J. West, deceased, died testate. His will is as follows: "Know all men by these presents, that I, Jeremiah J. West, of the county of Audrain and State of Missouri, do make and publish this, my last will and testament.

"Item first. I desire, will and direct that all my just debts shall be paid from the proceeds of my property, and to that end I will and direct my executor to sell at public or private sale, and on such terms as may seem best, all or so much of my property as may be necessary for the payment of my debts, and I hereby give him full power and authority to execute such deeds and conveyances to any and all of my property as may be necessary to convey the title to the same. And I direct my executor to pay my debts as soon as may be after my decease.

"Item second. After the payment of my debts it is my will, and I hereby direct, that my executor pay over to my beloved wife, Zelophia West, the full net income and proceeds of all property remaining undisposed of and not necessary for the payment of debts. Said income and proceeds to be paid to my said wife, as it accrues, for the support and maintenance of herself and her children during her natural life, and after the death of my beloved wife I will and direct that all my property remaining undisposed of be sold and the proceeds be divided equally between the following named of my children, that is to say: Jeremiah J. West, Jr., Enoch Bascum West, Mary Jane Cox, Nancy Marvin Fowles, Martha Caples West and Sarah Pierce West, until each one of the above named children shall have received the sum of two thousand dollars, and after the above named of my children shall have received the sum of two thousand dollars each, then it is my will and I hereby direct that the rest and residue of my property be divided among all my children, share and share alike.

"Item third. I give and bequeath to my daughter, Louisa Gardner, the sum of five dollars and also an interest or share in the residue of my estate if there shall be any after giving to my other children the sum of two thousand dollars each.

"Item fourth. It is my will, desire, and I so direct that my wife retain and keep all my household and kitchen furniture, beds and bedding and two cows, and provisions for one year for herself and family.

"Item fifth. I hereby appoint John M. Gordon of Audrain county my executor, and direct him to execute and carry out this, my last will and testament.

"Item sixth. I commit my soul to God, who gave it, and direct that my body be decently buried. In witness whereof I have hereunto set my hand on this 11th day of April, 1879. J. J. West."

John M. Gordon qualified as executor and as such executed bond as follows:

"We, John M. Gordon as principal and William M. Sims, Chas. W. Baker, C. T. Black and Robert Luckie, Jr., as securities, are held and firmly bound unto the State of Missouri in the sum of ten thousand dollars, for the payment of which we do hereby bind ourselves, our heirs, executors and administrators firmly by these presents.

"Sealed with our seals, and dated at Mexico, in the State aforesaid, this 28th day of April, 1879.

"The condition of the above bond is that if the said John M. Gordon, executor of the last will and testament of J. J. West, deceased, late of Audrain county, Missouri, shall well and faithfully execute the said last will and testament, and shall make true and faithful inventories, returns and settlements of accounts of the estate of the said testator, according to law; and shall, 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 this obligation to be void and of no effect; otherwise to remain in full force.

"John M. Gordon, [SEAL]

"William M. Sims, [SEAL]

"Charles W. Baker, [SEAL]

"C. T. Black, [SEAL]

"Robert Luckie, Jr., [SEAL]

"Filed for record April 28th, 1879."

William M. Sims died some time prior to May 25, 1885, leaving a will which was duly probated on that day in the probate court of Audrain county. Final settlement of his estate was made September 15, 1887. Mrs. Potts and Mrs. Clark were the only heirs of Sims, who with their husbands, J. A. Potts and C. F. Clark, are made defendants. The proceedings were dismissed as to C. T. Black, in the probate court on the twenty-third day of February, 1891. At the September term, 1895, of the Audrain circuit court the death of John M. Gordon was suggested of record, and the suit revived against the defendant Robert Luckie as his administrator, who entered his voluntary appearance.

At the time of West's decease he was the owner of a large personal estate and several tracts of land in the State of Missouri, and several large tracts of land in the State of Texas. Gordon sold the lands in Texas under the power conferred upon him by the will as executor, and as such received the purchase money and executed deeds therefor.

The trial court, in passing upon the case and in rendering judgment, said: "The plaintiff has filed an itemized statement of the amounts he contends the defendant should be charged with in the final settlement. First and most prominent among them is a balance of the purchase price of land situate in Texas sold by Gordon as executor and only part of the consideration accounted for by him. That he failed to account for $ 1,529.74 of the purchase price, is proven beyond controversy. The defendants contend, and by their motion in the case so ask, that this court strike out of his settlement a charge made by him against himself of $ 4,555.68, proceeds of such sale, for the reason he had no authority as executor to sell the land or receive the purchase price and hence could not receive it as executor." The court then rendered the following judgment:

"Now on this February 10, 1896, this cause being called by the court, the said cause having been heard at the last September term and taken under advisement, the court doth find the following items in favor of the plaintiff and against the said John M. Gordon's estate, as follows:

John M. Gordon, ExecutorDr.,

To estate of J. J. West, deceased.

Amount received by him from Hy Barker, March 29, 1880

$ 675 56

6 per cent interest thereon to Jan. 20, 1896

640 69

Amount received from Harrison, December 20, 1881

269 50

6 per cent interest...