Ferguson's Adm'r v. Carson's Adm'r

• Decision Date: 31 October 1885
• Parties: FERGUSON'S ADMINISTRATOR v. CARSON'S ADMINISTRATOR, Appellant.
• Court: Missouri Supreme Court

86 Mo. 673

FERGUSON'S ADMINISTRATOR

v.CARSON'S ADMINISTRATOR, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Leonard Wilcox and Broadhead & Haeussler for appellant.

(1) The demand of plaintiff on the basis on which the notice was given was void, for it was a claim originating after the death of the claimant by his having paid a judgment rendered against the estate of deceased. Trustees, etc., v. McElhinny, 61 Mo. 542. (2) Moreover, the circuit court, which rendered the original judgment, never had jurisdiction over the person of defendant, as the cause was never revived against him during the time required by law, and the administrator could not give jurisdiction by his appearance at trial years after suggestion of death. Beardslee v. Morgner, 73 Mo. 22; Rutherford v. Williams, 62 Mo. 253. (3) The court, under the law, had no power to allow the demand in favor of the plaintiff. He never had a demand against Carson at the time of his death; he merely paid the demands for which he was administrator's security, by going through the form of taking an assignment to his attorney, Jamison. Neither the administrator, nor his attorney, had power to waive notice on such a claim, and let it be allowed fifteen years after administration granted; and moreover, judgment was paid. McDowell v. Lee, 37 Mo. 204; Hull v. Sherwood, 59 Mo. 172; Wernecke v. Kenyon, 66 Mo. 283. (4) Inasmuch as the settlements showed that the administrator had ample funds, or should have had them, on hand to pay the demand claimed by plaintiff, the creditor could not obtain an order of sale of the realty when a portion of that realty had already been sold, deed made by the administrator and his sister as residuary legatees, and the funds acknowledged to be in the hands of the administrator for the purposes of administration. To permit this to be done fifteen years after such sale and charge, would be a gross fraud on the purchaser. (5) The Webb purchase money was assets of the estate for which the administrator was liable. Dix v. Morris, 66 Mo. 518; Campbell v. Johnson, 65 Mo. 439, 440; Boyer v. Allen, 76 Mo. 498; 3 Jarmon on Wills (5 Am. Ed.) 427. (6) The administrator improperly used $5,140 of the money of the estate to pay off mortgage debts. 3 Jarmon on Wills (5 Am. Ed.) 474, 477; 3 Williams on Adm'r (6 Am. Ed.) 1801, 1803; 1 R. S., 1879, secs. 138, 149, 201, 230; Lake, Adm'r v. Meier, Adm'r, 42 Mo. 389; Ross v. Julian, 70 Mo. 209, 212; Evans v. Snyder, 64 Mo. 516; Greene v. Holt, 76 Mo. 678; Cape Girardeau v. Harbison, 58 Mo. 90; Church v. HcElhinny, 61 Mo. 542; Burdyne v. Mackey, 7 Mo. 375. (7) The administrator paid out $19,854 to special legatees and residuary legatees and devisees, which must be ignored in this proceeding. 1 R. S., 1879, secs. 243, 245. (8) The administrator should not be allowed credit for the sum of $2,109, used to pay taxes on the real estate. Wilcox v. Smith, 26 Barb. 337; McElhinny v. Church, 61 Mo. 543; Gray v. Clement, 12 Mo. App. 579; Burdyne v. Mackey, 7 Mo. 374, 375. (9) The sum of $1,363.52, used by the administrator to pay special tax bills, must be ignored. In re Motier's Estate, 7 Mo. App. 514, 518; Higgins v. Ausmuss, 77 Mo. 351. (10) The administrator had no authority to use the funds of the estate to repair or insure the real estate, and these credits must be disallowed. In re Motier's Estate, 7 Mo. App. 518; Byrd v. Governor, 2 Mo. 102; Richie v. Withers, 72 Mo 559. (11) Not having brought the assets of the co-partnership of J. B. Carson & Brother into the present administration, the administrator cannot be allowed credit for demands against that co-partnership estate, especially as they were never presented or allowed. 1 R. S., 1879, sec. 201, 230.

E. T. Farish for respondent.

(1) Upon the showing made by the administrator, and under the evidence adduced at the hearing, it was the duty of the court to make the order of publication required by R. S. sec. 148. (2) An appeal lay from the action of the probate court in refusing to make the order of publication. R. S., sec. 292; McCrary v. Manteer, 28 Mo. 446; Duff v. Doyle, 56 Mo. 301; McVey v. McVey, 51 Mo. 486; Wilson v. Brown, 21 Mo. 410. [3] There never was any payment or assignment of the Ober judgment, and it was a valid and subsisting demand in favor of Ferguson against the estate of Carson. When a surety pays a judgment against himself and the principal, he has a right to have it assigned to him, and to use it as a subsisting judgment against the the principal. Goodyear v. Watson, 14 Barbour [N. Y.] 481; McDougald v. Dougherty, 14 Ga. 674; Alexander v. Lewis, 1 Metcalf (Ky.) 407; Creager v. Brengle,5 Har. 234; Alden v. Clark, 11 How. Pr. [N. Y.] 209; Harbeck v. Vanberbilt, 29 N. Y. 398. (3) It appearing that there was an unsatisfied judgment and no assets to pay it, the sale of real estate should have been ordered. The action of the probate court in refusing to make an order of publication was practically to deny the application for an order of sale.

BLACK, J.

In 1866 James O. Carson was appointed administrator, with the will annexed, of James B. Carson. The testator gave $2,500 to each of his two stepdaughters, and to a nephew one thousand dollars, to be paid as soon as practicable, and, if necessary, the executor was authorized to sell real and personal property for the payment of these amounts. The residue of his property, real and personal, he gave to his brother, James O. Carson, and sister, Mrs. Postlewaite.

In 1881 plaintiff, claiming to be a creditor of the estate, applied for an order of sale of real estate to pay debts. The administrator filed a statement showing the receipts and disbursements, disclosing a balance of $5,638.18 due to him, the plaintiff's demand, and another unpaid debt of $214.33. He also gave a schedule of the real estate, and disclosed that there was no personal property on hand. The probate court refused to make the preliminary order of publication, and the plaintiff appealed to the circuit court with a like result, and then to the court of appeals, where the judgment of the circuit court was reversed, and the defendant then appealed.

1. The first question is, will an appeal lie from the probate court on this order? Section 292, Revised Statutes, allows an appeal from the decision of the probate court on all orders for sale of real estate, on the refusal of the circuit court to order sale of real estate to pay debts or legacies, and in all other cases where there shall be a final decision of any matter arising under the administration law. The refusal of the court to make the order of publication was a refusal, in effect, to make an order of sale, for the former is essential to the latter, and was, also, a final disposition of the matter of the creditor's petition, so that an appeal must lie from such an order.

2. The statute provides in detail what the petition for sale of real estate, and the accompanying lists and schedules shall state; and “when such petition and such accounts, lists and inventories shall be filed, the court shall order that all persons interested be notified,” etc., and, “upon proof of publication, the court shall hear the testimony, and may, if necessary, examine all parties, on oath, touching the application, and make an order for the sale of such real estate, or any part thereof.” If the administrator fail to make the application, the creditor may make it, and the administrator must file the accounts, lists, etc. The probate court may, of course, determine the sufficiency of these papers, but when the proceedings are formal and regular, and the case thus made shows a proper case for an order of sale, as was done here, it is the duty of the probate judge to make the order of publication. The law does not contemplate an investigation of the accounts, and an inquiry as to whether there is a deficiency of personal property until after proof of the order of publication and all interested persons are before the court. The necessity of such notice before a hearing is forcibly demonstrated by the facts of this case. The court may, at the proper time, examine the merits of the application, whether there is any opposing interest or not. The order of publication should have been made, and the hearing, as to the order of sale, had at the proper time.

3. As this case must go back to the probate court, it will be proper to consider the other questions, as far as we can, which have led to this contest. The plaintiff, as a foundation of his demand, offered in evidence a transcript of some entries from the circuit court in a case of Ober et al. v. John B. Carson, which disclosed that an answer was filed by defendant in 1863, a suggestion of the death of defendant made in 1866, appearance of the administrator in 1876, and judgment for plaintiffs for over fifteen thousand dollars, and a credit thereon, and an assignment of the judgment to Mr. Glover. The balance of $5,114.92 was classed in the sixth class of demands, by the probate court, on the twenty-first of ...