Francisco v. Wingfield

• Decision Date: 12 March 1901
• Citation: 161 Mo. 542,61 S.W. 842
• Parties: FRANCISCO v. WINGFIELD et al.
• Court: Missouri Supreme Court

61 S.W. 842

161 Mo. 542

FRANCISCO v. WINGFIELD et al.

Supreme Court of Missouri, Division No. 1.

March 12, 1901.

EXECUTORS AND ADMINISTRATORS — ACCOUTING — JURISDICTION OF COURT — ADMINISTRATOR DE BONIS NON — PUBLIC ADMINISTRATOR — LIABILITY TO ACCOUNT — DEFENSE.

1. Under Rev. St. 1889, §§ 47, 48, requiring executors or administrators on their removal or resignation to deliver all personal property to their successors, and making it the duty of the successors to move the court to compel such executors to make final settlement, the county court has jurisdiction of the application of a succeeding administrator to force the public administrator, who took charge of an estate on the removal of an executor thereof, to make a final accounting.

2. Where a will positively directs the executor to sell testator's realty, the power of sale is not personal, but passes to a succeeding administrator on the removal or resignation of the executor named in the will.

3. Where a will positively directs the executor to sell testator's real estate, a successor of the executor who sells the property does not hold the proceeds as trustee for the heirs, but as assets of the estate, and may be compelled to account therefor in the county court, under Rev. St. 1889, §§ 47, 48.

4. Where an executrix is not discharged on an accounting, but the estate is continued to enable her to carry out a power to sell real estate given in the will, the jurisdiction of the county court to compel an accounting by an administrator afterwards appointed on the removal of the executor cannot be defeated on the ground that such accounting terminated the administration, and that the subsequent removal and reappointment were void, and that the property is thus held as trustee, and not as administrator.

5. The power of the probate court to appoint an administrator de bonis non is not defeated by the fact that all the estate debts have been paid.

Appeal from circuit court, Saline county; Richard Field, Judge.

Proceedings by George M. Francisco, as administrator, against James Wingfield and others, to compel an accounting by the latter as a former administrator of the estate represented by plaintiff. From a judgment dismissing the proceedings, plaintiff appeals. Reversed.

Robt. M. Reynolds and L. W. Scott, for appellant. Duggins & Rainey, for respondents.

ROBINSON, J.

This is a proceeding, under sections 47, 48, Rev. St. 1889, instituted in the probate court of Saline county against James Wingfield, former administrator in charge of the estate of George S. Hawkins, deceased, whose authority had been revoked, and the sureties on his official bond, to ascertain the amount and kind of property in his hands, and compel him to account with the plaintiff as administrator de bonis non of the deceased, and for judgment against Wingfield and his sureties. The probate court dismissed the proceeding for want of jurisdiction. Plaintiff then appealed to the circuit court, where, upon trial anew, like judgment was rendered, and the plaintiff appealed.

The record shows that George S. Hawkins died in Saline county, Mo., in 1871, leaving a will which was duly admitted to probate in that county. He appointed M. M. Rhoads and his wife, Francis M. Hawkins, as executors thereof. After giving his wife a life estate in all his personal property and a large portion of his real estate, the will provided: "I will the remainder of my land, being on the south side of the road above named, and the Faucett tract, be sold by my executors, the money arising from the sale of said land to be loaned out, and that my wife be permitted to use the interest of the same in assisting her in the raising of and educating of my younger children. After the death of my wife, I will that my executor is fully authorized and empowered to take in charge all of my property, both real and personal, that is on hand, and to sell and dispose of the same either at public or private sale, and divide the proceeds among my children." The widow alone qualified, and took charge of the property and proceeded to administer on the estate. She made an annual settlement in 1872, and gave notice of her intention to make a final settlement at the January term, 1874, of the probate court. On January 9th she appeared and filed an account for final settlement, showing a balance in her hands of $375.80. The probate court approved the settlement, found that all the debts had been paid, and thereupon ordered "that she retain said sum of $375.80 as her property under the will, and that the administration of such estate be continued for the purpose of carrying out the provisions of the will of the said deceased, — in selling the real estate and lending out the money received from the same." The widow continued in charge of the estate until August, 1885, when the probate court, by reason of her marriage, revoked her letters, and ordered defendant Wingfield, public administrator of Saline county, to take charge of said estate as administrator de bonis non with the will annexed. At the time her authority was revoked she had in her hands as executrix, in addition to the balance of $375.80, the sum of $855 in cash, and several notes taken by her on account of purchase price of certain real estate sold under the power of sale contained in the will. In pursuance of said order Wingfield made an inventory of all the real and personal property belonging to the estate, except that portion of the land theretofore sold by the executrix, and filed the same in the probate court. On her failure to turn over the notes and money in her hands, Wingfield, as such administrator, begun a statutory proceeding in the probate court to require her to account, and for judgment against her and the sureties on her bond, which ultimately terminated in a judgment in favor of Wingfield for $855. This judgment was afterwards collected by him. She also delivered to him a note for $890 received by her for the purchase price of certain real estate sold by her, as executrix, under the power of sale contained in the will. Afterwards Wingfield sold the remaining portion of the real estate, except that portion in which the widow had a life estate, under the power given by the will, as administrator, and as such received the purchase money and executed deeds therefor. Such sale was reported to and approved by the probate court, although there never was any order of the court directing the sale thereof. The administrator continued to make regular annual settlements with the probate court, in which he charged himself with the amounts received from the sale of real estate, and interest thereon, together with the amount collected on the judgment against the executrix, and took credit for the expenditures until 1892, after which time no further settlements were made. In August, 1895, the probate court revoked the letters of Wingfield and ordered plaintiff, then public administrator of Saline county, to take charge of the estate and administer the goods unadministered belonging to the estate. At the time of revocation of his authority there remained in his hands, as shown by his annual settlements, notes and money amounting in the aggregate to $5,517.05, derived from the sale of this real estate, in reference to which no order of distribution had been made. On Wingfield's failure to make a final settlement of the estate and deliver to plaintiff, as his successor, the amount of money and property shown to be in his hands as the proceeds of the sale of real estate, this proceeding was instituted against him and his sureties on his official bond, based on the theory that upon the death of the testator the probate court became vested with jurisdiction to administer on his estate, and that the jurisdiction thus obtained continued until the estate was finally wound up and all the money and property in the hands of the administrator belonging to said estate, and received in his official character, accounted for and delivered to the parties entitled thereto; that having, by virtue of his authority as administrator de bonis non, received the proceeds of the sale of these lands, both he and his sureties are bound to account in his character as such administrator with his successor, under the supervision of the probate court. In other words, the plaintiff maintains that inasmuch as Wingfield, by his own showing, received the proceeds of the sale of land belonging to the estate, under color of his office, he is chargeable therewith, and can be required to account in his official capacity with the probate court therefor. Counsel for defendants, on the other hand, contends: First. That the estate was finally settled by the executrix in January, 1874, and consequently there was nothing further for the probate court to do; that by reason of such settlement the probate court lost jurisdiction of the matter, and that all proceedings of said court touching the estate since such settlement, including the order appointing Wingfield administrator de bonis non, as well as the order placing the estate in plaintiff's charge as his successor, are absolutely void, and that the plaintiff was not entitled to recover the proceeds arising from the sale of land under the power in the will. Second. That as the money in Wingfield's hands was derived wholly from the sale of real estate, under a specific power given by the will, creating an independent trust, the same is not an asset of the estate, but constituted a trust fund, which was held by him as trustee, and not in his representative capacity; that he was not chargeable in this proceeding with, or liable for, the proceeds received from the sale of real estate sold by him as such administrator under the power of sale contained in the will, and therefore is not accountable in the probate court for a fund received by him as trustee; moreover, that all controversies in reference thereto should be determined in a court of chancery.

So that the...