Gamble v. Gibson

• Decision Date: 31 March 1875
• Parties: HAMILTON GAMBLE, et al. Respondents, v. CHARLES GIBSON, Executor of HAMILTON R. GAMBLE. Appellant.
• Court: Missouri Supreme Court

59 Mo. 585

HAMILTON GAMBLE, et al. Respondents,

v.CHARLES GIBSON, Executor of HAMILTON R. GAMBLE. Appellant.

Supreme Court of Missouri.

March Term, 1875.

Appeal from St. Louis Circuit Court.

Charles Gibson, pro se.

I. All parties agree that Gibson invested $25,000 of the moneys of the estate in the purchase of this property, and he has received credit for the same in his probate settlements. The claim is, that in dividing the houses among Gibson and David and Mary Gamble, and the apportionment of the price to be charged to each party, their four houses were rated too high and Gibson's too low. Therefore, the first question is, what the perfect title to all the five houses cost, and how much Gibson paid for all the titles.

Services rendered by appellant in “winnowing out” the title were not in his capacity as executor, but as agent for David and Mary Gamble under their written order. He was acting against the will and not under it. His investment of the $25,000 under the order of the heirs, and the credit of same in his probate accounts, was the sum total of his action as executor. To test this, I ask, are his securities liable for anything beyond the payment of the money? Yet this judgment is conclusive as to them. (State vs. Holt, 27 Mo., 343.)

The waiver of the jurisdiction of the court below to determine the questions, is no acknowledgment that the services were rendered as executor.

II. The estate being solvent, the onus probandi is on the heirs to show affirmatively that the executor actually collected the rents, or, at least, that he, and not the heirs were in charge of the real estate. (Chambers vs. Wright, 40 Mo., 485; Aubuchon vs. Long, 23 Mo., 99.)

The executor having no interest in the real estate, or its produce, and having nothing to do with it, the Probate Court has no jurisdiction over the subject, further than to take proof of how much rent the executor actually received. The report shows that H. Gamble and D. C. Gamble were in charge of the real estate. The whole deficit occurred during the time D. C. Gamble was in control--from October, 1864 to April, 1865--and therefore, he, and not the executor, should be charged with the deficit.

III. Under the fourth exception, the referee finds “the whole amount collected by David C. Gamble to be fifteen hundred and twenty-five dollars.” Now, if the executor be responsible, it is on the theory that Gamble was in charge as his agent, or rent collector, and, if so, he cannot ask the court to presume that Gibson collected all the rents as executor, and not to presume that he collected all of them as agent.

IV. If the finding be correct, and the executor is chargeable with the rents in gross, the referee erred in not allowing him his commissions of five per cent. on the whole amount.

V. The executor, in his purchase of the gold, was acting as trustee for the benefit of others, and having acted in good faith and with reasonable discretion should be treated with great tenderness. (Fudge vs. Durn, 51 Mo., 264; Tiff. & Bull. Trusts & Tr., 599.)

Appellant had verbal authorization from D. C. Gamble, during his minority, to make the investment, and after he became of age, when appellant rendered him an account of the investment in which the “loss” was “included,” David gave him a receipt to cover the balance. He not only gave the receipt, but the gold bought was sold and proceeds entered to his credit, and he accepted the benefit of that credit. No exception was taken, nor objection raised, till the final settlement, five years afterward. He cannot now question the propriety of the investment. (Highly vs. Barron, 49 Mo., 107; Ferguson vs. Bell, 17 Mo., 347; Marshall vs. Fulton, 10 Wal., 684; see also, Pars. Contr., § 3, p. 49; Philip vs. Belden, 2 Edw. Ch. Rep., p. 1; Davis vs. Spurling, 1 Tenn., 199; S. C., 1 Russ. and M., 64; Botifeur vs. Wyman, 1 McCord Ch., 161; Kronenberger vs. Binz, 56 Mo., 121; Jacob vs. Emmetts, 11 Paige, 145; Larue vs. White & M. Korn, 8. Dana, 46; Langdon vs. Roane, 6 Ala., 527; Carroll vs. Paul, 16 Mo., 241; May vs. Kloss, 44 Mo., 301; Wade vs. Emerson, 17 Mo., 269; Thompson vs. Bennett, 34 Mo., 479; Grumley vs. Webb, 48 Mo., 578; Campbell vs. Johnson, 44 Mo., 247; Gibson vs. Hanna, 12 Mo., 165.)

Miller's receipt for $3,500 in gold was also given in settlement of balance due appellant, pro tanto, and the receipt was allowed in his annual settlement in 1867, and no exception to the investment taken for two years afterwards. The parties “reached an understanding,” and were “willing to call it square.” Mr. Miller was not entirely satisfied, but did not wish any family disturbances or difficulty, and wrote across the face of the account ““satisfactory,” and signed it at the suggestion of Gibson. No one who makes a compromise is “entirely satisfied.” The very idea of a compromise settlement is to “call it square,” whether entirely satisfactory or not. No settlement will ever be binding if this point is good law.

At all events, interest should not be charged. (Madden vs. Madden, 27 Mo., 544; Clyce vs. Anderson, 40 Mo., 37.)

A. J. P. Garesche, for Appellant.

I. Upon the statement of facts found, the Supreme Court will see if the statement warrants the conclusion of law as pronounced by the court. (Skinner vs. Ellington, 15 Mo., 489; Bates vs. Bowen, 17 Mo., 553; Hays vs. Hays, 26 Mo., 123; Wertheimer vs. City of Booneville, 29 Mo., 257; Smith vs. Harris, 43 Mo., 564; Gambs vs. Cov. Mut. Life Ins. Co., 50 Mo., 47; State vs. Sullivan, 51 Mo., 528.)

The report of the referee stands in attitude of a special verdict. (Western Boatm. Ben. Ass'n vs. Kribben, 48 Mo., 41; Franz vs. Detrich, 49 Mo., 95.) Hence, when findings of facts do not justify the judgment, the Supreme Court will reverse, and this in absence of any exceptions, or even a motion for review. (Shore vs. Coons, 24 Mo., 556.)

II. The finding of the referee shows, that shortly after qualifying, the executor turned over title papers and real estate to the devisees, allowing them to collect rents; and that he charged in his settlements only those reported to him. In a case like this, where the estate is solvent, he cannot be held for more (Bompart's Adm'r vs. Lucas, 21 Mo., 604.) The real estate and collection of rents thereon, belonged to the heirs. (Masterson vs. Girard and heirs, 10 Ala., 60; Bullock vs. Sneed, 13 Sm. and M., p. 294; Stinson vs. Stinson, 38 Me., 594; Haslage vs. Krugh, 25 Penn., 97; Aubuchon vs. Long, 23 Mo., 91; City of Booneville vs. Ormrod, 26 Mo., 193; Chambers vs. Wright's Adm'r, 40 Mo., 485; McGlothlin's Adm'r vs. Hemery, 44 Mo., 350.)

III. The executor was not responsible for losses caused by his investment in gold. (Kee's Ex'r vs. Kee's Creditors, 2 Grat., 116; Rowan vs. Kilpatrick, 14 Ill., 12; Elliott vs. Carter, 9 Gratt., 559; Wilkinson vs. Stafford, 1 Ves., 32; Vez vs. Emery, 5 Ves., 141; Powell vs. Evans, 5 Ves., 839; Powell vs. Stratton, 11 Grat., 801; Davis vs. Harsman, 21 Grat., 200; Brun. Ap., 57 Pa., 52; Houston vs. Deloach, 43 Ala., 372; Horine vs. Horine, adm'r, 11 Mo., 652; Fudge vs. Durn, 51 Mo., 267.)

IV. But even if investment cannot be sanctioned, the fault has been condoned. The accounts rendered by the executor to the parties, in which this loss on gold was credited to the executor, were without any objection for nearly two years. (Sto. Ag., 239, 244, 253, 255, 258; Crutchfield vs. Haynes, 14 Ala., 53; Waring, Ex'r vs. Purcell, Ex'r, 1 Hill's Ch. R., 202; Colbert vs. Daniel, 32 Ala., 322; Dugan vs. Hollins, 11 Md., 80; 11 Paige, 145; Lane vs. White & McKoin, 8 Dana, 46; Langdon vs. Roane's Adm'r, 6 Ala., p. 521; Phillips vs. Baldwin, 2 Edw., 1; Powell vs. Powell, 10 Ala. Chy., 912; Shepherd vs. State Bk., 15 Mo., 151; Freeland vs. Harn, 7 Cr., 151; 1 Sergt. & R., 406; Sherman vs. Sherman, 2 Vern., 176; Willis vs. Farnaga, 2 Atk., 251; Carroll vs. Paul, 16 Mo., 241; Wade vs. Emerson, 17 Mo., 269; Moore vs. Albright, 30 Mo., 250; May vs. Kloss, 44 Mo., 301; Thompson vs. Bennett, 34 Mo., 479; Kronenberger vs. Binz, 56 Mo., 122.)

Lackland, Martin & Lackland, for Respondent.

I. From the report of the referee under the third exception it appears that the executor invested the surplus funds of the estate in the purchase of real estate, in pursuance of a power in the will. He purchased five houses of nearly equal value for $25,500. Four of these houses he had conveyed to the heirs, the fifth one to himself. He took credit in his account for $25,000 as the cost of the four houses. This gave him the fifth house, worth $5,000, for about $500. The name given to this operation in equity, is “fraud.”

The fact that he subsequently pretended to equalize the value of his acquisition with the other houses, by charging the heirs for legal services they never heard of, does not relieve transaction of its original character. It is only the addition of another fraud on the heirs. An executor or other trustee has no right to charge his estate for professional services rendered by himself. (Burris vs. Paige, 1 Key's 87; Moore vs. Frowd, 34 Myl. & Cr., 45; In v. Sherwood 3 Beav., 338; Collins vs. Carey, 2 Beav., 128; Scatterwood vs. Harrison, Mosley, 128; Sheriff vs. Axa, 4 Russel, 33.) Besides, the heirs never could find out that he had rendered any services.

II. Under the fourth and fifth exceptions, the executor was held responsible for the rents. He held a fiduciary relation to the real estate. (Wagn. Stat., 84, § 2; Wagn. Stat., 89, §§ 49, 50; Rogers vs. Rogers, 1 Hopk., 515; Rogers vs. Rogers, 1 Paige, ch. 188.)

Where in fact he retains charge of the realty and collects the rents he is accountable as executor for them. (Campbell vs. Johns, 1 Sandf. Ch., 148; Stears vs. Stears, 1 Pick., 157.)

III. Under the seventh exception, the executor is chargeable for loss by reason of his unauthorized investment of the funds of the estate in the purchase of gold. (Quicks, Ex'r vs. Fisher, 1 Stock, N. J., 802; Worrel's Appeal, 23 Penn., 44; Ringgold vs. Ringgold, 1 Har. &...