Harney v. Donohoe

• Decision Date: 20 December 1888
• Citation: 10 S.W. 191,97 Mo. 141
• Parties: Harney et al., Appellants, v. Donohoe et al
• Court: Missouri Supreme Court

10 S.W. 191

97 Mo. 141

Harney et al., Appellants, v. Donohoe et al

Supreme Court of Missouri

December 20, 1888

Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.

Affirmed.

J. M Holmes for appellants.

(1) Upon the death of Francis Donohoe his brother Terence became his heir, so far as his real estate was concerned, to the exclusion of his sister Margaret Reilly and his brother John Donohoe, ancestor of plaintiff, as they were aliens. (2) The sister Margaret and the brother John were, however, entitled to a distributive share of the personal estate of Francis. Greenia v. Greenia, 14 Mo. 526. (3) When Terence Donohoe took out letters of administration upon the estate of Francis, he became a trustee: first, for the creditors of Francis; second, as to the surplus remaining after paying the debts, for his brother John, his sister Margaret, and himself in equal proportions. As administrator he had no concern with the real estate of Francis, nor had he any title thereto. (4) The question for consideration is what was the effect of taking a deed, pending administration, to himself as administrator of Francis. (5) The conveyance upon its face created a trust. The words, "administrator of Francis Donohoe, deceased," cannot be treated as descriptio personae. Hagon's Heirs v. Welcker, 14 Mo. 177; Little v. Lesia, 5 Mich. 119; Rood v. Winslow, 2 Doug. (Mich.) 68; Clausen v. LeFranz, 1 Clarke (Ia.) 271; Harper v. Archer, 28 Miss. 212; Seaman v. Cook, 14 Ill. 501; Saberton v. Skeels, 1 Russ. & My. 587; Crawford's Trusts, 2 Drew, 230; Allen v. Thorp, 7 Beav. 72; Howell v. Gayler, 5 Beav. 157; Mackenzie v. McKenzie, 3 Mac. & G. 559; Long v. Watkinson, 17 Beav. 471; Lang v. Blackall, 3 Vesey, 486; Ripley v. Waterworth, 7 Vesey, 438; Wellman v. Bowring, 1 Sim. & Stu. 24; Wellman v. Bowring, 2 Russ. C. C. 374; Wellman v. Bowring, 3 Sim. 328; Rogers v. Paterson, 4 Paige (N. Y.) 409; Westfaling v. Westfaling, 3 Atk. 466.

J. L. Torrey for respondents.

Black J. Ray, J., absent.

OPINION

Black, J.

This is a suit to compel the defendants to convey to two of the plaintiffs, one-half of a lot, 33 by 85 feet, in the city of St. Louis. The agreed statement discloses the following facts: Francis Donohoe purchased the lot from O'Fallon, in 1839, and received a bond for a conveyance, conditioned upon the payment of four hundred and fifty dollars. Francis Donohoe died in September, 1842; at that time he had paid all the purchase price except the sum of ten dollars. Terence Donohoe, brother of the deceased, took out letters of administration in September, 1842, and, among other property, inventoried this title-bond. He made final settlement of the estate and was duly discharged in September, 1847.

On January 1, 1844, Terence Donohoe, having personally completed the payment of the sum of four hundred and fifty dollars, took a deed from John O'Fallon to the lot in controversy to "Terence Donohoe, administrator of Francis Donohoe, deceased;" from and after said conveyance he personally held open and notorious possession of, and used and occupied said land in controversy for his own use, and improved it until the year 1878, when, without consideration, he conveyed the same to his son, John F. Donohoe, and his daughter, Margaret Kortzendorffer, defendants, in undivided equal portions. Francis Donohoe died, leaving as his nearest of kin his brother Terence, who became administrator, and who then resided in this state. He also left a sister, Margaret Reilley, and a brother, John Donohoe, both of whom resided in Ireland. John died there in 1867, leaving four children, Mary Harney and Ann Donohoe, the plaintiffs in this suit. They came to this state in 1856 and 1863. John Donohoe also left two boys, who have not been heard from for seven years and more. Neither Margaret Reilley nor her children, if any she had, ever left Ireland.

Under the statutes of this state, as they existed from 1835 to 1845, a resident alien could acquire real estate here by descent or purchase. R. S., 1835, p. 66; R. S., 1845, p. 113. These statutes did not apply to aliens non-residents of the United States. Wacker v. Wacker, 26 Mo. 426. Terence Donohoe therefore inherited the real estate belonging to Francis, at the time of the death of Francis. The other brother and sister of deceased, being aliens and residing in Ireland, could take no interest whatever in the real estate. As to that Terence was the sole heir. Nothing in the statute or the common law, however, prevented the non-resident aliens from taking as distributees of the personal property. Greenia v. Greenia, 14 Mo. 526. The claim of the plaintiffs then is, that when Terence took the deed from O'Fallon to himself as administrator, he held the property for the distributees and not for the heirs.

An executor or administrator is a trustee, and when he purchases property with funds of the estate, he holds the property...