Hawkins v. Cunningham

• Citation: 67 Mo. 415
• Parties: HAWKINS v. CUNNINGHAM. Appellant.
• Decision Date: 30 April 1878
• Court: United States State Supreme Court of Missouri

67 Mo. 415

HAWKINS

v.CUNNINGHAM. Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Howard CircuitCourt.--HON. G. H. BURCKHARTT, Judge.

S. C. Majors, Jr., and R. C. Clark for appellant.

Under the statute, (1 Wag. Stat., p. 72, § 13,) an administrator pendente lite is required to take charge of the property and administer the same according to law. The administration law makes no distinction between general and special adminisfrators, and fixes their compensation at five per cent., which cannot be altered by the court. 1 Wag. Stat., p. 108, § 9; Mc Whorter v. Benson, 1 Hopk. 28; Vanderheyden v. Vanderheyden, 2 Paige 287. The compensation allowed by the court having probate jurisdiction, is final, and not subject to review by a superior court, except for fraud or mistake. Ex parte Houghton, 3 Dev. 441; Cherry v. Jarratt, 25 Miss. 221; Walton v. Avery, 2 Dev. & Bat. 405; Jones v. Brinker, 20 Mo. 87; Burt v. Rynex, 48 Mo. 309.

Thos. Shackelford, Jas. A. Clark and Herndon & Herndon for respondent.

The five per cent. commission is given on the amounts disbursed, and not, as claimed in this case, on the uncollected assets. The administrator pendente lite occupies the position of a receiver, who acts under the orders and direction of the court to preserve the estate. Lamb v. Helm, 56 Mo. 433.

HENRY, J.

In the year 1874, or 1875, Wesley Hieronymus died in Howard county, having made a last will and testament by which John W. Hawkins was appointed his executor. The will was admitted to probate by the county court of said county, but certain of his heirs, filed their petition in the circuit court of said county, contesting the validity of the will, and W. F. Cunningham was appointed administrator pending the contest. On the 4th of October, 1875, the suit between the heirs and executor having been dismissed in pursuance of a compromise agreement, the county court revoked Cunningham's letters of administration, and made an order, requiring him to deliver to said Hawkins all the assets, &c., of the estate, and make a final settlement of his administration at the next term of the court. At the November term of said court, 1875, Cunningham made his final settlement, and was allowed by the court, as compensation for his services, $2,586.99, and $300 for attorney's fees. From this judgment, the executor appealed to the circuit court, which allowed the administrator but $696.75, and $300 for attorney's fees, and from the judgment of the circuit court, Cunningham has duly prosecuted his appeal to this court. The personal property of the estate, as shown by Cunningham's settlement, amounted to $54,680.46. The amount of the notes and interest at the date of the inventory was $51,438.12, and the $49,708.40 received by the executor from Cunningham, except about $5,000, were the original notes belonging to the estate.

1. COMPENSATION OF ADMINISTRATOR PENDENTE LITE.

Cunningham claims that he was entitled, under Sec. 9, Art. 5, Wag. Stat., p. 108, to five per cent. on the personal estate as a compensation for his services. Sec. 13, p. 72, Wag. Stat., provides that: “If the validity of a will be contested, or the executor be a minor or absent from the State, letters of administration shall be granted during the time of such contest, minority or absence, to some other person, who shall take charge of the property and administer the same according to law, under the direction of the court, and account for and pay and deliver all the money and property of the estate to the executor or regular administrator when qualified to act.”

This section distinguishes betwixt an administrator appointed pending the contest of a will and the executor appointed by the will or an administrator with the will annexed. The latter is termed the regular administrator. The administrator appointed while the suit is pending is only a temporary or special administrator. In the case of Lamb v. Helm, Admx., 56 Mo. 433, this court said: “Such special administrators occupy more nearly the position of a receiver who acts under the direction of the court, than they do the position of a general administrator.” The 9th section, page 108, Wag. Stat., allowing to executors and administrators five per cent. on personal estate, as compensation for their services, construed with reference to section 13, does not embrace administrators appointed pending a suit to contest the validity of a will. Any other construction would lead to consequences which could not be tolerated. If it is to receive the broad construction contended for by the appellant, an administrator might qualify, make his inventory and appraisement, then performing no other service, resign and charge full commission; one appointed in his stead might qualify, receive the assets from his predecessor, and having performed no other duty, resign and receive full commission, and this might be repeated by successive administrators until nothing...