Hitchcock v. Mosher
| Citation | 17 S.W. 638,106 Mo. 578 |
| Parties | Hitchcock, Administrator, Appellant, v. Mosher et al |
| Decision Date | 09 November 1891 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Affirmed.
G. A Madill for appellant.
There can be no doubt that by the contracts in question Dorriss became the legal owner of the stock, subject to the claim of Mathews and Whitaker for so much of the purchase money as remained unpaid. Markham v. Jaude, 41 N.Y. 235; Baker v. Drake, 66 N.Y. 518. This title of ownership necessarily devolved on the administrator. The exceptants failed to distinguish between the legal title of the pledgor in the thing pledged and the residuum or surplus coming into the hands of an administrator after the foreclosure of a mortgage or execution of a trust over the amount secured thereby. As to definition of "assets" of a decedent, see Story's Eq. Jur., 531; De Valengin v Duffy, 14 Pet. 282; Thurston v. Lander, 40 Me. 197; Thurston v. Doane, 47 Me. 79.
Samuel N. Holliday and Joseph G. Holliday for respondents.
(1) Chattels pledged by a testator are assets in the hands of the executor for so much as they are worth beyond the sum paid on their redemption. 3 Williams on Executors [6 Am. Ed.] top pp. 1754, 1758; Glaholm v. Rowntree, 6 Ad. & El. 710; Vincent v. Sharp, 2 Stark. N. P. E. 507; United States v. Cutts, 1 Sumner, 133; Hawkins v. Lawse, 1 Leonard, 154; 2 Lomax on Executors & Adm'rs, 227; Schouler on Executors & Adm'rs, 203; Ball v. Brown, 1 Bailey's Eq. Rep. 374; Martin's Estate, Myrick's Prob. Rep. 163; Reynolds v. Canal Co., 30 Ark. 520; Succession of Powell, 14 La. Ann. 638; Succession of Fontelieu, 28 La. Ann. 638; Shaefer v. Cross, 13 La. Ann. 110; Baucus v. Stover, 31 S.Ct. (N. Y.) 109 24 Hun; R. S. Mo. 1889, sec. 68. (2) Neither the title to this stock, nor the possession, nor the right of possession was ever in Dorriss or his administrator. Bank v. Richards, 74 Mo. 77; S. C., 6 Mo.App. 454; Gaty v. Holliday, 8 Mo.App. 118. (3) The order of the probate court authorizing the administrator to sell this stock was not authorized by law, was illegal, and it did not have the effect claimed by the administrator; that is, it did not deliver the stock into the possession of the administrator, and it did not make assets of the estate of what was not assets before. Ice Co. v. Stafford, 3 Woods, 94; Bompart's Adm'r v. Lucas, 21 Mo. 598; Abernathy v. Moore, 83 Mo. 65; Smith v. Gilmore, 13 Mo.App. 155; Powers v. Blakey, 16 Mo. 437.
George P. Dorriss entered into five several contracts with Mathews & Whitaker of St. Louis, for eleven hundred shares first preferred stock of the St. Louis & San Francisco Railroad Company, one dated July 15, 1882, for two hundred shares at $ 19,225, being ninety-six and one-eighth net; one dated July 19, 1882, for two hundred shares at $ 19,025, being ninety-five and one-eighth net; one dated July 22, 1882, for one hundred shares at $ 9,562.50, being ninety-five and five-eighths net; one dated July 29, 1882, for five hundred shares for $ 50,062.50, being one hundred and one-eighth net; and one dated August 19, 1882, for one hundred shares at $ 9,762.50, being ninety-seven and one-eighth net.
These contracts are in the same form, the following being a copy of the first in date.
Three hundred shares of the stock were sold by Mathews & Whitaker for account of Dorriss during his lifetime, and there was to his credit on the books of Mathews & Whitaker on account of the stock embraced within said contracts about $ 30,000 at the time of his death. No stock was ever delivered by Mathews & Whitaker under said contracts to Dorriss, or to the appellant, Henry Hitchcock, the administrator with the will annexed of said Dorriss. The administrator inventoried the contracts, noting the fact that three hundred shares had been sold as aforesaid; afterwards presented a petition to the probate court praying for an order for the sale of the remaining eight hundred shares, and thereupon said court made an order authorizing and directing said administrator "to sell the said eight hundred shares of the first preferred stock of the St. Louis & San Francisco Railroad Company embraced in the said several contracts, or 'brokers' sold notes,' and out of the proceeds of such sale pay to said Mathews & Whitaker that portion of the purchase money for all of said stock together with interest which remains unpaid."
It appears that, when the order was made, the respondents, who are legatees of said Dorriss, appeared by their attorneys in the probate court, consented to and signed the said order, as did also the said Mathews & Whitaker. Thereafter the said eight hundred shares were sold by the said Mathews & Whitaker on change in New York under the directions of Mr. Hitchcock, the administrator, the sales realizing the sum of $ 77,050, of which amount $ 52,862.85 was applied by Mathews & Whitaker to the payment of their account for the balance of the purchase money and interest on said shares of stock under said contracts, and remainder was accounted for and paid to the administrator. The administrator, in his first annual settlement, charged himself with said sum of $ 77,050 and took credit for said sum of $ 52,862.85, and for $ 2,643.14, five-per-cent. commission thereon. On final settlement in the probate court, the respondents (among other exceptions which need not be noticed) excepted to said credit for commissions, their exception was overruled, and the credit of $ 2,643.14 allowed...
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