Hook v. Dyer

• Decision Date: 31 January 1871
• Parties: ZADOK HOOK, ADMINISTRATOR OF MARTHA T. DYER, Plaintiff in Error, v. THOMAS B. DYER, Defendant in Error.
• Court: Missouri Supreme Court

47 Mo. 214

ZADOK HOOK, ADMINISTRATOR OF MARTHA T. DYER, Plaintiff in Error,

v.THOMAS B. DYER, Defendant in Error.

Supreme Court of Missouri.

January Term, 1871.

Error to Fourth District Court.

Hayden & Boulware, for plaintiff in error, referred in argument to Cheely's Adm'r v. Wells, 33 Mo. 106; Naylor's Adm'r v. Moffatt, 29 Mo. 126-28; Bartlett, Adm'r of Garrett, v. Hyde, 3 Mo. 343; Abbott, Adm'r, v. Miller, Adm'r, 10 Mo. 141; Lecompt v. Sargent, 7 Mo. 351; Gambee, Adm'r de bonis non of Nash, v. Hamilton, Adm'r of O'Neil, 7 Mo. 467-471; Harney v. Dutcher, 15 Mo. 93, and cases cited; Lessing, Meyer & Co. v. Vertrees, 32 Mo. 431; Smith v. Denny, 37 Mo. 23; Sto. Eq. Jur., § 976; Pratt v. Vallin, 9 Pet. 405, and cases cited; Ruby et al. v. Barnett, 12 Mo. 3, and authorities cited; Papin v. Allen, 33 Mo. 260; 19 Mo. 241; id. 319; Thomas & Thomas v. Reef's Adm'r, 9 Mo. 373.

John A. Hockaday, for defendant in error.

I. The statute upon which this proceeding was instituted was never intended to apply to an action for the recovery of assets in the hands of an administrator. The fact that the same was held in a fiduciary capacity, and under the control and supervision of the County Court, excludes the idea of concealment or embezzlement--an administrator, as such, being incapable of the tortious acts contemplated by said statute.

II. As to defendant's right to the property, Martha T. Dyer had only a life interest in the property that went into her hands by virtue of the will of Samuel Dyer, and at her death it reverted back to the estate of Samuel Dyer, and is subject to his administrator for the purposes of distribution, in accordance with the will. (Ruby et al. v. Barrett, 12 Mo. 3; Swearingen et ux. v. Taylor et ux., 14 Mo. 391; Campbell v. Low, 9 Barb. 586; Pate v. Barrett and Wife, 2 Dana, 426; Lillard v. Robeson, 3 Little, 415; 11 B. Monr. 450; Boswell v. Anderson, Adm'r 3 Leigh, 353; 16 N. H. 459; 14 B. Monr. 167.)

III. At the death of Martha T. Dyer, the will of Samuel Dyer being unexecuted, his administrator, and not hers, was and is the proper party to execute it, and is likewise the proper custodian of his estate for that purpose. (Gen. Stat. 1865, p. 481, § 16; Toller on Exr's, 167; 1 Bouv. Law Dic. 73; Com. Dig. book 1, §§ 2, 9; 35 Mo. 323; Jenkins v. Freyer, 4 Paige, 47; Woodin v. Bagley, 13 Wend. 453; Beecher v. Crouse, 19 Wend. 306; 38 Penn. 225; 35 Miss. 108; 19 Ala. 747; 29 Miss. 126; Cole v. Wade, 16 Ves. 27; Hall v. Dewes, Jac. 189.)

IV. Hook, as administrator of the estate of Martha T. Dyer, does not, virtute officii, succeed her in the execution of the trust created by Samuel Dyer's will. (Gen. Stat. 1865, p. 480, § 5; Hawley v. Ross, 7 Paige, 103, and authorities cited; 19 Ala. 747; 2 Md. 119; Hill on Trust. 463, and note; Mansell v. Mansell, Wilm. 36; Peyton v. Bury, 2 P. Wms. 626; 1 Sugd. Powers, 148, 152; Blake v. Dexter, 12 Cush., Mass., 559.)

V. Martha T. Dyer acquired no beneficial interest in the estate of her deceased husband, Samuel Dyer. Having accepted of the provisions made for her under his will, she thereby subjected herself to the enjoyment of such interest only in his estate, and to such control over it, as the will gave her; and such interest and trust over said estate being limited to death or marriage, upon the happening of either event her interest and trust over the property ceased forever, and her personal representative, Hook, can not claim for her any other or greater right under said will than she could claim for herself. (Pemberton v. Pemberton, 29 Mo. 412; Brant v. Brant, 40 Mo. 266; Lord v. Lord, 23 Conn. 327; Herbert v. Wren et al., 7 Cranch, 370; Hawley v. James, 16 Wend. 61; Hamilton v. Beckwater, 2 Yeats, 389; 2 Sto. Eq. 440; 7 Cow. 287; 2 Dana, 343; 3 Russ. 192; 8 Gratt. 83; 4 Dess. 146.)

VI. The defendant Dyer was a competent witness. The statute so declares expressly. (Gen. Stat. 1865, p. 490, § 7.) Being sued as administrator of Samuel Dyer, he was also competent under the twenty-eighth section of the General Statutes, p. 491. (Hill on Trust. 428.)

BLISS, Judge, delivered the opinion of the court.

In 1834 Samuel Dyer, of Callaway county, died, and by his will gave all his property to his wife, the plaintiff's intestate, to manage and control for her benefit and that of their children, with power of sale, etc., and at her death or marriage to be divided among his children. She continued to manage the property for over thirty years and died, and Thomas B. Dyer, the defendant, as administrator de bonis non, with the will annexed, of the estate of his father, took possession of all her personal property, notes, and accounts, claiming that they belonged to that estate, to be distributed according to the will. The plaintiff, as administrator of Martha T. Dyer, demanded the property, proceeded against defendant by attachment, according to the provisions of sections 7-11, chapter 121, Gen. Stat. 1865 (Wagn. Stat. 85), and obtained judgment in the County Court. Upon appeal, judgment for defendant was rendered in the Circuit Court, which was affirmed in the District Court.

The property of Mrs. Dyer thus taken by defendant consisted principally of promissory notes, payable to her, amounting to over $40,000, together with all her household furniture, including beds and bedding, cooking utensils, crockery, etc. Defendant claims that this was held in trust by her, and upon her death that it became at once the property of Samuel Dyer's children, to be distributed by his administrator. The plaintiff, on the other hand, insists, first, that even if held in trust by her, it should go to her administrator for distribution; and, second, that this property, or a large portion of it, belonged to the deceased, and is liable for her debts.

That part of the will bearing upon this question is as follows: “It is my will and desire that my wife, Martha T. Dyer, in the event of my death, shall as soon thereafter as is convenient take into her possession all my goods, chattels, moneys, etc., both real and personal, and go on, without administering on my estate, to manage it in the same way that I should do myself if living, for the benefit of herself and all my children. I hereby give authority to my wife to sell any property which she may think proper to sell, and to purchase any which she may think proper to purchase for the benefit of my family, and to do everything in the arrangement of the estate which I am now authorized to do. * * * At my wife's death it is my will that my property be equally divided between all our children,” etc.

The testator was a merchant, and after his death Mrs. Dyer continued the store for many years, and in her own name bought and sold property, collected and loaned money, brought up and educated their children, and died in the possession of an estate, treating it as her own, worth more than double that which was left her. But she had contracted debts on behalf of one of the family, which defendant refuses to pay, and hence this litigation.

The will creates a trust. The property was to be held for the benefit of the trustee and the testator's children; hence she had an interest other than that of trustee. But the trust property does not necessarily go to the...