Howell v. Anderson

• Decision Date: 03 December 1902
• Docket Number: 12,324
• Citation: 92 N.W. 760,66 Neb. 575
• Parties: SARAH M. HOWELL ET AL. v. PETER ANDERSON, ADMINISTRATOR. [*]
• Court: Nebraska Supreme Court

92 N.W. 760

66 Neb. 575

SARAH M. HOWELL ET AL. v. PETER ANDERSON, ADMINISTRATOR. ^[*]

No. 12,324

Supreme Court of Nebraska

December 3, 1902

ERROR from the district court for Saunders county. In the matter of the estate of Daniel Howell, deceased. From an order refusing to discharge Peter Anderson, administrator, he appealed to the district court, and from an order reversing the judgment Sarah M. Howell and others bring error. Tried below before GOOD, J. Affirmed.

AFFIRMED.

V. L Hawthorne, for plaintiffs in error.

Edwin E. Good and G. W. Simpson, contra.

BARNES C. OLDHAM and POUND, CC., concur.

OPINION

BARNES, C.

On the 28th day of March, 1899, one Daniel Howell, a resident of Saunders county, died intestate, and on the 1st day of June of the said year Peter Anderson, the defendant in error, was duly appointed administrator of his estate, gave his bond, was duly qualified and entered upon the performance of his duties as such administrator. It appears that at the time Howell died, Anderson owed him $ 700, which was evidenced by an interest-bearing note executed some time before that date. When Anderson took charge of the estate as administrator, he scheduled and listed his note as a debt due to the estate. After he had collected and disbursed to the several heirs nearly $ 4,000 belonging to the estate, a petition was filed by the widow of the deceased with the county judge of Saunders county, asking for his removal. Anderson appeared in answer to a citation based upon the petition, and was allowed to file his report. He thereupon tendered his resignation and asked leave to turn over to the court all the money and property in his hands belonging to the estate, together with his own note, and prayed for an order relieving him from his said trust. Anderson also filed an answer in which it appeared that at the time he was appointed administrator of the estate he was insolvent; that he remained in that condition during all of the time he acted as such administrator, and was still insolvent and entirely unable to pay the note in question, or any part thereof, at the time of his proffered settlement. He also asked that the fees which were due him for the performance of his duties as administrator, amounting to about $ 134, be applied upon his note, and that the court receive said note, with its unpaid balance, and credit him with it as an uncollectible debt due the estate. The fact of Anderson's insolvency was fully established, and is now conceded by all parties to this controversy. The county court held against Anderson on his petition for a discharge, and found that the note in question was cash in the hands of the administrator, and made his order accordingly. From this judgment or order Anderson appealed to the district court for Saunders county, where the matter was tried de novo, the order of the county court was reversed, a judgment was rendered in favor of Anderson, permitting him to turn over to his successor, or the county judge, his note, after crediting thereon the amount of his fees, as a part of the uncollectible debts due the estate, and an order was entered discharging him from his trust as administrator. From that judgment the widow and heirs of the deceased prosecute error to this court.

Plaintiffs contend that the district court erred in its findings and judgment in this: That when a debtor is appointed administrator of his creditor's estate, the debt owing by him to the deceased becomes assets in his hands as administrator; that the debt is considered paid, and he is chargeable with the amount thereof in the settlement of his accounts, without any regard to his financial condition before and during the time he acted as such administrator. They thus seek not only to charge Anderson with the amount of his debt to the estate, as for so much cash in his hands, but by obtaining an order to that effect, to fix beyond question the liability of his bondsmen to pay that amount to the estate. On the other hand, the defendant contends that where an insolvent debtor is appointed administrator of his creditor's estate and is at all times unable to pay his debts, by reason of his insolvency, his debt should be considered as uncollectible in his hands the same as though it were the debt of a third person, and that his bondsmen are not liable to the estate for the payment of such antecedent debt.

Upon this question the authorities are very much divided. In an early day the courts of Massachusetts laid down the rule contended for by the plaintiffs in error, and since then have steadily adhered to it. A few of the other states, including Ohio, New Hampshire and some of the Southern states, have adopted this view of the law, and it is contended by the plaintiffs that this court has followed this rule. In support of such contention they cite the cases of Jacobs v. Morrow, 21 Neb. 233, 31 N.W. 739, and Brown v. Jacobs, 24 Neb. 712, 40 N.W. 137. In Jacobs v. Morrow, the administrator de bonis non had been surety for his predecessor on his bond as administrator of an estate. His predecessor had collected about $ 12,000 in money, which he held in his hands when he was removed. The only question in that case was whether the administrator de bonis non should charge himself with the penalty of the bond. No question of the solvency or insolvency of the first administrator was involved in that case. Neither was it claimed that he was indebted to the estate at the time he was appointed. It was held that if he had collected and held in his hands money belonging to the estate while he was the administrator thereof and failed to pay it over to his successor, his bondsmen were certainly liable for it. In the case of Brown v. Jacobs, the facts were that B was appointed administrator of the estate of A, and C was the sole surety on his bond. B was removed from his trust, and his bondsman, C, was appointed as his successor. C was charged with the penalty of B's bond; C soon died intestate, and one D was appointed administrator of his estate, and one E was appointed a second administrator de bonis non of the estate of A. E filed his claim against the estate of C for the full amount of the penalty of the administrator's bond given by B and C, which claim was disallowed. An appeal to the district court resulted in the same judgment, and on error to this court the judgment of the district court was affirmed. It thus appears that neither of these cases are in point, and, never having passed upon the precise question involved herein, we must now determine which line of cases we will follow.

The Massachusetts rule, as we will call it for convenience, is based on a legal fiction, and the presumption that all men are solvent and able to pay their obligations. It was but a short cut to say that one who was an administrator could not sue himself, therefore he would be required to account to the estate for his individual debt as so much cash. It was an easy way of solving a difficult problem, and one which we fully approve of, where the fact of insolvency is not satisfactorily made to appear. In case the administrator was solvent at the time of his appointment, or any time during the administration of his office, and before his final settlement and discharge, he should be required to pay over in cash the amount of his antecedent debt. In such a case the rule contended for by plaintiff is a salutary one. It results in no hardship to anyone, and for that reason should be invoked and enforced. But it seems to us that this rule should have no application where it is made to appear that the administrator was wholly insolvent when appointed while acting, and at the time of settlement. The defendant in this case filed his report in response to the citation and brought his individual note into court, together with the other uncollectible claims due the estate, and turned them all over to the county judge. As the estate had not been fully administered it was the duty of the county judge to appoint an administrator de bonis non into whose hands the administrator's...