In re Bartels' Estate

• Decision Date: 17 April 1945
• Citation: 187 S.W.2d 348,238 Mo.App. 715
• Parties: In the Matter of the Estate of Teresa E. Bartels, Deceased: Wacker-Helderle Undertaking & Livery Company, a Corporation, and St. John's Hospital, a Corporation, Respondents, v. William B. Kinealy, Executor of the Estate of Teresa E. Bartels, Deceased, Appellant
• Court: Missouri Court of Appeals

187 S.W.2d 348

238 Mo.App. 715

In the Matter of the Estate of Teresa E. Bartels, Deceased: Wacker-Helderle Undertaking & Livery Company, a Corporation, and St. John's Hospital, a Corporation, Respondents, v. William B. Kinealy, Executor of the Estate of Teresa E. Bartels, Deceased, Appellant

Court of Appeals of Missouri, St. Louis District

April 17, 1945

Motion of Respondent Wacker-Helderle Undertaking & Livery Company for a Rehearing Overruled; Opinion Filed May 15, 1945.

Appeal from Circuit Court of the City of St. Louis; Hon. Edward M Ruddy, Judge.

Reversed and remanded (with directions).

Kinealy & Kinealy for appellant.

(1) The real estate descends directly to the heir or devisee upon the death of the owner. Thorp v. Miller, 137 Mo. 231 239; Cleveland Co-operative Stove Co. v. Baldwin, 121 Mo.App. 397; Seibert v. McAnally, 223 Mo. 505 122 S.W. 1064. (2) The executor has no authority over deceased's real estate or its rents until he is ordered by the probate court to take charge of it for the payment of debts or for sale. Field v. French Estate, 106 S.W.2d 925; Anderson v. Taylor, 227 S.W. 84; 2 Woerner Am. Law of Administration (3 Ed.), pp. 1124-1125. (3) The devisee immediately upon the death is entitled to the possession of the real estate and its rents and profits, until the administrator is ordered by the probate court to take charge. Bucker v. Bucker, 86 Ill. 377, 382; R. S. Mo. 1939, sec. 129; In the Matter of Estate of John Dildine, 293 Mo. 393, 398, 289 S.W. 102; Newcomb v. Steffins (Mass.), 9 Mic. 540; Bucner v. Bucher, 86 Ill. 377, 382. (4) In the absence of an order for the administrator to take charge of the real estate, the presumption will be that the rents are collected by the devisee, where the executor devisee is the same person. Russell v. Wheeler, 129 Mich. 41, 47; In re Stock, 31 Pitts. Leg. J., Pa. 34.

Henry Ebenhoh for respondent, Wacker-Helderle Undertaking and Livery Company.

(1) The practice is for interested persons to file written exceptions to objectionable items in probate court, notwithstanding that specific statutory sanction for such practice may not exist. In re Mills' Estate, 162 S.W.2d 807. (2) An executor occupies a position of trust with respect to those interested in the estate and is a trustee in the broadest sense. Rawlings v. Rawlings, 58 S.W.2d 735; In re Mills' Estate, 162 S.W.2d 807. The administrator or executor represents not only the heirs and legatees, but also the law and creditors. Odom v. Langston, 173 S.W.2d 826. He must protect interests of all parties interested in estate. Gooldy v. Lavender, 16 S.W.2d 681. (3) Administrator is liable for such rents as he collects, though he has obtained no order to take possession. Lewis v. Carson, 93 Mo. 587, 3 S.W. 483.

OPINION

Bennick, C.

This proceeding originated in the Probate Court of the City of St. Louis upon the petition of two creditors of the estate of Teresa E. Bartels, deceased, to require the executor of the will of the deceased to account for and charge himself with certain rents which had been collected from the real estate of the deceased.

The controversy between the parties arises solely from the fact that the executor, William B. Kinealy, was also the residuary devisee in the will.

Upon the death of the deceased, letters testamentary were issued to Kinealy, who filed an inventory and appraisement on September 28, 1940, showing the only asset of the estate to be a piece of real property at 1019-23 Dolman Street in the City of St. Louis, which was appraised at $ 3500, but was encumbered by deeds of trust securing certain notes which had been executed by the deceased.

The creditors in question are Wacker-Helderle Undertaking & Livery Company, which had a claim of $ 259.32 for the funeral expenses of the deceased, and St. John's Hospital, which had a claim of $ 1383.85 for the deceased's hospital care during the period of her last illness. The former's claim was allowed on August 15, 1940, and classified in the first class, while the latter's claim was allowed on December 23, 1940, and classified in the second class. Kinealy admittedly had knowledge of both of such claims at the time of the issuance of his letters, and later waived notice of their presentation for allowance.

There being no personal estate, Kinealy, on January 6, 1941, presented a petition to the probate court for authority to sell the real estate for the payment of debts. An order of sale was thereupon entered; and on March 20, 1941, Kinealy filed his report of sale, upon the approval of which a deed was executed and delivered to the purchaser. The estate actually profited but little, however, since after the payment of the notes secured by the deeds of trust, accrued interest, taxes in arrears, and other liens, the net amount realized from the sale was only $ 166.28.

There had admittedly been no order upon Kinealy as executor to take charge of and rent the real estate for the payment of debts, and consequently, when he filed his first or semiannual settlement on March 25, 1941, he included no item of the collection of rents. As a matter of fact, however, he had been continuously collecting rents in what he claimed was his capacity as residuary devisee, and in the period between the death of the deceased and the sale of the property under order of the court, had made collections in the aggregate amount of $ 357.12. It is significant to note in this connection that there had never been any pretense that the rents were being collected in his official capacity, but instead the checks had been invariably made payable to him individually, and had then been deposited in his personal checking account.

The semiannual settlement was approved by the court; and on June 27, 1941, the two creditors of the estate, Wacker-Helderle Undertaking & Livery Company and St. John's Hospital, instituted the present proceeding by the filing of their petition in the probate court asking the entry of an order directing Kinealy as executor to account for the rents as assets of the estate.

In their petition the creditors first called attention to the fact that Kinealy was both executor and residuary devisee; that according to his semiannual settlement, there were insufficient funds on hand to pay the claims which had been allowed against the estate; and that he had collected rents for the period between the death of the deceased and the sale of the property under order of the court, but had neglected and omitted to account for the same in his settlement theretofore filed.

Upon the basis of these facts (all of which were of course admittedly true), the creditors then alleged that Kinealy had not only had knowledge of the existence and allowance of the irrespective claims while he was collecting rents from the real estate, but had also known that in the absence of a personal estate, payment of the claims could only be realized out of the real estate or out of the rents collected therefrom; and that by reason of such facts, and particularly by reason of the fact that he was both executor and residuary devisee, it had been his duty to collect the rents for the benefit of the estate, and he was to be regarded as having collected the same in his capacity of executor rather than residuary devisee, and was not to be excused from accounting for the same because of his failure and neglect to have applied to the court for an order to take charge of the real estate.

After a hearing on the petition, the probate court sustained the same and directed Kinealy, as executor, to account for the rents he had collected in the amount of $ 357.12. Following the entry of such order, Kinealy appealed to the circuit court, which heard the matter anew, and likewise entered judgment that he charge himself with the rents. A motion for a new trial was thereupon filed; and this being subsequently overruled, Kinealy's appeal to this court has followed in the usual course.

While the judgment we are reviewing is that of the circuit court the jurisdiction of that court was purely derivative, so that in the final analysis the question for our determination is whether, on the petition filed, and in the light of the admitted...