In re Cohn's Estate
| Decision Date | 15 June 1942 |
| Citation | 163 S.W.2d 802,237 Mo.App. 234 |
| Parties | In the Matter of the Estate of Jennie Cohn, Deceased, Neiman Abrams, Executor, In Re: Application of Executor for Allowance; Neiman Abrams, Executor of the Estate of Jennie Cohn, Deceased, Appellant, v. Issie Cohn, Jake Cohn, Mrs. Joseph Cohn, Administratrix of the Estate of Joseph Cohn, Deceased: Kansas City Title and Trust Company, Trustee for Benjamin Beneficiaries and Esther Cohn Sosland, Beneficiaries Under the Will of Jennie Cohn, Deceased, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court; Hon. Ben Terte, Judge.
Affirmed.
Maurice Weinberger for appellant.
(1) To deny executor a fee for acquiring the real estate and having the same available for distribution, would render Sec. 220 R. S. Mo. 1939, absurd and imperil its validity. Therefore the statute should not be so construed if another construction is reasonably possible. In re Shelton's Estate, 338 Mo. 1000, 93 S.W.2d 684; State ex rel Moseley v. Lee, 319 Mo. 976, 5 S.W.2d 83, 89; 16 C. J. S. Constitutional Law, sec. 98, p. 234; Sec. 1, 14th Am. U.S. Constitution; Art. 2, Sec. 30, Constitution of Missouri; Chippewa Indians of Minn. v. United States, 301 U.S. 359, 376, 57 S.Ct. 826, 833; State v. American Colony Ins. Co., 336 Mo. 406, 80 S.W.2d 876, 883; State v. Smith, 342 Mo. 365, 115 S.W.2d 816, 823. (2) By reason of Sec. 95, R. S. Mo. 1939, the executor is entitled to five per cent of the value of the real estate acquired at foreclosure sale. (3) Independently of Sec. 95, R. S. Mo. 1939, the executor is entitled to five per cent of the value of real estate acquired at foreclosure sale. 23 C. J. 1143; 21 American Jurisprudence, 483, 110 A. L. R. 1397; In re Valionis' Estate, 26 N.Y.S. (2d) 540; Raymer v. McClelland (N. C.), 5 S.E.2d 321, 324; In re McGlinn's Estate, 334 Pa. 411, 6 A.2d 265; Langfitt v. Langfitt (Ia.), 110 A. L. R. 1390, 27 N.W. 93; In re Ross, 68 N.Y.S. 373; Gilbreath v. Cosgrove, 193 Mo.App. 419, 185 S.W. 1181; In re Shelton's Estate, 338 Mo. 1000, 1010; 93 S.W.2d 684, 689.
Ringolsky & Jacobs, Wm. G. Boatright, Robert J. Coleman and Calvin & Kimbrell for respondents.
(1) Missouri statutes authorize an executor with probate court's approval to purchase real estate at foreclosure of mortgage note held by him, but require title to be vested directly in the heirs or devisees if there are no debts, and if there are debts the executor takes title as trustee, and after payment of debts must convey the property, without provision for any deduction, to the heirs or devisees. There is no statutory provision for commission, in such case, on real estate that ultimately vests in the heirs or devisees. Secs. 95 and 96, R. S. Mo. 1939; Stoff v. Schuetze, 293 Mo. 635, 240 S.W. 143. (2) Under Missouri statutes an executor is only entitled to compensation on personal property actually distributed and disbursed. The special statutory procedure followed here was not a distribution or disbursement of personal property, as to the realty not used to pay debts. Sec. 220, R. S. Mo. 1939; Matson v. Pearson, 121 Mo.App. 120, 97 S.W. 983; Vorderstrasse's Estate v. Haumueller, 266 S.W. 1019; In re Peters, 128 Mo.App. 666, 107 S.W. 406; In re Shelton's Estate, 338 Mo. 1000, 93 S.W.2d 684. (3) Inasmuch as, pursuant to statute, the real estate acquired by foreclosure was not needed for payment of debts, it vests in the heirs and devisees and no compensation was allowable on same to the executor. Executors and administrators have no interest in real estate vesting directly or ultimately in heirs or devisees. Seilert v. McAnally, 223 Mo. 505, 122 S.W. 1064; Potts v. Smith, 178 S.W. 881; In re Dildine's Estate, 293 Mo. 393, 239 S.W. 112; Wass v. Hammontree, 77 S.W.2d 1006; De Hatre v. Ruenpohl, 341 Mo. 749, 108 S.W.2d 357; O'Bannon's Estate v. O'Bannon, 142 Mo.App. 268, 126 S.W. 215. (4) This is a special statutory proceeding and is not governed by the principles applicable to wills containing directions to sell land and distribute the proceeds. Gilbreath v. Cosgrove, 193 Mo.App. 419, 185 S.W. 1181; Ganahl v. Ganahl, 323 Mo. 620, 19 S.W.2d 898; Lehmann v. Griffin, 224 Mo.App. 657, 31 S.W.2d 271; Hull v. McCracken, 327 Mo. 957, 39 S.W.2d 351; Eneberg v. Carter, 98 Mo. 647, 12 S.W. 522. (5) The real estate involved here was not sold by the executor for the payment of debts and therefore executor did not become entitled to any compensation on account thereof nor did he distribute any personalty. Authorities under Point (4). (6) Section 95 expressly directs the title to real estate purchased under foreclosure to be vested directly in the heirs or devisees when not needed for payment of debts and makes no provision for any deduction, charge or diminution. It, and section 96, plainly contemplate that real estate acquired on foreclosure and which is not needed or sold for payment of debts, and which ultimately passes to the heirs is, to the extent it so passes, exactly like such unheeded real estate owned by a deceased person at his death and which goes directly to heirs or devisees. No compensation is payable therefrom. It would be a violation of the statute to impose any charge for compensation on this real estate. Secs. 95, 96 and 220, R. S. Mo. 1939; In re Final Settlement of Peters, 128 Mo.App. 666, 107 S.W. 406. (7) Appellant's authorities distinguished.
Neiman Abrams, petitioner, sought an allowance of five per cent in the probate court, as executor's fees, on certain real estate acquired through foreclosure of a deed of trust belonging to the estate of Jennie Cohn, deceased. The probate court disallowed the claim and petitioner appealed to circuit court where the judgment was adverse to petitioner. He then prosecuted his appeal to this court.
The controversy was submitted in circuit court on an agreed statement of facts in which it was stipulated:
"The sole question at issue is whether or not said executor is entitled to an additional commission, upon an order of distribution being made, for receiving and distributing said real estate in his capacity as executor, and if so, how much."
The real estate referred to, and the circumstances attending same, are as follows: Said Jennie Cohn at the date of her death in 1932 owned a note for $ 37,500, secured by a first deed of trust on improved Kansas City, Missouri, real estate, which note came into appellant's possession as executor. After three semi-annual interest payments were met, the mortgagor defaulted and made no further interest payments. Acting under the provisions of section 95, Revised Statutes of Missouri, 1939, the executor, on March 29, 1935, obtained an order of the probate court approving foreclosure of the deed of trust and purchase of the real estate by the executor at his discretion, and directing the executor to request the trustee named in the deed of trust to sell the property in accordance with the terms of said deed of trust. This was done and the executor purchased the property at the mortgage trustee's foreclosure sale, bidding far less than the amount due on the note, no cash being paid in, however, on the bid. Prior to the foreclosure of the deed of trust there was not sufficient funds and personal property in said estate, exclusive of said note, to pay debts owing by said estate, and costs of administration. After the sale the executor collected rents from the property, such rents, together with sums realized from personalty left by testatrix, amounted to the sum of approximately $ 15,000, which has been disbursed or is ready for disbursement. The parties stipulated that he should receive a five per cent commission on same. The real estate itself is not now needed for payment of debts and the executor is about to distribute same in accordance with the will of Jennie Cohn. Petitioner insists that he is entitled to a commission on the value of this real estate, in addition to the commission on the rents received therefrom and on the cash realized from personalty received and disbursed, or to be disbursed, by him.
The sole question, therefore, as presented by the stipulation and the record, is whether an executor who has purchased real estate under section 95, Revised Statutes of Missouri, 1939, and has received money from the rents of the real estate or otherwise sufficient to pay all debts, so that the real estate is not needed to pay debts, and may not and will not be sold, is entitled to a commission on the value of such real estate.
A judicial determination of the question here posed depends upon our construction of sections 95, 96 and 220, Revised Statutes Missouri, 1939.
Section 95, supra, provides as follows:
"Whenever any note, bond, account or other indebtedness belonging to the estate of any lunatic, or person of unsound mind, minor or deceased person, shall be secured by any mortgage, deed of trust, vendor's lien or other lien on any real estate, and the same remains due and unpaid, the administrator, executor, guardian or curator of such estate may, under the order of the probate court having jurisdiction thereof, purchase such real estate at the sale made under such mortgage, deed of trust or other lien aforesaid, at a price not exceeding the amount due such estate on such note, bond, account or other indebtedness, and receive a deed therefor, and upon the execution of such deed the administrator or executor shall be seized of the premises so purchased by him in trust for the benefit of the same persons, whether creditors, next of kin or others, who would be entitled to the money if the premises had been redeemed; but in case the said probate court is satisfied that the widow has received the articles or money as is provided for in sections 107, 108 an...
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