In re Davis

• Decision Date: 31 May 1876
• Citation: 62 Mo. 450
• Parties: IN THE MATTER OF JAMES L. DAVIS, Executor of the Estate of CHARLES B. WILLIAMS, deceased, Appellant.
• Court: Missouri Supreme Court

62 Mo. 450

IN THE MATTER OF JAMES L. DAVIS, Executor of the Estate of CHARLES B. WILLIAMS, deceased, Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Daviess Circuit Court.

Rush & Davis, for Appellants.

I. The court should have ordered the distribution of the estate in 1871, at the very date from which it now charges interest on the executor by way of damages. The executor was not in default till the court ordered distribution. (Wagn. Stat., 111, § 3.)

II. But even if an order of distribution had been made, no right to impose eight per cent. interest, as damages for failure to comply therewith, would have followed. (Wagn. Stat., 112, § 10; Id., 109, 110, §§ 13, 14, 15.)

III. It is nowhere imposed by express statute as a duty on the part of the executors or administrators to invest the funds of the estate for the benefit of the estate.

The first and primary duty of the executor is to settle and wind up the affairs of an estate in a prescribed manner, and not to make favorable investments of the funds of the estate, and during this time the growth and increase of the estate are secondary considerations.

But if there is any duty in this direction at all, it ought to be laid with as much force and urgency upon the courts as upon the executor or administrator; the latter being the mere creature of the former. And yet this duty is only put upon the court as a discretionary matter. (Wagn. Stat., 90, § 57.)

IV. The right to charge the executor or administrator with interest proceeds upon the principle of profits to the executor or administrator, and not of making them account therefor by way of a penalty, and there is no finding in this case that any profit was made by the executor by such use. The term used by the statute is, that the court shall exercise an “equitable control” in this matter, not an arbitrary will in the imposing of penalties.

The statute says, that if you do use it, the court shall exercise any ““equitable control” thereover (Wagn. Stat., 90, §§ 54, 55), and that the court did not exercise nor assume to exercise such equitable control thereover is plainly evidenced by the decree itself, in which the court says, that eight per cent. interest is imposed by way of damages for default in failing to distribute the estate.

V. If the estate was entitled to any interest at all, it was entitled to only six per cent. In this State, when no rate of interest is agreed upon, six per cent. is the legal rate of interest.

M. A. Low, for Respondent.

I. All interest received by executors on debts due to the deceased is assets in their hands. (Wagn. Stat., 90, § 54.)

II. The court should have charged the executor with ten per cent. interest on the balance which he retained and used in his individual business after he ought to have made final settlement, and asked for an order of distribution. Such rate of interest was easily procurable by him. (Wagn. Stat., 90, §§ 4, 5.) Such a course on the part of an executor or administrator should not be made pleasant and profitable if the courts have the power to prevent it. (Hook vs. Payne, 14 Wall., 252; Schuffelin vs. Stewart, 1 John. Ch., 620; Trevis vs. Townshend, 1 Bro., 384; Raphael vs. Boehm, 11 Ves., 92.)

WAGNER, Judge, delivered the opinion of the court.

The appeal in this case is from the finding and judgment of the probate court. The evidence is not embodied in the record, but the finding of the court, on which the judgment was based, is set out in detail. The circuit court confirmed the proceedings of the probate court, and the executor appealed. It appears, that on a final settlement of appellant's accounts, as executor of the estate of C. B. Williams, deceased, the court opened up the former annual settlements of the executor, and charged him with various items for which he had failed to account. The court also charged him with interest. The executor took out his letters in October, 1868. The annual settlements were made in 1869, 1870, 1871 and 1873. Final settlement was filed in 1874. The court found, that on the settlement in 1871, there was in the hands of the executor, belonging to the estate, $1,556.05, and that prior to that settlement all debts proved up against the estate had been paid, and that the only credits asked by the executor after that time were for taxes and expenses of administration; that prior to, and after the settlement of 1871, the executor had mingled the money belonging to the estate with his own money;...