In re Estate of Glover & ShepleyGlover, Administrator

• Decision Date: 05 March 1895
• Citation: 29 S.W. 982,127 Mo. 153
• Parties: In Re Estate of Glover & Shepley; Glover, Administrator, Appellant
• Court: Missouri Supreme Court

29 S.W. 982

127 Mo. 153

In Re Estate of Glover & Shepley; Glover, Administrator, Appellant

Supreme Court of Missouri, Second Division

March 5, 1895

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

John M Glover for appellant.

(1) Item, $ 566.63, taxes paid C. H. Turner & Company, should be allowed, as there is no exception thereto. (2) Item, costs paid in Basset case, $ 194.75, should be allowed, as there is no exception thereto. (3) Item, fee paid Klein & Fisse should be allowed, as there is no exception thereto. (4) Item, fee paid G. H. Shields, $ 500, should be allowed. Evidence is that Madill authorized it and no contradiction thereto. (5) Item, $ 750, interest paid Berkley, should be allowed, as there is no exception thereto. (6) The accountant should not be charged with the fund in the state bank, $ 1,753.63. Schofield v. Rudd, 9 B. Mon. (Ky.) 284; Crowe v Budy, 5 Redfield (N. Y.), 1; Merrick's Estate, 8 Watts & Serg. 402. (7) Exception by respondent as to Chouteau and Turner notes is insufficient. Estate of Halleck, 49 Cal. 115; Conger v. Babcock, 87 Ind. 500. (8) The court erred in holding the appellant for the loss on these notes. United States v. Petit, 4 Cranch, 184; Haddex v. Haddex, 1 Litt. (Ky.) 201; Mead v. Dugan, 1 Tuck. (N. Y.) 388. (9) Accountant should have been allowed for his share of the estate in full. Scott v. Crews, 72 Mo. 269. (10) And for the assigned shares of J. A. and R. G. Glover. Van Horn v. Walker, 27 Mo. 78; Scott v. Crews, 72 Mo. 269; Ford v. O'Donnell, 40 Mo.App. 51. (11) The absolute deed is a mortgage only in equity, and the probate court had no equitable powers. Scudder v. Ames, 98 Mo. 521.

Edward S. Robert for respondent.

(1) No pleadings are necessary in the probate court. 1 Woerner's Amer. Law of Admin., sec. 149; Sublett v. Nelson, 38 Mo. 487; Watkins v. Donnelly, 88 Mo. 322. (2) Whatever comes to an administrator's hand by virtue of his office, from any source, he is chargeable with as administrator. Scudder v. Ames, 89 Mo. 496. (3) There is no such thing as the "market value" of a particular promissory note or chose in action; only things like wheat and an issue of bonds, that are dealt in, in a market, can have a "market value." Redding v. Godwin, 44 Minn. 355; Delegal v. Naylor, 7 Bing. 460. (4) The face value is the prima facie value of a note or chose in action. The burden was on appellant to show that the Turner and Choteau principal and interest notes were worth less. 1 Sedgwick on Dam. [8 Ed.], sec. 256, et seq.; O'Donohue v. City, 22 Mo. 393: Menkins v. City, 23 Mo. 252; Bredow v. M. S. I., 28 Mo. 181; State to use v. Berning, 74 Mo. 87; Smith v. Griffin, 32 Ga. 81; Harris v. Parker, 41 Ala. 604. (5) "It is well settled that a discharged executor or administrator is not to make distribution, but simply to pay over the fund to his successor." State ex rel. v. Heinrichs, 82 Mo. 542; Connelly's Appeal, 1 Grant's Cases, 368. (6) Where a contract is contained in several documents, they will be read as one, even though they do not refer to each other. McDonald v. Wolff, 40 Mo.App. 309; Cornell v. Todd, 2 Denio, 153; Hanford v. Rodgers, 11 Barb. 20; Hull v. Adams, 1 Hill (N. Y.), 603; Jackson v. McKenney, 3 Wend. 233; Stow v. Tifft, 15 Johns. 463; Gammon v. Freeman, 31 Me. 243; Clark v. Monroe, 14 Mass. 351; Gilliam v. Moore, 4 Leigh, 30; 2 Parsons on Contracts [7 Ed.], 503. (7) Where a mortgage is all written, whether on one or separate pieces of paper, it constitutes a mortgage in law as well as in equity. (8) Our probate courts are not clothed with equitable powers. Scudder v. Ames, 89 Mo. 521; Hammons v. Renfrow, 84 Mo. 341; Butler v. Lawson, 72 Mo. 227; Church v. Robberson, 71 Mo. 327; Church v. McElhinney, 61 Mo. 540; Pierce v. Calhoun, 59 Mo. 272; Titterington v. Hooker, 58 Mo. 594; Cones v. Ward, 47 Mo. 289; Dodson v. Scroggs, 47 Mo. 286; Coal Co. v. Slevin, 56 Mo.App. 110; Ford's Adm'r v. Talmage, 36 Mo.App. 65.

Burgess, J. Gantt, P. J., concurs; Sherwood, J., not sitting.

OPINION

Burgess, J.

The partnership of Glover and Shepley was composed of Samuel T. Glover and John R. Shepley. Glover died in 1884, and the surviving partner Shepley took charge of the estate. Shepley died in the same year and John M. Glover was appointed administrator de bonis non, of the partnership estate. George A. Madill was appointed administrator of Mr. Glover's personal estate, and Mary A. Shepley executrix of the estate of John R. Shepley. John M. Glover was removed as administrator, and John F. Shepley was appointed to succeed him. Shepley was subsequently removed and the Union Trust Company was appointed in his stead.

The controversy arose in the probate court of the city of St. Louis, from which court the cause was taken, by appeal, to the circuit court of that city, by which it was referred to John M. Holmes as referee to make an accounting, and, upon his report as such referee coming in, John M. Glover filed his exceptions thereto, assigning numerous causes why the same should be set aside which were overruled, the report confirmed, and judgment rendered in conformity therewith in favor of John F. Shepley administrator de bonis non for the sum of $ 38,913.80, including costs, from which judgment John M. Glover appealed.

Among the items for which defendant claims he should have been credited by the referee, and which were disallowed, were the following: First. To taxes paid C. H. Turner & Co., $ 566.63; second, costs paid in Basset case, $ 194.75; third, to Klein & Fisse, retainer fee, Rannels, $ 250; fourth, Klein & Fisse legal services, $ 750; fifth, interest paid Berkley, $ 750; sixth, item of $ 58,190.04, amount of Chouteau and Turner notes, upon which defendant insists that he only ought to have been charged with $ 53,920.88, amount realized by him on said notes, the difference being $ 4,269.16.

It is claimed by defendant that, as no exception was filed by his successor to the allowance of the first item, he should be allowed credit therefor.

This is a settlement between one administrator, who has been removed, and his successor, and is not a final settlement of his accounts as administrator.

Section 47, article 2, chapter 1, Revised Statutes, 1889, provides that, where an administrator has been removed, he "shall account for, pay and deliver to his successor * * * all money, real and personal property of every kind, and all rights, credits, deeds, evidences, of debt, and such papers of every kind of the deceased, at such time and in such manner as the court shall order, on final settlement with such administrator."

Section 48, article 2, chapter 1, Revised Statutes, 1889, provides, that after the revocation of the letters of an administrator, "the court having jurisdiction shall ascertain the amount of money, the quality and kind of real and personal property, and all the rights, deeds, evidences of debt and paper of every kind of the testator or intestate in the hands of such executor or administrator, or that came into his hands and remain unaccounted for at the time of his resignation or removal from office or revocation of his letters, and to enforce such order and judgment," etc.

Section 215, article 10, requires annual settlements upon certain terms, which section 232 makes applicable to final settlements. Among those terms are the following: "Every settlement shall be subscribed by the executor or administrator and verified by his affidavit."

The law does not require the successor of an administrator who has been removed to file written objections or exceptions to his accounts, but it is his duty to account for, pay and deliver to his successor all money, real and personal property of every kind and description remaining in his hands at the time of his removal, at such time and in such manner as the court shall order, and the burden is upon him to show that he has accounted for all moneys, and property that come into his hands as such administrator and that he is entitled to all credits claimed by him.

"When an executor or administrator resigns, he must account in the probate court with his successor, for his successor in office represents the heirs, devisees, creditors, and others, interested in the estate, and the money due from him to the estate, and the remaining assets in his hands must be turned over to the successor. Such is the plain meaning of sections 47 and 48, of the statute relating to executors and administrators." Emmons v. Gordon, 125 Mo. 636, 28 S.W. 863. Furthermore, it is the duty of the court having jurisdiction of such matters to see that the requirements of the law are strictly observed. There was no error committed in the ruling in regard to this item.

What has been said applies with equal force to the second item, "costs paid in Basset case." Moreover at the trial it was stipulated by Glover's counsel that this item had not been paid by him, and of course he was not entitled to credit therefor.

The next question is as to the third and fourth items amounting in the aggregate to $ 1,000, which defendant claims he paid to Klein & Fisse for legal services rendered the estate, and for which he should have been credited. But like the preceding items, no evidence of its payment was produced. Defendant's counsel also admitted at the trial that the item of $ 250, had not been paid. It would seem, therefore, that no error was committed in not allowing defendant credit for said items. With respect to the fifth item of $ 750, which defendant claims he paid as interest on a note of Samuel T. Glover and with which he should have been credited because there was no exception thereto, it appears in a supplemental account filed by defendant as follows: "I credit myself with $ 750, paid for interest on...