In re Estate of McElevey

• Decision Date: 27 August 1924
• Docket Number: 23106
• Citation: 266 S.W. 123,305 Mo. 244
• Parties: In re Estate of JAMES McELEVEY; MISSISSIPPI VALLEY TRUST COMPANY, Executor, v. JOHN A. BURKE, Administrator of Estate of MARGARET McELEVEY, and MATTIE CONNOR, Appellants
• Court: Missouri Supreme Court

266 S.W. 123

305 Mo. 244

In re Estate of JAMES McELEVEY; MISSISSIPPI VALLEY TRUST COMPANY, Executor, v. JOHN A. BURKE, Administrator of Estate of MARGARET McELEVEY, and MATTIE CONNOR, Appellants

No. 23106

Supreme Court of Missouri

August 27, 1924

Respondent's Motion for Rehearing and Motion to Modify Opinion Overruled August

Appeal from St. Louis City Circuit Court; Hon. Franklin Ferris, Judge.

Reversed and remanded.

J E. Carroll for appellants.

(1) When all demands against an estate are barred by lapse of time, and time for contesting the will has expired, if then executor has on hand assets more than sufficient to pay all debts of estate and all specific legacies, it becomes executor's duty to pay all debts and all specific legacies, to make final settlement, and distribute the balance to residuary legatees. In re Pounds Estate, 166 Mo. 419; Sec. 240, R. S. 1899; Clarke v. Sinks, 144 Mo. 448. (2) A provision in a will, "I authorize empower and direct my executor . . . to sell all real estate I may own at the time of my death," is unmistakable direction to sell, and the executor is obliged to make the conversion, and the proceeds thereafter are to be held and treated as personal property. Griffith v. Witten, 252 Mo. 627; Donaldson v. Allen, 182 Mo. 647; In re Estate of Branch, 123 Mo.App. 573. (3) Where there is an imperative direction to convert, a discretion given as to time of sale or mode or manner does not work an exception to the rule that in equity property will be treated as being already what the testator intended it to become. Woerner on Administration, sec. 342. If the power of sale under the terms of a will is vested in the executor itself as such, this power must be executed during the administration period. De Lashmutt v. Teetor, 261 Mo. 438; Donaldson v. Allen, 182 Mo. 647; In re Estate of Weston, 91 N.Y. 501; Woerner on Administration, sec. 538, p. 1185. (4) Until a claim has been allowed by the probate court or established by a judgment of a circuit court and classed by the probate court, an executor has no right to appropriate any of the assets of the estate to its payment. Langston v. Canterbury, 173 Mo. 122; Sec. 224, R. S. 1899. (5) An executor is not authorized, without permission of probate court, to make repairs or improvements and subject the estate or those beneficially interested such expenditures. Langston v. Canterbury, 173 Mo. 122; 18 Cyc. 309 (4); Clark v. Bettleheim, 144 Mo. 259.

D'Arcy & Neun for respondent.

(1) Where a will devises the real estate to heirs, a naked power of sale given to the executor will not create a conversion of the realty into personalty. Eneberg v. Carter, 98 Mo. 647; Williams v. Lobban, 206 Mo. 399; Compton v. McMahan, 19 Mo.App. 494. (2) Notwithstanding a positive direction in a will to sell land, there will be no conversion from realty into personalty where the executor is given discretion as to time or other elements of sale. Compton v. McMahan, 19 Mo.App. 494; Williams v. Lobban, 206 Mo. 409. (3) Even if there had been a technical conversion, under the will, nevertheless the heirs have at all times had the right to re-convert the personalty back into realty, selling the real estate as real estate, if they considered that retaining it was injurious to their interests. Williams v. Lobban, 206 Mo. 412; DeLashmutt v. Teetor, 261 Mo. 436; Godman v. Simmons, 113 Mo. 122. (4) Where the heirs seek to take advantage of the rents collected by an executor who has taken charge of real estate without an order of court, they cannot at the same time be allowed to refuse him credit for his expenditures. They must disaffirm both sides of the account or accept both. Langston v. Canterbury, 173 Mo. 122; Lewis v. Carson, 93 Mo. 589.

OPINION

Graves, J.

This cause originated in the Probate Court of St. Louis. James McElevey, by his last will, constituted the Mississippi Valley Trust Company the executor of his will. He died November 4, 1901, and the named executor took charge of his estate. The administration of the estate began shortly after his death, and continued to 1918 when a purported final settlement was filed. At this time some real estate was left undisposed of, and the executor had a claim of more than $ 2,000 against the estate. Exceptions were filed to this final settlement and the divers intervening annual settlements. These were overruled, and the final settlement approved over the exceptions filed. These exceptions covered not only items in the final settlement, but things involved in the several annual settlements. In fact, the exceptors took the position that the estate should have been closed within the two-year period then prescribed by law, and that under the terms of the will the executor had been remiss in not selling the real estate and closing up the estate within that time. There are divers allowances to the executor which are challenged, but these can best be grouped and disposed of in the course of the opinion. The real contest hinges upon the fifth paragraph of the will, which reads:

"Fifth. I authorize, empower and direct my executor hereinafter named, without obtaining order of court therefor, from time to time, to sell all real estate I may own at the time of my death, any sale or sales to be public or private and with or without notice, at the option of said executor, and may be for either all cash or part cash and part on time, deferred payments, if any, to be secured by first deed of trust on the property sold; and upon such sale my said executor shall make, execute, acknowledge, and deliver a deed or deed conveying the same, and to be for such prices and sums as to my executor may seem reasonable and of such form as my said executor may deem proper."

There was an exceedingly long administration of this estate, excuses for which are offered in the record. The duties of the executor are measured by this fifth section of the will, when taken and construed with the whole instrument. Matters of detail are left to the opinion. In addition to the above it should be said that decedent left no bodily heirs, but left a wife and an adopted child. By the 7th clause of the will the property was to go, one-half to the wife, one-fourth, to his heirs at law (this adopted child) and one-fourth to certain charities. Of these facts there is no question. The trial court sustained the contentions of the executor, defendant herein, and from such judgment this appeal results. The widow of deceased departed this life at a time before this appeal, and her interest, or those under her, are represented by Burke, Administrator C. T. A. This suffices for a general outline.

I. The assignments of error are numerous, and as they are all urged more or less we quote them as follows:

"1. The court erred in approving executor's final and annual settlements and overruling exceptor's first exception to same.

"(a) The court erred in failing to find and hold the executor should and could have made a final settlement of the estate of James McElevey two years after it took charge of said estate, to-wit: at the December Term, 1903, of the St. Louis Probate Court.

"(b) The court erred in failing to find and hold that under the will of James McElevey there was an imperative direction to said executor to convert into cash all the real estate owned by James McElevey at the time of his death.

"(c) The court erred in failing to find and hold that the executor failed to comply with the orders and directions in the will of James McElevey to pay over to the residuary legatees their respective residuary shares.

"(d) The court erred in failing to find and hold that the failure of the executor to make final settlement at the December Term, 1903, of the St. Louis Probate Court, and within thirty days thereafter to distribute to each of the residuary legatees her or its respective share was unreasonable under all the facts of the case.

"(e) The court erred in failing to find and hold that the failure of the executor to make final settlement and distribution was due to said executor's negligence.

"(f) The court erred in failing to find and hold that the executor should be charged with interest on all funds in its hands or that should have been in its hands when it was lawfully required to make final settlement until the time it did make final settlement.

"(g) The court erred in failing to find and hold that the reasonable net value of the real estate left by James McElevey was at the time of his death $ 34,000.

"2. The court erred in approving executor's final and annual settlements and overruling exceptor's second exception to same.

"(1) The court erred in failing to find and hold that the executor, without authority of the probate court first had and received, had expended large sums of money belonging to the estate of James McElevey and that said executor did improperly and wrongfully take credit for said wrongful expenditures in its annual and final settlements.

"(2) The court erred in failing to find and hold that the failure of the executor to make final settlement at the December Term, 1903, of the St. Louis Probate Court, was due to executor's negligence, and the taking credit by said executor for money expended by it after said term, for probate costs, taxes, interests, commissions, etc., was illegal and unwarranted."

There were some fifteen annual settlements in this case. The real estate was taken in charge by the executor without formal order of the probate court. This, as claimed by the counsel for executor, on the theory that the authority granted by the will authorized such course. Counsel for appellants contend that, if the executor had the right under the will, to take possession of the real estate, which they concede, then it was the duty of the executor to sell...