In re Glover

• Decision Date: 05 March 1895
• Citation: 127 Mo. 153,29 S.W. 982
• Parties: In re GLOVER.
• Court: Missouri Supreme Court

29 S.W. 982

127 Mo. 153

In re GLOVER.

Supreme Court of Missouri, Division No. 2.

March 5, 1895.

ADMINISTRATOR OF PARTNERSHIP ESTATE — ACCOUNTING TO SUCCESSOR — BURDEN OF PROOF.

1. Under Rev. St. 1889, § 47, requiring an administrator who has been removed to "account for, pay, and deliver to his successor * * * all moneys, real and personal property" which came into his hands in that capacity, the burden is on him to show that he has made a full accounting, and he is not entitled to credit for certain items of account solely on the ground that his successor filed no exception to their allowance.

2. The filing of exceptions by an administrator d. b. n. to the accounts of his predecessor, who has resigned, or has been removed, is not required by statute.

3. Where an administrator, authorized by the probate court to sell notes for their face value with accrued interest, sold them for less, and the makers were solvent, and subsequently paid the face value with interest, the administrator should be charged with the full amount of the principal and the face value of the interest notes.

4. An administrator of a partnership estate, who, as such, receives money deposited by the firm in trust for another, is estopped to deny that he received it in his representative capacity, and to assert that he is accountable only to the cestui que trust.

5. The probate courts of Missouri have no equitable jurisdiction.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by John F. Shepley against John M. Glover, as successor to defendant as administrator de bonis non, for an accounting. From a judgment for plaintiff, defendant appeals. Affirmed.

John M. Glover, for appellant. E. S. Robert, for respondent.

BURGESS, J.

The partnership of Glover & 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: (1) To taxes paid C. H. Turner & Co., $566.63; (2) cost paid Basset Case, $194.75; (3) to Klein & Fisse, retainer fee Rannels, $250; (4) Klein & Fisse, legal services, $750; (5) interest paid Berkley, $750; (6) 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, Rev. St. 1889, provides that, where an administrator has been removed, he "shall account for, pay and deliver to his successor * * * all moneys, 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, Id., 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 papers 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, Id., 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 and 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 the 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 (Mo. Sup.) 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, "Cost 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...