In re Purl's Estate

• Decision Date: 01 February 1910
• Citation: 147 Mo. App. 105,125 S.W. 849
• Parties: In re PURL'S ESTATE. GUPTON v. CARR.
• Court: Missouri Court of Appeals

125 S.W. 849

147 Mo. App. 105

In re PURL'S ESTATE GUPTON v. CARR.

St. Louis Court of Appeals. Missouri.

February 1, 1910.

1. APPEAL AND ERROR (§ 169) — REVIEW — ISSUES NOT RAISED BELOW.

The Court of Appeals in cases involving the allowance of an executor's claim for compensation will only determine such issues as were before the trial courts.

2. BANKS AND BANKING (§ 22) — PRIVATE BANK — "QUASI CORPORATION."

A private bank carried on by an individual is not a quasi corporation under the banking law.

3. BANKS AND BANKING (§ 17) — PRIVATE BANKS — DEATH OF BANKER.

Under Rev. St. 1899, § 1299, as amended by Act March 24, 1903 (Laws 1903, p. 117 [Ann. St. 1906, p. 1057]), and sections 1301, 1304, and 1305, relating to banks, including private banks, and among other things providing for the winding up of the affairs of a bank under certain conditions, where an individual banker dies solvent and sole owner of the assets of the bank, the Secretary of State may not step in and by a receiver undertake the administration of the banker's affairs; the probate court having sole jurisdiction.

4. BANKS AND BANKING (§ 119) — PRIVATE BANKS — DEPOSITORS — STATUS.

The depositors in a private bank, the sole owner of whose assets died, were general creditors of the bank, and had no special lien on the funds thereof.

5. EXECUTORS AND ADMINISTRATORS (§ 43)— ASSETS — DEPOSITS IN BANK.

The deposit funds of a private bank went, on the death of the banker, who was sole owner of the assets, into his estate, the executor being the only person entitled to take possession of such funds.

6. EXECUTORS AND ADMINISTRATORS (§ 495) — COMPENSATION.

Rev. St. 1899, § 223 (Ann. St. 1906, p. 415), provides that in all settlements of executors or administrators the court shall allow all disbursements made by order of the court and as compensation a commission of 5 per cent. on personal property and on money arising from the sale of real estate. Section 224 provides that the executor or administrator shall show that every claim for which disbursements have been made has been allowed by the court. The sole legatees and distributees under the will of a private banker authorized the executor to pay the claims of all depositors, which he did, his first settlement, showing such payment, being approved by the probate court, and admitted by the distributees to be correct. Held that, there being no statutory provision confining the commissions to the amount of the estate disbursed on allowed accounts, the executor was entitled to commissions on the amount disbursed, though the claims of the depositors were not presented to the probate court for allowance, the distributees being estopped to claim that the disbursements were unlawful.

Appeal from Circuit Court, Montgomery County; Jas. D. Barnett, Judge.

In the matter of the estate of Taylor Purl, deceased. From a judgment sustaining exceptions presented by Inez Carr to the final report of W. L. Gupton, executor, and allowing him a certain commission only, the latter appeals. Reversed and remanded.

Taylor Purl carried on the business of a private banker, having complied with the requirements of section 1299, of the Revised Statutes of 1899, as amended by Act March 24, 1903 (Laws 1903, p. 117 [Ann. St. 1906, § 1299]), by filing with the Secretary of State the certificate required by that section. The capital invested was stated to be $5,000, and the banking business was to be carried on under the name of the Exchange Bank of Jonesburg, Mo. He was the sole owner of the bank, and remained so until the day of his death, which latter event occurred about December 28, 1905. Mr. Purl made and executed a will, which was duly admitted to probate by the probate court of Montgomery county, December 29, 1905. By this will he directed that the executor named should at his death take charge and control of all of his property and out of the proceeds pay all his just debts, including funeral and cemetery expenses. By the second clause he bequeathed and devised unto his only daughter, Inez Purl Carr, all of his property remaining after the payment of debts, Inez Purl Carr being his only heir and, as noted, sole legatee. The will appointed William L. Gupton executor. A codicil added to the will December 7, 1901, and duly probated with it, recited that as the testator had sufficient property other than his private banking institution, to pay any and all of his debts, it was his will that the business of the bank be continued after his death under such management as his executor might select and until such time as the bank might be sold or otherwise disposed of to the best interests of the depositors therein, the executor to act at all times under the direction of the state banking department of the state of Missouri. It appears that the executor filed two inventories of the estate, what is called "inventory No. 1," being of what is designated the private estate of the testator other than the Exchange Bank. This is not set out in the abstract. Inventory No. 2 is of the assets pertaining to the banking business, setting out not only the assets of the Exchange Bank, appraised at the sum of $42,152.03, but also its liabilities due 213 depositors, amounting to $37,687.55, and unpaid drafts $341.78, making a total of $38,029.33 indebtedness on account of the Exchange Bank. It appears by the abstract of the evidence in the case, as well as by the admissions of counsel for the respondent before the court, that it was found impracticable on the death of Taylor Purl for the executor to carry on the private banking business as executor; accordingly a new bank with a capital of $10,000 was organized and incorporated, Mrs. Inez Purl Carr becoming the owner of $9,000 of stock in the bank.

It further appears that on January 2, 1906, the executor presented a petition for order of sale, at private sale, of the personal property of the bank, "including assets, good will, safe, furniture, books, and other personal property belonging to said bank." This was approved and order for sale entered same day. He also on the same day presented a petition for order of sale at private sale, of the personal property of the estate not pertaining to the bank. This was approved and sale ordered same day. On January 15th the executor reported that he had sold the bank assets for $34,918.30, to the "Exchange Bank of Jonesburg" (that being the name of the new corporation, the private bank having been known as "Exchange Bank of Jonesburg, Missouri"). The report proceeds: "And the said Exchange Bank of Jonesburg having complied with the terms of said sale and paid to me the said sum of $34,918.30, the said property was sold, turned over, and delivered to it, the said Exchange Bank of Jonesburg." This was approved by the probate court January 15, 1906, the executor being ordered to take proper receipts for the $5,000 from Mrs. Carr. On January 16th the executor reported sale of property belonging to estate outside of the bank to Inez Carr for $551. This was approved on that date. On the same date the executor presented a petition "for order of partial distribution of the assets of said estate, to wit: Inez Purl Carr, the only heir-at-law and only legatee of the said Taylor Purl, deceased, in the sum of $5,000." The petition was granted January 16th and the $5,000 ordered distributed and paid to Inez Purl Carr. The discrepancy between the $34,918.30, for which the assets are reported sold and $42,152.03, the appraisement value of the bank assets, $7,233.73, is said by counsel to be covered by "cash and cash assets," which is probably correct, but there is no explanation of it in the record. No point is made on it however. It appears also by statement of counsel at bar that the executor deposited the whole fund — $42,152.03 — in the new bank, checking out against it amounts due the depositors of the bank, it appearing that there were 213 checks for that number of depositors, and that he also took care of or paid the outstanding drafts, six of them, amounting to $341.78, thus turning over to the creditors of the bank $38,029.33. Thus all the assets of the bank, consisting of notes, checks, school warrants, currency, etc., appear to have passed through the hands of the executor, amounting, as before said, to $42,152.03.

A summary of the first settlement, filed and approved December 28, 1906, shows the total amount of assets of the bank at the death of the deceased by the inventory to be $42,152.03 — due depositors $37,687.55. These depositors were reported paid in full in this first settlement; the recapitulation of the first settlement showing:

                By amount paid depositors
                 vouchers 1 to 213..................  $37,687 55
                By amount paid drafts, vouchers
                 214 to 219.........................      341 78
                   Total vouchers filed.............. $38,029 33
                   Balance after paying depositors and
                   drafts ............................. 4,122 70
                

The above balance was carried forward as an additional charge to the inventory of the estate outside of the bank, and along with this settlement, covering the bank, and on the same date, appears the first annual settlement of the estate, on account of the personal estate of said deceased other than the private banking institution of said deceased, known as the Exchange Bank of Jonesburg, Mo., together with the balance of money remaining after the payment of all the liabilities of said Exchange Bank:

                To amount of personal estate as
                 shown by inventory................. $4,408 93
                Balance in hands of executor after
                 payment of liabilities of Exchange
                 Bank...............................  4,122 70
                                                     ----------
                  Total ...........................  $8,531 63
                Vouchers 1 to 20 inclusive and including
                 probate court costs in
                 various amounts therein in the
                 sum of.................................... $6,385 02
                By amount paid executor on account
                 of service................................    200

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