Julian v. Abbott

• Decision Date: 30 April 1881
• Citation: 73 Mo. 580
• Parties: JULIAN, Administrator, Appellant, v. ABBOTT.
• Court: Missouri Supreme Court

73 Mo. 580

JULIAN, Administrator, Appellant,

v.ABBOTT.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Greene Probate and Common Pleas Court.--HON. T. H. B. LAURENCE, Judge.

AFFIRMED.

This was an appeal from the judgment of the lower court overruling exceptions filed by S. H. Julian, as administrator de bonis non of the estate of H. J. Lindenbower, deceased, to the closing settlement of James Abbott, the former administrator. Abbott asked credit for the said Lindenbower's share of an uncollected note of one Henderson Jones in favor of Lindenbower and one Joel Abbott. Julian objected to the credit, alleging that Jones was insolvent, and that the administrator could have made the money, but consented and agreed that certain personal property which was mortgaged to secure the note should be removed from the State and sold, and the proceeds squandered, whereby the same had become a total loss to the estate; and he prayed that the administrator be charged with the full amount of the note as having been lost to the estate through his negligence.

The history of this note was as follows: On the 8th day of September, 1870, Jones being indebted to Lindenbower and Joel Abbott in the sum of $14,829.74, executed the note for that amount, and to secure it, on the same day, executed a deed of trust on a tract of land and a quantity of whisky in barrels, about 9,000 gallons. This deed of trust also secured other notes of Jones, on which Lindenbower and Joel Abbott were sureties. James Abbott, the present defendant, was trustee. Jones retained possession of the whisky, selling from time to time as he could, and applying the proceeds in reduction of the other notes. On the 24th day of January, 1871, Lindenbower died. James Abbott became administrator of his estate and inventoried as part of the assets of the estate his interest in the Jones note. In January, 1873, a large quantity of the whisky still remaining on hand, Joel Abbott, by agreement with Jones, and with the consent of James Abbott, removed it to the state of Texas, and there sold it. Portions of the proceeds, amounting in the aggregate to $2,950, were, at various times, sent to James Abbott, to be used in buying goods to be sent to Texas to replenish the stock in a business which Joel had set up there. No part of the proceeds were ever paid over to James Abbott to be credited on the note. Everything was invested in the business, and was finally lost through the failure of Joel. The testimony adduced at the trial was voluminous, and in many particulars conflicting. That of the exceptor tended to show that the administrator was guilty of negligence in failing to obtain possession of the whisky and sell it, and in consenting to its removal beyond the limits of the State. That of the the administrator, on the other hand, tended to show that there was no sale for it in Greene county and the surrounding country, that the prospect of selling it to advantage in Texas was good, that he acted prudently in leaving it in the possession of Joel Abbott, entrusting it to his management instead of taking charge of it himself. The court gave the following declarations of law: (1) When an administrator returns a note as insolvent, in his final settlement, the burden of proof is on him to show that it could not be collected, and could not have been during the time he had charge of the estate. (2) An administrator is bound to use all the care, diligence and caution in the management, collection and protection of the assets of the estate that a prudent and careful business man would use in the care and management of his own business, and if necessary, said administrator is authorized to employ an agent to assist him in the collection of the assets of the estate, but if a loss occurs by reason of the management or financial failure of said agent without any collusion, negligence or inattention of said administrator, said administrator is not liable for said loss.

C. W. Thrasher and H. C. Young for appellant.

Lindenbower and Joel Abbott were tenants in common of the Jones note, and each had equal right to enforce its payment, and must join in any proceeding for that purpose. And after the death of Lindenbower, James Abbott, as his administrator, succeeded to his rights in the note, and in the matter of protecting the interest of the estate of said Lindenbower in relation thereto. Clark v. Cable, 21 Mo. 223; Rainey v. Smizer, 28 Mo. 310; Dewey v. Carey, 60 Mo. 224; Gen. St. 1865, ch. 161, § 2; 2 Kent's Com., (10 Ed.) 447; 2 Story Eq. Jur., (4 Ed.) § 1044; Bliss on Code Plead., §§ 62, 64, Groves v. Ruby, 24 Ind. 418; Smith v. Oldham, 5 Mo. 483; Weise v. Gerner, 42 Mo. 527. Under the code the real parties in interest are the only proper plaintiffs in a suit. Webb v. Morgan, 14 Mo. 428; Walker v. Mauro, 18 Mo. 564; Smith v. Kennett, 18 Mo. 154; Smith v. Schibel, 19 Mo. 140; Waterman v. Frank, 21 Mo. 108; Thornton v. Crowther, 24 Mo. 164; Hutchings v. Blackford, 35 Mo. 285. After the death of Lindenbower who but his administrator could be the real party in interest in his share of the note? James Abbott, as trustee in the deed of trust, and administrator of the estate of Lindenbower, a cestui que trust, was in duty bound to use reasonable diligence to secure to the estate of Lindenbower its full share of the proceeds of the goods held by the deed of trust. And if there has been a loss to the estate by reason of his negligence or wrongful act, he is liable for such loss. (1) As trustee, it was his duty to see that the proceeds of the property were properly appropriated to the benefit of the cestui que trust, and to act in the matter with the strictest...