Lessing, Mayer & Co. v. Vertrees

• Decision Date: 31 July 1862
• Citation: 32 Mo. 431
• Court: Missouri Supreme Court
• Parties: LESSING, MAYER & Co., Plaintiffs in Error, v. JAMES C. VERTREES et al., Defendants in Error.

32 Mo. 431

LESSING, MAYER & Co., Plaintiffs in Error,

v.JAMES C. VERTREES et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1862.

Administration--Title.

Although the administrator or executor is entitled to the personal effects and choses in action of the decedent, he holds them only as trustee for the creditors and next of kin, and not for his own benefit; therefore the effects of the decedent cannot be seized by a judgment creditor of the administrator in payment of the debt of such administrator. Nor are the payees of a note given to the administrator for goods of the decedent sold by him, liable as garnishees to a judgment creditor as being debtors of such administrator. (The cases of Lecompte v. Sergeant. 7 Mo. 351, and Thomas v. Relfe, 9 Mo. 377, overruled.)

Error to Ray Circuit Court.

Henry Binswanger, as administrator of Solomon Binswanger, deceased, had sold the goods of the intestate, and taken in payment the notes of the defendants, Vertrees et al., payable to himself as administrator, and upon such notes, upon default of payment, had obtained judgment. The plaintiffs, having obtained judgment against Henry Binswanger, issued execution and summoned the defendants, Vertrees et al., as garnishees of said Henry. The garnishees answered, setting up the purchase of the goods and giving of the notes to Henry as administrator, and concluded by denial of all indebtedness to said Henry. Issue was taken by the plaintiffs upon the answer, and the facts submitted to the court, which held that the garnishees were not liable as debtors of Henry Binswanger, and gave judgment for said garnishees. From this decision the plaintiffs appealed.

Aikman Welch, for plaintiffs in error.

I. The only question in this case is, where a note is taken by an administrator for goods of his intestate, sold by him, and a suit is afterwards instituted on such note by the administrator in his individual name, and a judgment is recovered in his individual name, whether the judgment debtor in such judgment is subject to garnishment at the instance of an individual creditor of such administrator for the private debt of such administrator.

By the common law, an administrator became the owner of the personal estate of his intestate, and held the legal title thereto. (Com. Dig. 132; Coke Litt. 388; 1 Williams on Exec. 449.) And this must be held to be the law of this State, unless such common law has been changed by statute.

In this State, in Lecompte v. Sergeant, 7 Mo. Rep. 351, this is declared to be the law, and the individual debts of the administrator were permitted to be set off against a demand due to the intestate. This doctrine was re-affirmed in this court in the case of Thomas et al. v. Relfe, adm'r of Hunt, 9 Mo. 373.

If this doetrine shall be held to be correct, it will then follow that the garnishment in this case was well taken, and the judgment of the court below was then clearly erroneous.

II. At common law, the recovery of the personal property of an intestate, in the individual name of the administrator, was a conversion of such property of the intestate, and regarded as a devastavit. The property then became the absolute individual property of the administrator, and subject to his debts. (Quick v. Staines, 1 Bos. & Pul. 293; see also Farr et al. v. Newman et al. 4 T. R. 621; Jones et al. v. McNeill et al. 1 Hill, S. C., 56.)

The administrator is the owner of the personalty of his intestate, and can sell the same without any order of court, and such sale is valid and passes the title.

Although the creditors of an estate might complain of the application of the funds of the estate to the discharge of the debts of the administrator, yet the administrator cannot so complain. (Jones et al. v. McNeill et al. 1 Hill, S. C., 56.)

Ryland & Son, for defendants in error.

I. As to the property in the notes and judgment:

In whom was the property and ownership of the judgment obtained by H. Binswanger on the notes given upon the consideration of the sale, by order of the Probate Court of Clay county, of the goods, wares and merchandise of Solomon Binswanger's estate? We say, emphatically, the property of the estate of Solomon Binswanger, deceased.

Though the words “administrator of A. B.,” on the face of the note, may be considered as descriptio personæ, and when justice requires it will be thus considered, yet in this case the proof shows that the property sold (the consideration of the notes) was the property of the estate of Solomon Binswanger, and was not Henry's property. The issue was fairly made as to whether the note was evidence of a debt due Henry, or due to Solomon's estate, and the proof is clear that it was not to Henry, but to Solomon's estate, the money was coming.

Surely the simple fact that the attorneys for the administrator, bringing the suit on notes which might well be brought as administrator, or as an individual simply, cannot have any such effect as contended for by the plaintiffs in this action. Newlin and others, securities for H. Binswanger, were not willing for him to have the notes; and, when they became due, they, at H. Binswanger's order, brought suit on them for the benefit of the estate, and not as H. Binswanger's own private property. (See 2 R. C. 1855, p. 1462; Farr v. Newman et al., 4 Tenn. 344, t. p.; 8 Mo. 161; 7 Mo. 351.)

BAY, Judge, delivered the opinion of the court.

The question presented for our consideration in this case is, whether the personal property and effects of a decedent, in the hands of his executor or administrator, can be seized by a judgment creditor of such executor or administrator, and applied to the payment of the individual indebtedness of such executor or administrator.

The plaintiff in error contends for the affirmative of this proposition, and relies chiefly upon the decision of the Supreme Court of this State, in Lecompte v. Sergeant, 7 Mo. 351, in which Judge Tompkins, in delivering the opinion of the court, said: “No principle of law is more generally acknowledged than that the executor or administrator is, for every purpose, the owner of the moneys of his intestate which have come to his hands.”

The same doctrine was acquiesced in, in Thomas v. Relfe, 9 Mo. 377; but, after a careful examination...