McCarty v. Frazer

• Decision Date: 31 January 1876
• Citation: 62 Mo. 263
• Parties: EDWARD P. MCCARTY, ADM'R DE BONIS NON OF NANCY HOGG, DECEASED, Respondent, v. ELIJAH S. FRAZER, et al., Appellants.
• Court: Missouri Supreme Court

62 Mo. 263

EDWARD P. MCCARTY, ADM'R DE BONIS NON OF NANCY HOGG, DECEASED, Respondent,

v.ELIJAH S. FRAZER, et al., Appellants.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

N. Meyers & J. P. Vastine, with S. Reber, for Appellants, cited Piper's Estate, 15 Penn. St. R., 536; Scott & Rule vs. Governor of Mo., 1 Mo., 493; 2 Bl. Comm., 512; Garber vs. Commonwealth, 7 Barr, 265; 2 Will. Ex., 1123, (3rd Am. ed.,) 1128; Miller vs. Donaldson, 1 Salk., 306.

C. G. Drummond, for Respondent, cited, Wagn. Stat., 1872, § 54, p. 90; Wagn. Stat., 1872, § 61, p. 91; Redf. on Wills, Vol. 2, p. 191, § 12; Will. on Exrs., Vol. 2, marg. p. 128-9; Mason vs. Stone, 2 Cow., 807, 808; Wankford vs. Wankford, 1 Salk., 306; Stevens vs. Gaylord, 11 Mass., 266; Winship vs. Bass, 12 Mass., 207-210; Eaton vs. Walsh, 42 Mo., 275; Harmer vs. Steele, 4 Exch., 1.

SHERWOOD, Judge, delivered the opinion of the court.

Nancy Hogg died in 1867, leaving a will, in which she appointed as her sole executor James Hall, who duly qualified in that capacity, giving as his sureties the defendants, Frazer and Hodgen. Hall made one annual settlement. The bulk of the estate consisted, as shown by the inventory and the settlement made, of indebtedness due from the executor to the testatrix. In 1870 Hall left the State, and his letters being revoked, McCarty became administrator de bonis non with the will annexed, and therefore instituted the present proceedings under the provisions of section 67, p. 81, Wagn. Stat., against the defendants by motion. This procedure was successful, alike in the probate and circuit courts. Our statute (Wagn. Stat., § 32, p. 87), changing the rule which prevailed at common law, has provided; “If any person appoint his debtor executor of his will, such appointment shall not discharge the debt, but it shall be assets in his hands;” and it has been strenuously insisted here that because of this provision ‘the amounts due by such debtor, executor, * * * * must be considered and treated as so much cash or money actually on hand,’ or else that the concluding words of the section referred to in relation to assets will be meaningless.” We are unable to take this view of the matter. That portion of the section in question is in perfect conformity with Wagn. Stat., section 2, p. 84, requiring the executor to make an inventory embracing, among other things, “the debts due to or to become due to the deceased, the names of debtors;” and in keeping also with the section next thereafter, commanding an affidavit to be made in verification of the inventory, and specifically stating that the executor was “not indebted, or bound in any contract to the deceased, at the time of his death, except as stated in the inventory.” The manifest object of these statutory provisions is to reduce to the same plane all debts due the estate, whether owing by the executor or any other debtor. For this reason, doubtless, the debts of the executor are called assets, and in order to preserve a lasting memorial thereof they are required to be inventoried just in precisely the same manner as, and simultaneously with, debts due from other sources. This obvious parallelism between the debt of the executor and of third persons is of easy observance in other portions of the statute. Thus it is elsewhere provided, (Wagn. Stat., § 18, p. 110,) that “at his final settlement the court shall give credit to the executor * * * for all the debts which have been charged in the inventory as due to the estate, if the court be satisfied that * * * * the debtor was insolvent.” That the debt of the executor is one of those “charged in the inventory” sections 2 and 3 supra demonstrate; that no distinction is made as to any debts the inventory contains is equally demonstrated by the sections just cited in relation to final settlements. The expression “all the debts,” as contained in that section, is evidently the indicator of a legal integer, having for its component parts the aggregated indebtedness ...