McPike v. McPike
| Decision Date | 01 July 1892 |
| Citation | 20 S.W. 12,111 Mo. 216 |
| Parties | McPike, Administrator, v. McPike, Plaintiff in Error |
| Court | Missouri Supreme Court |
Error to Ralls Circuit Court. -- Hon. W. W. Edwards, Judge.
Reversed.
R. F Roy and David Goldsmith for plaintiff in error.
(1) This action is in effect one against the sureties on the administration bond, and no charge, for which they are not liable, can be herein made against the administrator. Dix v. Morris, 66 Mo. 514; State v. Richardson, 82 Mo. 509; Lewis v. Carson, 93 Mo. 591. (2) The findings of the referee are reviewable as in chancery cases. In re Est. of Meeker, 45 Mo.App. 186. (3) The administrator is not chargeable for the rent of the Alton mills accruing after the death of Mr. Abraham McPike, nor for the proceeds of the sale of that property in partition; such rents and proceeds of sale are not assets of the decedent in this state, and the administration thereof is not covered by the administrator's bond. Cabanne v. Skinker, 56 Mo. 357; Morrill v. Morrill, 1 Allen, 132; Smith v. Smith, 13 Ala. 329; Smith v. Wiley, 22 Ala 396; Peck v. Mead, 2 Wend. 470; State ex rel. v Osborn, 71 Mo. 86; Sheldon v. Rice, 30 Mich. 296. (4) The rule as to foreign personalty is different in the various jurisdictions, owing to the diversity of opinion as to whether, or in how far, such personalty constitutes an asset for the purposes of administration at the place of domicile. 1 Woerner on Administration, p. 362, et seq.; Vol. 2, p. 648; Williams on Executors [Perkins' Am. Notes] pp. 1759-1761; Story on Conflict of Laws [8 Ed.] sec. 514a, et seq. (5) But the following authorities deny the liability of an administrator's sureties for foreign personalty. Mothland v. Wireman, 3 Pa. (3 Pen. & W.) 185; Governor v. Williams, 3 Ired. L. 154; 1 Woerner on Administration, sec. 166, p. 374; Story on Conflict of Laws [8 Ed.] pp. 727, 728. (6) The common law, free from statutory amendment, is presumed to prevail in Illinois, there being no proof of what the law there actually is. Long v. Long, 79 Mo. 651; Meyer v. McCabe, 73 Mo. 236. (7) And if, as must thus be presumed, the common law exists in Illinois, an administrator appointed there would not be liable for rents collected by him, if they accrued after the death of his intestate; and, therefore, an administrator appointed here could not be liable in his official capacity for such collections of rent in Illinois. Young v. People, 35 Ill.App. 363; Newcomb v. Stebbins, 9 Met. (Mass.) 540; Hutcherson v. Pigg, 8 Gratt. (Va.) 220; Wilson v. Unselt's Adm'r, 12 Bush (Ky.) 215; head v. Sutton, 31 Kan. 616; Belcher v. Branch, 11 R. I. 226; Walker's Appeal, 116 Pa. St. 419. (8) The same would be true in regard to the collection of the proceeds of the sale of the realty in partition; the administrator could not possibly have collected such proceeds in his official capacity, if the common law prevailed in Illinois. See, in addition to authorities last cited, Freeman on Partition [2 Ed.] sec. 471, p. 627; Foster v. Newton, 46 Miss. (4 Morr.) 663. (9) The decisions in this state are not inconsistent with these authorities, since they are predicated on the statutory duties and rights of administrators. Lewis v. Carson, 93 Mo. 591, 592. (10) Under the decisions in Illinois an administrator would not in fact be thus liable. Young v. People, 35 Ill.App. 363; Stark v. Brown, 101 Ill. 395; Lemoyne v. Quimby, 70 Ill. 403. (11) The charges against the administrator for the pasturage and feed of mules are unwarranted. These charges are not for the rent or rental value of the land, and no charge against him for rent or rental value would have been warranted by the evidence. (12) The administrator is entitled to interest on his outlays in excess of receipts. He is entitled to subrogation to the rights of the creditors whose claims he has paid, and they carried interest. Randolph on Commercial Paper, secs. 901, 982; Bank v. Hunter, 4 Bosw. 646; Kinney v. Harvey, 2 Leigh (Va.) 70; Gaw v. Huffman, 12 Grat. 628; Sheldon on Subrogation, sec. 202; Woods v. Ridley, 27 Miss. 119; Smith v. Hoskins, 7 J. J. Marsh. (Ky.) 502. (13) Even on advancements to the heirs the administrator was entitled to interest, so long as the rights of creditors were not prejudiced. Woerner on Administration, secs. 521, 523. (14) The exceptions filed by the administrator de bonis non were invalid because filed out of time, and all the charges against the administrator predicated thereon are, therefore, erroneous. Revised Statutes, 1879, sec. 3622; Welch v. St. Louis, 73 Mo. 73; Moran v. January, 52 Mo. 523; Dale v. Patterson, 63 Mo. 98; State v. Duckworth, 68 Mo. 156; Wright v. Sheur, 55 Mo. 70; State v. Hill, 98 Mo. 570. (15) The disallowance by the circuit court of the item of $ 1,246.60, for payments made to Miss Ella McPike, is illegal, because no exception was taken to the allowance thereof by the referee. (16) The charge of interest against the administrator on specific items of the account is unwarranted both in law and fact.
J. P. Wood and Harrison & Mahan for defendant in error.
(1) The administrator was properly chargeable with the rents, proceeds of sale and items of account of the Alton mills. He collected and had the money in his hands in his official capacity. The money belonged to the estate of A. McPike, and the administrator should be made to account for it as assets of that estate. Peppler v. Scholl, 47 Mo. 84; Betts v. Purdy, 67 Mo. 94; Tyler v. Priest, 31 Mo.App. 285; Gamble v. Gibson, 59 Mo. 594; Scudder v. Ames, 89 Mo. 496; Lewis v. Carson, 93 Mo. 591; Schouler's Executors & Administrators, secs. 175, 176. (2) Henry McPike, the administrator, controlled the lands of the estate for his own individual use and benefit. On the product thereof he fed and pastured his mules. He used the lands as if rented, and he is responsible to the estate for the benefits which he derived from such use. The charge was warranted, and should be allowed. It was abundantly supported by the testimony. Woerner on Administration, sec. 307; Smiley v. Smiley, 80 Mo. 44; Lewis v. Carson, 16 Mo.App. 342; Dix v. Morris, 66 Mo. 518; Tyler v. Priest, 31 Mo.App. 284; Wolff v. Berning, 74 Mo. 87; Whaley v. Whaley, 51 Mo. 37; Kimball v. Sumner, 62 Me. 309; Wilson v. Shearer, 9 Metc. 508. (3) The record does not show that the administrator was entitled to interest on his outlays in excess of receipts. He had assets which he could have converted into money, and the funds of the estate were at all times sufficient to meet the demands against the estate. Under such circumstances interest cannot be charged. Booker v. Armstrong, 93 Mo. 49; Evarts v. Nanson, 11 Vt. 122; Billingsley v. Henry, 20 Md. 282; Woerner on Administration, sec. 523. (4) The trial judge did not commit error in reviewing the report of the referee; he had the right to review the same, regardless of exceptions; hence, the exceptions filed by the administrator de bonis non were properly considered. Besides the court found "that the short delay in filing the exceptions was satisfactorily explained, -- and also in view of the fact that the parties had by agreement made a law for themselves as to the time of filing the exceptions, which law ought to be liberally construed, and with reference to the real intention of the parties." Smith v. Paris, 70 Mo. 621. (5) The circuit court was authorized by the evidence to disallow the item of $ 1,246.60 for payments made to Miss Ella McPike, because all of such payments were made before the death of her father, and, therefore, it could not be allowed as an advancement to the heir, and the trial court found that there was not sufficient evidence to "authorize its allowance as a credit paid before the death of the intestate." The circuit court had the right to review the finding of the referee and make the amendment in this behalf. Walker v. Hurlstone, 92 Mo. 332; Hardware Co. v. Wolter, 91 Mo. 488; Smith v. Paris, 70 Mo. 621.
Abraham McPike died in January, 1873. Henry C. McPike was duly appointed administrator of his estate by the probate court of Ralls county, Missouri.
This is an appeal from the judgment of the circuit court of Ralls county, on his final settlement of said estate with Jeremiah McPike, who was appointed administrator de bonis non. On his final settlement in the probate court, the administrator claimed a balance due him from the estate of $ 5,079, and there was an approval of this settlement. From this judgment the administrator de bonis non appealed to the circuit court of Ralls county. The circuit court referred the cause to Thos. H. Bacon, Esq., with instructions to take the testimony, hear and determine the matters in dispute and make full report to said circuit court in writing of all the testimony, together with his findings and decisions on the issues of the case.
The referee heard the cause, and the evidence was closed the ninth of March, 1886, when the further hearing was continued to June 22, 1886. At this last date the administrator, Henry C. McPike, filed his motion to strike out of his account certain charges he had made against himself for rents and the proceeds of sale in partition of certain real estate belonging to his intestate in Alton, in the state of Illinois, amounting to $ 13,990. This motion the referee overruled.
The referee made his report to the circuit court of Ralls county on the sixth of December, 1886, finding a balance due the estate from H. C. McPike of $ 8,425.70. Both sides filed exceptions to this report.
The referee, Thos. H. Bacon, Esq., having been elected judge of the circuit court, by mutual consent, he called Judge W. W Edwards, of the St. Charles circuit court, to hear the exceptions to his report. Judge Edwards heard the cause, and rendered...
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