Meddis v. Kenney
| Decision Date | 20 June 1903 |
| Parties | MEDDIS v. KENNEY et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Circuit Court. -- Hon. Henry C. Riley Judge.
Affirmed.
J. W Limbaugh for appellants.
(1) The court erred in the admission of evidence offered by respondent. The Cape Girardeau Court of Common Pleas has both common-law and probate jurisdiction. R. S. 1899, sec. 2, p 2579. In the administration of the estate of John Albert, it was exercising its probate jurisdiction, and its procedure therein is governed by the law applicable to probate courts. The only authority for taking a cause from the probate court to the circuit court (except on appeal), is found in section 1760, Revised Statutes 1889. In the deed made by Leon J. Albert, administrator of John Albert, the recital as to how the estate got into the circuit court is as follows: "Which estate and all the papers appertaining thereto were by the order of the Cape Girardeau Court of Common Pleas in said county and State ordered to be and were sent to said circuit court which order is of record in the records of said Cape Girardeau Court of Common Pleas." The above recital in said deed is all the evidence as to how the administration got into the circuit court. It does not appear therein that the case was certified to said circuit court, nor that the cause went there for any of the reasons named in section 1760, Revised Statutes 1899. Morris v. Lane, 44 Mo.App. 1; Kansas City v. Ford, 99 Mo. 91; Railroad v. Hoereth, 144 Mo. 148. (2) The first declaration of law asked by respondent should have been refused for the reason that it nowhere appears in evidence that the realty was sold for the payment of debts. Instructions must be predicated on some evidence in the cause. McAtee v. Valandingham, 75 Mo. 45; Stone v. Hunt, 114 Mo. 66; Wilkerson v. Eilers, 114 Mo. 245; Railroad v. Railroad, 118 Mo. 599. (3) Respondent's second declaration of law is likewise obnoxious to the same objection of want of evidence on which to predicate it, and upon the same authorities last above cited, should have been refused.
Angelo Dempsey and Robert L. Wilson for respondent.
The executor of the will of John Albert is unequivocally authorized by the provisions of said will to sell and convey the real estate to pay the debts of the testator, and it was not necessary to apply to the probate court for an order to sell the real estate. That power follows the office, and if the letters testamentary are revoked before the executor obeys or carries out the provisions of the will, the administrator de bonis non with the will annexed is vested with all the power and authority given to the executor; and it not being necessary for him to procure an order from the court to sell the land, it was not necessary for the administrator de bonis non to procure an order to sell and convey. Francisco v. Wingfield, 161 Mo. 557; Evans v. Blackeston, 66 Mo. 437; Dix v. Morris, 66 Mo. 514; Henry v. McKerlie, 78 Mo. 433; State to use v. Towl, 48 Mo. 148. Appellants did not assail the deed of the administrator even collaterally on the ground of a defect in the advertisement of sale. As that objection was not made by appellants in the trial court, and no suggestion made in the motion for new trial, the objection being made for the first time in the appellate court, will not now be entertained by this court. R. S. 1899, sec. 864; St. Louis v. Sieferer, 111 Mo. 663; Haniford v. City of Kansas, 103 Mo. 172; Claflin v. Sylvester, 99 Mo. 283; Newton v. Miller, 49 Mo. 283; Green v. Walker, 99 Mo. 72; Graham v. Railroad, 113 Mo. 408.
This is an action of ejectment in statutory form to secure possession of the north half of lot three, range "A," in the city of Cape Girardeau, Missouri, known as the John Albert homestead.
The suit was originally begun in the Cape Girardeau Court of Common Pleas, against the defendant Nancy R. Kenney, the tenant in possession. Afterwards, H. H. Albert, the landlord of the defendant Kenney, was, on his own application, made a party defendant, and the venue changed to the Cape Girardeau Circuit Court, where the cause was tried by the court without a jury, resulting in a judgment for the plaintiff, from which defendants have appealed to this court. The petition is in the usual form, and the answer a general denial.
The record shows that John Albert died testate, in Cape Girardeau county, Missouri, in August, 1881, leaving surviving him his widow, Terresa Albert, and the following children, to-wit: Anna, William, Robert, Clement, Jules, and the defendant H. H. Albert. That John Albert at the time of his death was seized of the land in suit and occupied it as his homestead. Both parties claim through him as the common source of title. By the last will of John Albert, which was duly probated in that county, Linus Sanford was appointed executor. After giving to each of his children the sum of one dollar, the will provides: "To my wife, Terresa Albert, I give and bequeath all the balance of my property of every kind, whether real or personal, after the payment of my debts." Sanford qualified and proceeded to administer on the estate. In 1897, Sanford, as such executor, filed his petition in the Cape Girardeau Court of Common Pleas, a court possessing original probate jurisdiction, setting forth the fact that the personal property was insufficient to pay the debts of the estate, and prayed for an order authorizing him to sell the land in question. At the next term thereof, it appearing that the newly elected judge of the court having been of counsel for H. H. Albert and his brother and sister, was disqualified to act in the matter, an order of record was made certifying the cause to the Cape Girardeau Circuit Court, as provided by section 1760, Revised Statutes 1899, and the clerk was directed to transfer all of the original papers therein to the circuit court. Thereupon the circuit court, at its May term, 1897, made an order authorizing the executor to sell at public outcry the lot in question for the payment of debts, the terms of sale being one-fourth cash and the balance payable in six months. The order was renewed at the August term, 1897, and on the 5th day of June, 1898, the executor, after having the lot appraised, sold the same at public sale in pursuance of the order aforesaid, at which sale the Fidelity Trust Safe Vault Company, a Kentucky corporation, became the purchaser, for the sum of $ 2,005. The estate of Terresa Albert, the administration of which was pending in the city of St. Louis, held fifth-class demands against the estate of John Albert, amounting in the aggregate to about $ 1,800, and the Fidelity Trust Safe Vault Company held a sixth-class demand, as trustee, against said estate for $ 1,500. Shortly prior to the sale the executor represented to the agent of the Fidelity Trust Safe Vault Company that he did not desire to handle any of the purchase money to be paid for this property, except an amount necessary to pay expense of sale, and stated that if the Fidelity company would purchase these demands against the estate, he would accept them as cash. Thereupon the Fidelity company purchased all the outstanding demands against the estate, except the one held by it as trustee, and paid the costs of the sale, including the executor's commission. The money derived from the proceeds of the sale of the lot in question was paid to the defendant H. H. Albert, and his brothers and sisters. Upon these facts the circuit court, at the next term thereafter, approved the sale and ordered the executor to make a deed to the purchaser. Afterwards one of the securities on the executor's bond having died, the circuit court, upon the application of a creditor of the estate, ordered the executor to give a new bond. Having failed to comply with this order, the executor's letters were revoked, and Leon J. Albert was appointed as administrator de bonis non with the will annexed, and duly qualified as such. On the 8th day of February, 1899, the Fidelity company, having assigned its bid to the plaintiff herein, a deed was made by the administrator at the request of the Fidelity company to the plaintiff in pursuance of the sale, which was duly approved by the court. This deed constitutes plaintiff's claim of title to the land in question. The record further shows that after John Albert's death, the lot in question was occupied by his widow Terresa Albert, until her death, which occurred in September, 1894, and that thereafter her children occupied the premises until May 26, 1898, when they, after receiving their share of the proceeds of the sale, conveyed the lot by quitclaim deed to the defendant, H. H. Albert, whose tenants have been in the possession thereof since, and he claiming title to the premises from that time, by virtue of the deed so procured from his brothers and sisters. At the close of the case the following declarations of law were given at plaintiff's request:
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