Old v. Heibel
| Decision Date | 06 March 1944 |
| Docket Number | 38773 |
| Parties | John W. Old, Individually and as Administrator d.b.n.c.t.a. of the Estate of Clauda Heeg, Deceased; Marian Old, Nora McCarty, Frank McCarty, and Martha Lochhaus, Appellants, v. Henry P. Heibel, St. Louis County Loan & Investment Company, a Missouri Corporation; A. J. Otto Frank, Sheriff of the County of St. Louis, Missouri; Standard Oil Company of Indiana, a Corporation; George F. Robertson and Glasco Electric Company, a Corporation |
| Court | Missouri Supreme Court |
Appeal from the Circuit Court of St. Louis County; Hon. Amandus Brackman, Judge.
Affirmed.
Taylor R. Young and Richard A. Austin for appellants.
A devisee's interest in an estate consists of his share less what he owes the estate. An insolvent devisee cannot share in the proceeds of a sale of real estate devised to him until there has been deducted from his share the amount of any judgment he owes the estate. The debt of the devisee to the estate must be satisfied before a judgment against the devisee in favor of a general creditor can be paid out of the real estate which the devisee takes under the will. The grantee of such a devisee takes with notice of the rights of the estate in such real property, and acquires no better title than was had by the devisee. 3 Woerner's American Law of Administration (3rd Ed.), sec. 564; Thompson v McCune, 63 S.W.2d 41, 333 Mo. 758; Ridings v Hamilton State Bank, 281 Mo.App. 288; Senniff v Brackey, 165 Iowa 526, 146 N.W. 24; Duffy v. Duffy, 55 S.W. 1002, 155 Mo. 144; Trabue v. Henderson, 79 S.W. 451, 180 Mo. 616; Ford v. O'Donnell, 40 Mo.App. 51; Hopkins v. Thompson, 73 Mo.App. 401; Traders' Bank v. Dennis Estate, 221 S.W. 796; Ayers v. King, 168 Mo. 244; Wright v. Green, 239 Mo.App. 449; C.J., pp. 486-87; 34 C.J.S., sec. 494.
A. H. Kerth and Dalton W. Schreiber for St. Louis County Loan & Investment Company respondent.
(1) Title to real estate vests immediately upon death of owner in his heirs or devisees eo instante. Wahl v. Murphy, 99 S.W.2d 32; Lanphere v. Affeld, 99 S.W.2d 36; State to Use of Enyart v. Doud, 216 Mo.App. 480, 269 S.W. 923. (2) A general judgment is a lien upon the real estate of the judgment debtor for a period of three years and no more, unless the judgment is revised by scire facias. Secs. 1269, 1270, 1271, R.S. 1939. (3) An assignment of the interest in the estate of a decedent by one who is a devisee under the terms of the will of such decedent does not create a lien or charge against the real estate devised where the assignment does not specifically describe the real estate devised, or where the assignment is not acknowledged or proved and certified and recorded in the office of the Recorder of Deeds for the county in which the real estate is situated. Secs. 3406, 3426, R.S. 1939; Schroeder v. Turpin, 253 Mo. 258, 161 S.W. 716; Blumenthal v. Blumenthal, 251 Mo. 693, 158 S.W. 648. (4) If personal property sufficient to pay the debts of a decedent is misappropriated by the executor or administrator, creditors are not entitled to have the real estate sold to satisfy their claims, their remedy in such instances being against the executor or administrator on his bond. Merritt v. Merritt, 62 Mo. 150; Swan v. Thompson, Adm., 36 Mo.App. 155. (5) Debts for which a sale of real estate may be valid must have been incurred by the deceased in his lifetime. In re Claus Estate, 147 S.W.2d 199; Farrar v. Dean, 24 Mo. 16; State ex rel. Ziegenhein v. Tittman, 103 Mo. 553, 15 S.W. 936; Trustees of Church v. McElhinney, 61 Mo. 540. (6) The interest of a devisee in the real estate of his testator is not chargeable with debts not in the nature of advances in preference to valid, recorded judgment liens of other creditors of such devisee duly obtained. McClellan v. Solomon, 23 Fla. 437, 2 So. 825; 11 Am. St. Rep. 381; 23 L.R.A. 643; 1 A.L.R. 1018; Bruce v. Farrar, 158 S.E. 856; 75 A.L.R. 872; Marvin v. Bowlby, 142 Mich. 245, 105 N.W. 751; 4 L.R.A. (N.S.) 189; 113 Am. St. Rep. 574; 7 Am. Cas. 559; 1 A.L.R. 1019; Neel v. Compton, 255 S.W. 840; 30 A.L.R. 765; 18 C.J., "Descent and Distribution," 965; 26 C.J.S., "Descent and Distribution," 139; 1 A.L.R. 1017; 30 A.L.R. 780; 75 A.L.R. 872-882.
Dalton, C. Bradley and Van Osdol, CC., concur.
Action in equity to establish and foreclose a lien on described real estate in St. Louis County. A cross petition was filed by defendant St. Louis Loan and Investment Company (hereinafter referred to as Investment Company) against plaintiffs and the other defendants to quiet and determine title to the described real estate. The trial court found for the defendant Investment Company on its cross petition. Plaintiffs have appealed.
The facts are not in dispute. Clauda Heeg, owner of the described real estate, died testate on December 8, 1934 and by her last will and testament devised the described real estate to one Henry P. Heibel. Heibel was named executor without bond and one of six residuary legatees in the will. The other five residuary legatees and the present administrator de bonis non cum testamento annexo are plaintiffs. On December 10, 1934, the will was duly admitted to probate and Heibel was appointed executor without bond. An inventory was filed showing real and personal property of the value of $ 20,000. All claims against the estate and all special legacies provided by the will of deceased have been fully paid. On November 10, 1938, defendant Investment Company recovered a personal judgment against Heibel for $ 2635.15. Execution was thereafter duly issued, a levy made and, on September 9, 1940, Heibel's interest in the described real estate was sold to defendant Investment Company. A sheriff's deed was duly executed, delivered and recorded.
After the rendition of the above judgment against Heibel, but prior to the sale of the real estate, Heibel was, on November 16, 1939 for cause, removed as executor of the estate of deceased. The records of the Probate Court show removal on the admitted ground of appropriation of $ 761.00 of the assets of the estate. Final settlement to date of removal was subsequently filed showing $ 3588.35 due the estate of deceased. Settlement was approved February 26, 1942 and judgment entered in favor of plaintiff administrator and against Heibel. No appeal was taken and the judgment is final and has not been paid. Heibel is wholly insolvent. No final settlement of the estate of deceased has been made and no distribution has been ordered.
Plaintiffs' petition charged that Henry P. Heibel had no right, title or interest in the described real estate subject to execution by his general creditors; that Heibel's interest in the described real estate was contingent until administration of the estate of Clauda Heeg, deceased, had been finally settled and Heibel's indebtedness to the estate had been fully discharged; that the sheriff's deed to defendant Investment Company created a cloud on plaintiffs' title; and that the other defendants, to whom Heibel had assigned an interest in the estate, claimed some right and interest therein. Plaintiffs prayed the court to quiet and determine title to the described real estate and declare the same to be an asset of the estate of the deceased until final settlement of the estate had been made. Considering, however, other allegations of the petition, we think it is apparent that, by this proceeding, the plaintiffs seek to have the judgment (which was rendered in favor of the estate and against Heibel and which admittedly covers his misappropriation of the funds of the estate) declared a superior equitable lien upon the described real estate which was devised to Heibel, but which subsequently, and prior to Heibel's defalcation, became subject to the lien of the Investment Company's judgment against Heibel. Plaintiffs, in effect, contended that defendant Investment Company, at the execution sale, acquired only Heibel's interest in the described real estate; that, since there had been no final settlement of the estate nor any order of distribution, the rights acquired by defendant Investment Company were subject to plaintiffs' equitable right of retainer or set off against the devised real estate for funds due the estate from Heibel; that such right is superior to the lien of the Investment Company's judgment that has been foreclosed (even though the claim of the estate to retainer and set off arose after the lien of defendant Investment Company's judgment attached); and that the plaintiffs' right of equitable retainer or set off is superior to defendant Investment Company's title. (Compare, Warren v. Warren, 255 N.Y.S. 206, 143 Misc. 43.)
The Investment Company contends it is entitled to the decree quieting and determining its title against all of the plaintiffs and all of the other defendants. It insists that the interest of a devisee is not chargeable with his debts to the estate where a valid judgment lien has intervened; and that the right of equitable retainer does not exist against real estate devised by will or vested under the statute of descents. It concedes that the right of equitable retainer exists in favor of an estate against personal property in the hands of the executor or administrator.
There is a conflict among the decisions of the several states on whether the indebtedness of an heir may be charged against his share of the real estate, or the proceeds thereof, and whether a specific devise of real estate is subject to the devisee's debts to testator's estate. 21 Am. Jur. Executors & Administrators, Sec. 460; 34 C.J.S., Executors & Administrators, Sec. 494(d); 24 C.J. 489, Sec. 1317; 69 C.J. 965, Sec. 2155; 18 C.J. 966, Sec. 337; 11 R.C.L. 247, Sec. 279; Annotations, 1 A.L.R. 1017 and 1027; 30 A.L.R. 780; 75 A.L.R. 882 and 885; 110...
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