Orrick v. Vahey

• Decision Date: 29 February 1872
• Parties: W. W. ORRICK, ADMINISTRATOR OF M. D. VAHEY, DECEASED, Respondent, v. BRIDGET VAHEY AND MARK D. VAHEY, Appellants.
• Court: Missouri Supreme Court

49 Mo. 428

W. W. ORRICK, ADMINISTRATOR OF M. D. VAHEY, DECEASED, Respondent,

v.BRIDGET VAHEY AND MARK D. VAHEY, Appellants.

Supreme Court of Missouri.

February Term, 1872.

Appeal from Ray Court af Common Peas.

Alexander & Chiles and Wallace & Mitchell, for appellants.

Even if the partnership estate should be regarded as a distinct and independent estate, and the administrator in charge of both as acting in two entirely different capacities, his sureties on his general administration bond are liable for the distributive share of the deceased partner, and not his sureties on the bond given in respect to the partnership estate. (Wagn. Stat. 73, § 18; id. 79, §§ 59, 60; id. 109, § 11; Schnell v. Schroeder, 1 Bail. Ch. 334; The People v. White, 11 Ill. 341; Ennis v. Smith, 14 How. 400; Pratt v. Northern, 5 Mason, 95; Morrow v. Peyton, 8 Leigh, 54; Alston v. Munsford, 1 Brock, 266.) Where a sum of money becomes due and payable from a person acting in one fiduciary capacity to the same person acting in another fiduciary capacity, there is no extinguishment as at common law, but the amount is by operation of law eo instanti transferred, and he becomes liable and must account for it in the latter capacity. (State v. Horst, 12 Mo. 365.) When W. W. Orrick made his final settlement of the partnership estate, and the balance due the individual estate was ascertained, and he was ordered by the court to pay the amount to himself as administrator of the individual estate, the character of debtor and creditor became united in the same person, and the amount was instantly transferred by operation of law; and when he subsequently offered his final settlement of the individual estate the court should have charged him with it, since it had not been included in the inventory of the individual estate as the law requires, nor debited to him in his general administration. (The State, to use of Jacobs and Wife, v. Hearse, Adm'r, etc., 12 Mo. 365; Wagn. Stat. 109, §§ 9, 10, 11.)

Geo. W. Dunn, for respondent.

It could not have been intended by the Legislature that the administrator of the individual estate should be charged with one-half of the partnership estate, at the same time that the administrator of the partnership estate must be charged with the whole amount of the partnership estate. The proper construction of the statute (Wagn. Stat. 78, §§ 54, 54) is, that the administrator of the partnership estate must be charged in the first instance with the whole amount of the partnership estate, and the administrator of the individual estate with the amount that comes into his hands as the share of the deceased in the partnership estate, upon the final settlement of the partnership estate. The principles that govern this case are the same that would govern it if one person had been administrator of the individual estate, and another person administrator of the partnership estate. In that case the absurdity of charging one administrator and his sureties with the amount of the defalcation of another administrator, for which other sureties are liable, would be manifest.WAGNER, Judge, delivered the opinion of the court.

The question here relates to the liability of sureties on an administrator's bond. It seems that Orrick was appointed administrator on the estate of Mark D. Vahey, deceased, and that he duly qualified and gave bond. Vahey had been in partnership with one Jennings, and the latter neglecting to administer on the partnership effects as provided for by statute, Orrick also took out letters of administration on the partnership estate, and gave the additional bond required. The latter bond was only for $1,000, and was grossly inadequate in amount, and the Probate Court was palpably remiss in its duty in not exacting a larger one. Upon a final settlement of the partnership effects, it was found that there was due to the partnership estate $2,472 96, which Orrick had used and converted to his private purposes, and that he was insolvent. His sureties on the partnership bond paid on his account $1,000, the penalty of the bond, and there was then left a balance of $1,472.96 due the individual estate, which he was ordered to pay over. He had used the money before the settlement, and he never held it as individual administrator. Upon a final settlement of the private estate of Vahey, an attempt was made to charge him with the deficit due and owing to the partnership...