Powell v. Powell

• Decision Date: 22 November 1886
• Citation: 23 Mo.App. 365
• Parties: MARY C. POWELL, Defendant in Error, v. WILLIAM F. POWELL, ADMINISTRATOR OF W. A. POWELL, DECEASED, Plaintiff in Error.
• Court: Kansas Court of Appeals

23 Mo.App. 365

MARY C. POWELL, Defendant in Error, v. WILLIAM F. POWELL, ADMINISTRATOR OF W. A. POWELL, DECEASED, Plaintiff in Error.

Court of Appeals of Missouri, Kansas City.

November 22, 1886

ERROR to Callaway Circuit Court, HON. G. H. BURCKHARTT, Judge.

Reversed and remanded with directions.

The case is stated in the opinion.

CREWS & THURMOND and BOULWARE, for the plaintiff in error.

I. It was the duty of the administrator to furnish all the necessary labor and care to preserve the estate, and to make report to probate court at its next meeting, and upon his application the court had authority to order an appropriation for payment of the same. Sect. 100, Rev. Stat. And the court may order all further labor to be done which may be necessary for the preservation of the estate. Sect. 101, Rev. Stat. The labor, if any, of plaintiff, was not done by order of the court, nor has the administrator asked the court to order that it be paid for out of the estate. The probate court had no power or authority to appropriate the funds of the estate for any purpose except such as the statute specially directs, and then only when asked to do so by the proper party.

II. Probate courts are creatures of the statute, and can do nothing except when the statute gives power to do so. Such courts take nothing, as to the exercise of such powers, by implication. Powers v. Blakey, 16 Mo. 437; Lake v. Meier, 42 Mo. 389; Coil v. Pitman, 46 Mo 51; Kelley's Probate Guide; Baldwin v. Whitcomb, 71 Mo. 651.

III. Plaintiff's claim accrued since the death of William A. Powell. It is no debt or demand against his estate. It cannot be allowed and classified. The probate court had no power to pay [allow] such claim until asked to do so by the administrator. Sects. 100 and 101, Rev. Stat. No order was made by the court directing that the work and labor be done by the plaintiff, nor has the administrator asked that the court order an appropriation for payment of same, as expenses for administration, or for the preservation of the estate. The court has no jurisdiction or power to order the assets of the estate applied to the payment of a claim growing out of a contract made with the administrator, unless it had been ordered by the court prior to the creation of the demand, or when the administrator asks for such order. Smarr v. McMaster, 35 Mo. 349; sect. 100, Rev. Stat.

IV. The court should have declared the law as asked by defendant, and defendant's demurer to the evidence should have been sustained.

S. B COLLIER, A. FINLEY and JOHN A. HOCKADAY, for the defendant in error.

I. The probate court has original, exclusive jurisdiction over all matters pertaining to expenses of administering of estates. Const. Mo., art. 6, sect. 34; sects. 1176, 192, 100 and 101 and the tenth sub-division of sect. 292, Rev. Stat.; Mayberry v. McClurg, 51 Mo. 256; Co. Litt. 291 b; Moore, Executor, v. Brown, Admr., 14 Mo. 165. The manner of its exercise, although not in strict accord with the letter of the statute, if it comes within its spirit and purpose, it is sufficient. In re Bomino's Estate, 83 Mo. 441; Dubois v. Sands, 43 Barb. [N. Y.] 412. The rule limiting probate jurisdiction to statute authority is not altogether without exception. 76 Mo. 296.

II. The purpose of the statute was to secure the preservation of the property of estates from destruction and injury, by providing means for its security and protection, through the administrator and the probate court, whose authority is absolute and complete. Smarr v. McMaster, 35 Mo. 351. The action of the probate court in sanctioning the expenditure for the preservation of the property, after it was done, instead of authorizing it in advance, was a substantial compliance with the statute, and legalized the action of the administrator in the premises. Brown's Legal Maxims (Ratification), 539. The contract was a legal and valid one against the estate, and the failure of the administrator to advise the court of it, at its next meeting thereafter, does not avoid the contract.

III. The widow's quarantine rights extended to the entire farm. Sect. 2205, Rev. Stat.

IV. Plaintiff's compliance with the terms of the contract, bound the estate to pay a reasonable compensation. The estate must meet the liability. Hay, Admr., v. Walker, 65 Mo. 17; 2 Greenl. on Evidence, sect. 108; sect. 100, Rev. Stat.

PHILIPS P. J.

This controversy arises on the presentation for allowance of a claim in favor of Mary C. Powell against the estate of her husband, William A. Powell. Said William died intestate in Callaway county, in the month of June, 1884. In the same month letters of administration were granted on his estate to Wm. F. Powell, father of the deceased. Belonging to the estate were a large number of cattle, hogs and sheep. The widow, with the minor children, remained in possession of the dwelling house and messuage. It was the wish of the deceased, expressed just before his death, that the said stock be retained on the farm until they were sold under administration. On consultation between the widow and the administrator it was mutually deemed best for the interest of the estate that the stock be so retained, and not sold until the following March. The administrator furnished the hands to care for the stock, who were boarded by the widow on the farm. She was to have the use of the milk and butter produced by the cows.

Nothing was said between the parties to this arrangement about any compensation to the widow on this account. During the time of her occupancy of the dwelling house she had some repairs made thereon, for which she paid.

In August, 1885, she duly presented for allowance against the estate a claim for the board of the hands during the time the stock were kept on the farm, for pasturage, etc., used by the stock, and for the amount of said repairs, amounting in the aggregate to four hundred and seventy-nine dollars.

The probate court allowed this account, after deducting certain credits, for the sum of $286.45. The administrator appealed to the circuit court, where on trial de novo, the claimant again prevailed, and had judgment for two hundred and eighty-six dollars, from which the administrator prosecutes this writ of error.

I. The first observation, suggested by the admitted facts, is, that none of the acts in question were done under the sanction or order of the probate court. As to the item of the account for repairs to the dwelling house, it is conceded there was no order of the court authorizing it to be done, and that it should be excluded. While the instructions, as shown by the bill of exceptions, would indicate that the court, sitting as a jury, held that this item was allowable, the phraseology of the judgment itself clearly indicates that the court did not include it in the amount of the judgment.

The more important questions to be determined are, as to the proper construction to be placed upon the following sections of the statute:

" Section 100. If any person die, leaving horses, or other stock, that require attention, crops ungathered, property so exposed as to be in danger of loss in value, or work in an unfinished state, so that the estate would suffer material loss from the want of care and additional labor, the executor or administrator may, until the meeting of the court, procure such indispensable labor to be performed, on the most reasonable terms that he can.

Section 101. The court, on the application of any person interested, may, in such cases, authorize further labor to be performed, as the interest of the estate requires, and all sums thus paid, if approved by the court, shall be allowed as expenses of administration."

The contention of defendant in error is, first, that the intendment of the statute is not to create a claim against the estate in favor of the third party, who may furnish these supplies to the administrator, but it contemplates that the administrator shall furnish them, and receive credit therefor in his settlement; and, second, that the statute does not recognize the right of the administrator to make such provisional arrangement longer than the vacation of court.

As to the first proposition, it is true that the general provisions of the statute for allowance of demands against estates apply only to demands existing at the time of the death of the intestate or testator. But it occurs to me that the provisions made in said sections 100-101 are exceptional, and were designed to meet an emergency not hitherto provided for.

Section 100 expressly authorizes the administrator to " procure such indispensable labor." Unquestionably this authorizes him to hire and board hands and to buy food, where necessary, to preserve the property. Equally clear is it that the statute contemplates that the estate should pay this expense. It is not a personal matter or undertaking of the person upon whom the burden of administration is cast. He is acting solely in an official or trust capacity, for the exclusive benefit of the estate. The law ought not to, and we think did not, intend that an...