Powers v. Blakey's Adm'rs

• Decision Date: 31 July 1852
• Citation: 16 Mo. 437
• Parties: POWERS, Plaintiff in Error, v. BLAKEY'S ADMINISTRATORS, Defendants in Error.
• Court: Missouri Supreme Court

16 Mo. 437

POWERS, Plaintiff in Error,

v.BLAKEY'S ADMINISTRATORS, Defendants in Error.

Supreme Court of Missouri.

July Term, 1852.

1. Under sections 9, 10 and 11, of article 2, of the act concerning administration (R. S. 1845), a creditor of an estate cannot maintain an action in the County Court against the administrator for concealing or embezzling property of the estate.

2. Although the County Court has exclusive original jurisdiction of controversies respecting the duties of administrators, yet that jurisdiction can only be exercised in the manner prescribed by statute.

3. To give the County Court jurisdiction of a proceeding by a creditor against an administrator, for waste, under sections 1, 2, 3 and 4, of article 7, of the act concerning administration (R. S. 1845), it must appear that there is an insufficiency of assets returned by the administrator to pay all demands allowed against the estate.

Error to Morgan Circuit Court.

Hayden, for plaintiff in error.

It was competent for the County Court to entertain jurisdiction of the complaint against the defendants, as made by the plaintiff, Powers. Rev. Stat. 1845, title Courts, p. 331, 332, sections 13, 14; Id., title Administration, sections 2, 4, 5, 9, 10, 11 and 45; Article 7, same title and book, section 9, p. 105; Eng. Ecc. Rep. vol. 1, 78, 79, 81, 82; 15 Mo. Rep. 313, 314 and 315, Overton v. McFarland.Gardenhire, for defendants in error.

The court below did right in dismissing the cause.

The affidavit and proceedings against the defendants are based upon the ninth, tenth, eleventh and twelfth sections of the second article of the administration act. These provisions contemplate proceedings by administrators, and not against them. They are intended to aid administrators in collecting estates, not to coerce them to inventory and account for them.

A County Court has no power to compel an administrator to inventory and account for property. It is not for the County Court to determine what property belongs to an estate. This must be determined by an administrator under his official oath and bond. If his determination be wrong, he is liable only upon his oath and bond. The County Court cannot arbitrarily force him to inventory property which he may not believe belongs to the estate, and swear to an inventory made out, not by himself, but by the court.

GAMBLE, Judge, delivered the opinion of the court.

1. The proceeding instituted in the County Court, by Powers against McElwrath and Blakey, who are administrators of Blakey, deceased, is founded upon a misconception of the meaning of sections 9, 10 and 11, of the second article of the act concerning Administrators, Rev. Code, 74. These sections authorize an executor or administrator, or other person interested in an estate, to proceed in the County Court against any person who has concealed or embezzled any of the effects of the deceased, and authorize the County Court to compel the appearance of the party charged, and to hear and determine the complaint. The eleventh section provides for a trial, when the person charged “denies the right of the executor or administrator” to the property alleged to be concealed or embezzled, and directs a judgment to be rendered “according to right.” Powers attempted to use the proceeding under these sections against the administrators themselves, alleging that they had embezzled several slaves of the intestate, and had failed to inventory them, and that he was a creditor of the estate. The County Court not only entertained jurisdiction of the proceedings, but gave judgment that the administrators should make and file an inventory of the slaves within ten days. The case was taken to the Circuit Court by appeal, and the proceedings dismissed for want of jurisdiction in the County Court. It comes here for a review of the action of the Circuit Court.

There can be no doubt that the sections of the statute before mentioned contemplate a proceeding by which property of a deceased person shall be taken from the hands of one who has concealed or embezzled it, and be put into the hands of the executor or administrator, and the language of the sections, as well as the object of the proceedings, forbid the idea that it can be employed against the administrator himself.

2. The position has been assumed that the County Court, under the thirteenth section of the act establishing courts, Rev. Code, 331, has the exclusive original jurisdiction “to hear and determine all disputes and controversies respecting the duties of executors, administrators or guardians;” and, under the fourteenth section of the same act, has the power to cause to come before it all persons who, as executors, administrators, guardians, or otherwise, may be accountable for any lands, tenements, goods or chattels belonging to the estate of any deceased person, and may examine every person, on oath or affirmation, touching any matter of controversy, before it; and that these sections authorize the proceeding in this case. It may be admitted that the exclusive original jurisdiction of controversies, respecting the duties of administrators, is vested, by the thirteenth section, in the County Courts. In fact, it has been so decided by this court. But the mode of exercising that jurisdiction is not left to the discretion of those courts, to be applied in such cases as they may think proper. It is a jurisdiction to be exercised under the direction of the law. The duties of an executor or administrator are very numerous and varied, extending from the time the letters are granted to the final settlement of the estate, and provision is expressly made in the statute for...