Priest v. Spier

• Decision Date: 18 June 1888
• Citation: 9 S.W. 12,96 Mo. 111
• Parties: Priest, Administrator, Appellant, v. Spier et al
• Court: Missouri Supreme Court

9 S.W. 12

96 Mo. 111

Priest, Administrator, Appellant, v. Spier et al

Supreme Court of Missouri

June 18, 1888

Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer Judge.

Affirmed.

W. H Clopton and Krum & Jonas for appellants.

(1) Section 253, Revised Statutes, does not apply. Provision for refunding is there made only in cases where legacies or distributions have been paid. (2) The petition shows that all of the defendants are non-residents. The ten days notice provided for in section 254, Revised Statutes, even if the probate court has jurisdiction, could not be given. Such a notice sent to another state is good for nothing. Howell v. Manglesdorf, 6 Am. & Eng. Corp. Cases, 413. (3) Where assets are found deficient, an administrator may, by bill in equity, compel legatees or distributees to refund. Schouler on Ex'rs and Adm'rs, secs. 491, 512, 295. (4) The probate court has no equity jurisdiction, and it cannot adjust the liabilities of the several devisees. One of the said devisees has sold all his interest, and yet the debts must be paid in full.

D. T. Jewett for respondents.

(1) The petition shows that the real estate therein described descended to defendant, as heirs of said Isaac Walker, and that it has been partitioned among them by decree in court, and turned over to their possession severally, and thereby shows that there has been a judgment of the court having jurisdiction of the matter, that there was sufficient personal property in the hands of the executor to pay all the debts; otherwise no partition could be made. R. S., sec. 3350; Tuppeny v. Hurtung, 46 Mo. 135; Titterington v. Hooker, 58 Mo. 599. (2) In this state the real estate passes to the heirs, and the administrator has no control over it, except by order of court. 23 Mo. 99; 40 Mo. 482. He cannot lease it without order of court. R. S., sec. 129. (3) The administration law of this state furnishes ample and full remedy for any deficiencies of personal assets to pay debts where there is real estate in the hands of the heirs, and within the jurisdiction of the probate court, and the bill shows there is plenty of that. R. S., sec. 146; Titterington v. Hooker, supra.

Norton, C. J. Ray, J., absent.

OPINION

Norton, C. J.

This case is before us on plaintiff's appeal from the judgment of the circuit court in sustaining a demurrer to his petition.

The petition, as summarized by counsel for plaintiff, was as follows: That Isaac Walker died in the city of St. Louis, Missouri, leaving a will, by which he devised his estate, after payment of his debts, as follows: One-eighth to Wm. M. Gawtry, in trust for Annie E. Gawtry; one-eighth to Thos. A. Walker; one-eighth to Geo. W. Bull and Thos. W. Bull jointly; one-eighth to P. I. Nevius, Jr., in trust for Matilda Nevius; one-eighth to Salvanus Jenkins, in trust for Augusta Jenkins; one-eighth to Isaac H. Walker, and one-eighth to Gilbert M. Spier; that after the filing of the original petition, Julia A. Maclay died, leaving a will which was probated in New York, whereby the interest devised to her by the will of Isaac Walker, was devised to the husband and children of said Julia.

The petition alleges further, that Thos. A. Walker was made executor of the will of said Isaac Walker, and that letters of administration were issued to him from the St. Louis probate court, who took upon himself the administration of said estate; that by the terms of the will of said Isaac Walker the interests devised to the trustees aforesaid were limited to the lives of the several cestuis qui trust, and at their deaths the shares of such persons dying descended to their right heirs; that Thomas A. Walker administered said estate until 1873, when he was removed and plaintiff was appointed administrator de bonis non, and that he has continued since to administer the same; that the assets of said estate, both real and personal, were large, and that the liabilities consisted in part of claims long contested in the courts.

The real estate belonging to said Isaac Walker in St. Louis was very valuable, and its description is very long. It is fully described in the petition, but omitted here. The petition states that in 1871 Maclay et al. commenced proceedings in the circuit court of the city of St. Louis for a partition of said real estate, and in 1876 a decree of partition was rendered, commissioners were appointed and the property divided; that Thomas A. Walker has since disposed of all his interests in said property, and he is not...