Richardson v. Cole

• Decision Date: 26 February 1901
• Citation: 61 S.W. 182,160 Mo. 372
• Parties: RICHARDSON v. COLE et al.
• Court: Missouri Supreme Court

61 S.W. 182

160 Mo. 372

RICHARDSON v. COLE et al.

Supreme Court of Missouri, Division No. 2.

February 26, 1901.

ESTATE ASSIGNED BY AGREEMENT — ACTION BY ADMINISTRATOR BARRED — PROBATE COURT ORDER—COLLATERAL ATTACK.

1. Where an intestate left personalty and no debts, and the heirs (all being of age) by a written agreement assigned their interests to one of their number, who took possession of the property, the public administrator, who obtained letters on the estate 12 years later, could not recover the property from such heir.

2. In an action by the public administrator to recover personalty paid to one of the heirs under a written agreement of all the heirs, who were of age, assigning their interests to such heir, the defense that there were no debts, and that the personalty had been rightfully assigned to defendant, was not a collateral attack on the order of the probate court directing the plaintiff to take charge of the estate.

Appeal from St. Louis circuit court; James E. Withrow, Judge.

Action by William C. Richardson, as administrator of the estate of Lillie Kate Fagin, deceased, against Nathan Cole and another, to recover property received by them as heirs of said deceased under a written agreement of all the heirs; no administration having been had. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Jas. A. Henderson and R. S. MacDonald, for appellant. Judson & Taussig, for respondents.

BURGESS, J.

On May 13, 1884, Lillie Kate Fagin died intestate and unmarried, the owner of personal property consisting of cash, notes, and bonds of the face value of $9,342.17, and the bonds in litigation, of the face value of $7,887, which had theretofore been placed by her father, Aaron W. Fagin, now deceased, in the hands of the defendant Nathan Cole, who had married her sister, to hold and invest for her. After the death of Lillie Kate Fagin, all of her heirs at law, except her father, Aaron W. Fagin (all being of age), by an instrument in writing of date July 16, 1884, agreed to and did transfer to Rachel G. Metcalfe, a sister of Lillie, and one of the defendants in this suit, all their right, title, and interest in and to the estate of said Lillie, and by said instrument directed the defendant, Nathan Cole, as agent and trustee of said Lillie, to pay over to said Rachel Metcalfe any and all moneys of the deceased, and to transfer to her any and all property of the deceased which he held for her, taking her receipt therefor. This instrument was executed by all the heirs at law of Lillie, except her father, Aaron W. Fagin; but it was executed with his knowledge and consent, and at his instance. The defendant Nathan Cole, acting under the authority of said instrument in writing, did on or about the 23d day of September, 1884, transfer and deliver to said defendant Rachel G. Metcalfe all the notes, cash, bonds, and choses in action then in his possession as the agent or trustee for said Lillie. On March 28, 1896, nearly 12 years after the death of said Lillie Kate Fagin and this distribution, William C. Richardson, the public administrator of the city of St. Louis, took out letters of administration upon the estate of Lillie Kate Fagin. As such administrator he instituted suit against the defendant Nathan Cole and the defendant Rachel G. Metcalfe to recover from them the personal estate belonging at her death to Lillie Kate Fagin. The defendants, besides pleading the statute of limitations of five years, set up in their separate answers the foregoing facts as a defense to plaintiff's petition. To this answer plaintiff demurred. This demurrer was overruled, and, plaintiff refusing to plead further, judgment was entered for the defendants. Plaintiff appeals.

It may be conceded at the outset that the legal title to personal property of a deceased person is in the administrator, who holds it in trust for heirs and legatees, and that he alone can sue for and recover the assets of such deceased person. But the mere legal title passes to the administrator. The equitable descends to the heirs or legatees, who are entitled to distribution. The defense interposed here is an equitable one, and sets up that there were no debts against the deceased, and that by agreement between those entitled to the property it had been transferred to one of their number, the defendant Rachel G. Metcalfe; and the effect of the demurrer is to admit these defenses to be true. But plaintiff contends that the defenses pleaded afford no barrier to the administrator's right of recovery, either at law or in equity. In support of this position, Bartlett v. Hyde, 3 Mo. 490; Naylor's Adm'r v. Moffatt, 29 Mo. 126; Smith v. Denny, 37 Mo. 20; McPike v. McPike, 111 Mo. 216, 20 S. W. 12; and Green v. Tittman, 124 Mo. 372, 27 S. W. 391,—are relied upon. But these decisions go no further than has already been conceded; that is, that the administrator is, under ordinary circumstances, entitled...