Ridings v. Hamilton Savings Bank and Virgil Cash
| Decision Date | 02 March 1920 |
| Citation | 219 S.W. 585,281 Mo. 288 |
| Parties | HARRY E. RIDINGS, Administrator De Bonis Non of Estate of T. D. GEORGE, ORA LEE RIDINGS, BERTHA GEORGE RENTSCHLER et al. v. HAMILTON SAVINGS BANK and VIRGIL CASH, Appellant |
| Court | Missouri Supreme Court |
Appeal from Caldwell Circuit Court. -- Hon. Arch B. Davis, Judge.
Affirmed.
Johnson McAfee & W. W. Davis for appellants; J. D. Allen on brief.
(1) The daughters having placed their brother in a position to convey his share or interest in the estate to innocent parties, the loss should fall upon the children, the heirs of the estate they being the parties to the transaction who placed him in a position to impose upon innocent parties. Crippen v American Natl. Bank, 51 Mo.App. 508; Rossi v. Natl. Bank of Commerce, 71 Mo.App. 161. (2) The payment by the daughters into the hands of the administratrix a sum sufficient to pay all demands against the estate, was voluntary upon their part, they having made said payment with full knowledge of all of the facts and having done so without fraud, duress, coercion, or extortion; therefore, it cannot be recovered in this action. Carter v. Phillips, 49 Mo.App. 319; Ritchie v. Bluff City Lumber Co., 86 Ark. (3) The approval of the final settlement and discharge of the administratrix was a final judgment, upon which the world might rely. McDonald v. McDaniel, 242 Mo. 172; Milling & Elevator Co. v. Thomson, 246 Mo. 595. (4) There is no showing in this case that Harry E. Ridings was the duly and legally appointed administrator de bonis non of the estate; therefore, the circuit court was without jurisdiction to determine the issues in this case. State ex rel. v. Holtcamp, 266 Mo. 365. (5) The payment of all debts against the estate, including the debts owing by T. D. George, Jr., with full knowledge of all of the other heirs, and no claim of said heirs, either of advancement or subrogation having been made in the probate court, and final settlement having been had and the administratrix discharged, created the simple relation of debtor and creditor between T. D. George, Jr., and other heirs, and any amount owing by him was not a lien on the distributive share, unless made so by judgment. Wooldridge v. Scott, 69 Mo. 669; Price v. Courtney, 87 Mo. 387.
Bruce Barnett for respondents.
(1) All of the items charged in and by the decree against the interest of Hamilton Savings Bank (the interest of Virgil Cash as trustee for said bank) as successor in title to defendant T. D. George, Jr., are properly chargeable. Trabue v. Henderson, 180 Mo. 625; Woerner's Am. Law of Administration, sec. 564; Hopkins v. Thompson, 73 Mo.App. 401. (2) The fact that the heirs at law sold real estate of the deceased and turned over the proceeds to the administratrix, who used same to pay debts allowed against the estate, upon which debts the son was primarily liable and the estate liable only secondarily, only illustrates, emphasizes and in this case strengthens respondents' position, namely, that out of the proceeds of that sale the son has already received a part of his share in the estate, to-wit, to the extent that it was applied to the payment of the debts, which it was his primary duty to pay. (3) As between the estate and the creditors, the estate was liable upon the notes executed by deceased as surety as fully as if deceased had been principal upon said notes. A payment for which one is legally liable is not voluntary, and it has never been held that a surety must wait to be sued and be subjected to costs and expense to be entitled to exoneration as against the principal. (4) It would be a tremendous leap from a little premise to a great conclusion to say that respondents sold the real estate of their deceased father's estate to discharge the son's liability. The transaction must be rationally construed, to-wit, that they were aiding in the administration of their father's estate and hastening the day when the remaining real estate of the estate might be free from the lien of demands against the estate. There was nothing voluntary in the act. Respondents simply yielded to the inevitable. Real estate of the deceased had to be sold to pay the debts of the estate, and a purchaser appearing, they lent a willing hand. (5) A purchaser of an heir's interest in real estate of which the ancestor had died siezed, acquires no greater interest than that of the heir. (6) The appellant bank must be treated as having had knowledge of the facts as to the indebtedness of T. D. George, Jr., to the estate at the time the deed of trust was executed to the bank, because the bank did not allege, nor prove nor undertake to prove that it did not have such knowledge, and even if innocence or ignorance of the facts had constituted a defense to the allegations of respondents as to the charges against the bank's interest, the burden of proof would have been upon the one asserting innocence or ignorance of the facts as the basis of his rights. Halsa v. Halsa, 8 Mo. 304; Edwards v. Railway Co., 82 Mo. 101. And this rule applies with particular force in this case, in which the bank did not pay out or give up anything upon the strength of the deed of trust, but took same to secure a debt long antecedent. Brandom v. McCausland, 171 F. 402 (C. C. A.); Bradley v. Fuller, 118 Mass. 239; Austin v. Barrows, 41 Conn. 287.
SMALL, C. Brown and Ragland, CC., concur.
Appeal from the Circuit Court of Caldwell County.
This is a suit to partition certain lands amongst the heirs of T. D. George, Sr., deceased (two of whom are the married women named in the title to the case), and the defendants, Hamilton Savings Bank and Virgil Cash, who acquired the right, title and interest of T. D. George, Jr., the other heir.
T. D. George, Sr., the father, died intestate November 7, 1913. Ella George, his widow, was appointed administratrix November 15, 1913. She seems also to have been a party to this suit, but whether plaintiff or defendant, does not appear from the abstract of record. T. D. George, Jr., is also a party defendant. At the time of the father's death, the son owed him a promissory note, which was never paid, and, at the date of the decree, amounted to $ 1,461.50. The father had also signed notes for his son as security and on joint account, all of which were duly presented, proved and allowed as claims against the estate, and amounted to $ 8,389.43, which was paid by the administratrix. On September 3, 1915, T. D. George, Jr., and his wife, made a deed of trust to William H. McAfee, trustee, to secure the note of said George of that date to the defendant Savings Bank for $ 4,965.26. This note was given in renewal of a prior note for that amount then due. The new note, secured by the deed of trust, was payable six months after its date. The granting clause of the deed of trust was, "grant, bargain and sell, convey and confirm unto the said party of the second part, the following described real estate, situate in the County of Caldwell in the State of Missouri: All of his undivided right, title, share and estate in and to the following described property, to-wit: [here describing it]."
The deed of trust contained no express covenants of warranty or of title. The note not being paid when due, there was a trustee's sale, at which the defendant, Cash, became the purchaser, as trustee for the bank. The granting clause in the trustee's deed was, "bargain, sell and convey unto him, the said Virgil V. Cash, the real estate in said deed described, situate in the County of Caldwell and State of Missouri, to-wit: All the undivided right, title, share and estate of the said T. D. George, and Hazel George, his wife, in and to the following described property, to-wit: [here describing the property]."
To raise the money to pay the debts of the estate (there being insufficient personal estate), including those proved against the estate, for which the son was the principal debtor and primarily liable, the heirs of the estate, including the son, sold and conveyed certain other lands of the estate and paid over the money received therefor to the administratrix, who applied the same to the payment of the demands proved against the estate, including those for which the son was primarily liable above mentioned. The administratrix having thus fully paid all the obligations of the estate, filed a final settlement, which was duly made, and approved by the probate court August 12, 1915, when the administratrix was discharged. In October, 1915, the plaintiff Harry E. Ridings was appointed administrator de bonis non.
This suit was then commenced, returnable to the November Term, 1915 (or afterwards) of said court. The petition prayed, among other things, that the above sums paid by the administratrix on account of debts of the son proved against the estate should be charged against and deducted from his share of the estate in the hands of the defendants, Hamilton Savings Bank and Virgil Cash.
The answer pleaded that administration was duly had upon said estate and all claims against it paid. That Ella George, the administratrix, made final settlement, which was approved and said administratrix was discharged. That no assets were discovered after said final settlement, and there were no unpaid demands against said estate. That therefore the appointment of plaintiff Harry E. Ridings as administrator de bonis non was void, and he had no capacity to sue. That said sale by the heirs of other lands of the estate to raise money to pay the debts of the estate and their payment by the administratrix out of such moneys was a voluntary payment by them, and thereby said debts were fully discharged and paid, and if said T. D. George, Jr., was ever chargeable with any sum as advancements or as distributions...
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