Roberts v. Bartlett

• Decision Date: 02 June 1887
• Citation: 26 Mo.App. 611
• Parties: JOHN ROBERTS ET AL., Respondents, v. LUCY F. BARTLETT ET AL., Appellants.
• Court: Missouri Court of Appeals

26 Mo.App. 611

JOHN ROBERTS ET AL., Respondents, v. LUCY F. BARTLETT ET AL., Appellants.

Court of Appeals of Missouri, St. Louis.

June 2, 1887

APPEAL from the Clarke County Circuit Court, BEN. E. TURNER, Judge.

Affirmed.

REED & WHITESIDE, with N. F. GIVENS and WM. BERKHEIMER, for the appellants: " " " " All the facts constituting the cause of action must be stated." Battell v. Crawford, 59 Mo. 215; Wiggins v Graham, 51 Mo. 17; Pier v. Henrichoffen, 52 Mo 333; Curren v. Downs, 3 Mo.App. 468; Turley v Edwards, 18 Mo.App. 676; Kerr v. Simmonds, 82 Mo. 275. The probate court has original exclusive jurisdiction. Titterington v. Hooker, 58 Mo. 593; Pierce v. Calhoun, 59 Mo. 271; Chandler v. Stevenson, 68 Mo. 450; Julian v. Ward, 69 Mo. 153; French v. Stratton, 79 Mo. 560. The allegations in the petition are not sustained by the evidence, even if the facts proved authorized the administrators to pay the claims and be subrogated; for the reason that the court must find the facts set out in the petition to be true, and base its decree upon them. Story's Eq. [8 Ed.] p. 251, sect. 257; Ellis v. Railroad, 17 Mo.App. 126; Maguire v. Taylor, 47 Mo. 115; McKnight v. Bright, 2 Mo. 110.

ANDERSON, DAVIS & HAGERMAN, for the respondents: The bill of exceptions was insufficient, as not identifying the papers called for. Lehew v. Morrison, 17 Mo.App. 633; Walker v. Stoddard, 31 Mo. 123; Railroad v. Wagner, 19 Kan. 335; Harmon v. Chandler, 3 Iowa 152; Hill v. Holloway, 52 Iowa 678; Hicks v. Person, 19 Ohio 446; Sexton v. Willard, 27 Wis. 465; Bank v. Mosely, 19 Ala. 222; Looney v. Bush, Minor, 413; Garlington v. Jones, 37 Ala. 240; Tuskaloosa County v. Logan, 50 Ala. 503; Bradley v. Andress, 30 Ala. 80; The State v. Huff, 11 Nev. 17; The State v. Larkin, 11 Nev. 314; Busby v. Finn, 1 Ohio St. 409; Irwin v. Smith, 72 Ind. 482; Mills v. Simmonds, 10 Ind. 464; Calvert v. Makepeace, 8 Blackf. 575; Board v. Embree, 7 Blackf. 461; Spears v. Clark, 6 Blackf. 167; Huff v. Gilbert, 4 Blackf. 19; The State ex rel. v. Noggle, 16 Wis. 333; Frost v. Bates, 16 Vt. 145, and note. It affirmatively appears that all the evidence is not preserved and hence the decree can not be reviewed. The State ex rel. v. Kamp, 8 N.E. 714; Collins v. Collins, 100 Ind. 266. An administrator, who, in good faith, pays the debt of an estate, may be subrogated to the rights of the creditor. Smith v. Hoskins, 7 J. J. Marsh. [Ky.] 502; Pea v. Waggoner, 5 Hayw. 242; Trumbo v. Sorrency, 3 B. Mon. [Ky.] 284; Williams v. Williams, 2 Dev. Eq. 69; Watkins v. Dorsett, 1 Bland Ch. 530; Collinson v. Owens, 6 G. & J. 4; Kinney v. Harvey, 2 Leigh [Va.] 70; Pendergass v. Pendergass, 1 S.E. 45; Wernecke v. Kenyon, 66 Mo. 275; Van Bibber v. Julian, 81 Mo. 618.

OPINION

ROMBAUER J.

This is a suit in equity by administrators of a decedent's estate, in which they set up that they have advanced money out of their own funds to pay allowed demands against the estate, believing at the time that the personal assets would be sufficient to make good these advances, and seeking to be subrogated to the rights of the creditors whose demands they have thus satisfied, and to have certain lands of the decedent sold to reimburse them. The petition does not state that the plaintiffs paid any particular sum or sums to any particular creditor or creditors, nor does it pray that they be subrogated to the rights of any particular creditor or creditors in respect of any particular debt or debts due by the estate so taken up by them. But it recites, " that the petitioners, believing that the personal estate of the deceased was more than sufficient to pay off and satisfy the expense and cost of administration and the debts of the deceased, with what was realized from the sale of the real estate aforesaid, in good faith, paid on the debts of the deceased, from their own money, the sum of two thousand dollars, costing them the sum of two thousand dollars, so overpaid by your petitioners, so paid on indebtedness which was in no wise cancelled, but the same was and became the property of your petitioners, so to be paid by the estate of William Bartlett, deceased; and your petitioners, thereby, became the owners of and subrogated to the rights of the different creditors of such deceased," etc. The prayer for relief is in the following words: " Your petitioners ask that an account be taken of their administration; and that interest be allowed on such sums overpaid by them; and that for the total amount overpaid they have a decree subjecting said real estate to the payment of such sums with interest; that by such decree such real estate be ordered sold and the proceeds thereof applied to your petitioners' claim, so ascertained, and for such other relief as to equity and good conscience appertains."

The defendants, who are the widow and heirs of William Bartlett, deceased, first filed a demurrer to this petition, averring its insufficiency, for the following reasons: (1) Because the petition does not contain facts sufficient to constitute a cause of action. (2) Because the plaintiffs do not allege any facts in their petition authorizing them to be subrogated to the rights of any of the creditors of the estate of William Bartlett. (3) Because the petition contains no facts sufficient to authorize the court to grant the relief prayed for, or any other relief. (4) Because, from the facts stated in the plaintiffs' petition, they are not entitled to any accounting, as asked for in their petition.

This demurrer was overruled by the court, and the defendants thereupon filed their answer, in which they admitted the death of the decedent, and that the plaintiffs were appointed his administrators, but denied the insufficiency of personal assets, and denied that the plaintiffs, out of their own means, paid two thousand dollars, or any other sum, towards the taking up of the debts of the decedent.

The defendants further averred that the allowances against the estate, which the plaintiffs claimed to have discharged with their own means, were allowances obtained by the fraudulent combination of the administrators with the claimants, and were not debts justly owing by the decedent. The answer also denied the jurisdiction of the court in the premises over the subject matter.

The new matter in the answer was traversed by reply. The hearing of the case resulted in a decree in the plaintiffs' favor; the court finding, among other things, " that the plaintiffs, in good faith, for the benefit of the estate and not officiously, paid off with their private funds debts due from the said William Bartlett, which had been duly allowed in the sixth class of demands, to the amount of $1,716.95, and they are entitled to interest thereon, at the rate of six per cent. per annum, since the twenty-second day of November, 1883, making in all $1,743.85, and by such payments became the owners of such claims and subrogated to the rights of the general creditors."

The court thereupon made an order for the sale of the real estate as prayed for. The defendants prosecute their appeal from this decree.

The first question to be determined is, whether the court erred in overruling the defendants' demurrer. It will be seen that, although the demurrer states four distinct grounds, the three last are mere amplifications of the first, and that the pleading is simply a general demurrer on the ground that the petition does not state facts sufficient to constitute a cause of action.

The statute provides, that " the demurrer shall distinctly specify the grounds of objections to the pleadings; unless it does so, it may be disregarded." Rev. Stat., sect. 3516. The supreme court, at an early day, in construing this statute, held that the word, " may," in this connection, means " should," and that the court will only look to the objections specified. McClurg v. Phillips, 49 Mo. 316; Alnutt v. Leper, 48 Mo. 321. If, therefore, the petition in this case does state facts sufficient to constitute a cause of action, even though it may be liable to other objections, the court committed no error in overruling it. The only question, therefore, to be determined on this branch of the case is, whether the petition does state facts sufficient to constitute a cause of action; that is to say, whether it states facts enough to entitle the plaintiffs to any equitable relief.

That the right to be subrogated is an equitable right to be enforced in equity is clear (3 Pomeroy Eq. Jur., sect. 1419), and that this right exists in favor of an administrator who, out of his individual means, pays, in good faith, debts of the estate, must be conceded upon authority. Smith v. Hoskins, 7 J. J. Mar. 502; Trumbo v. Sorrency, 3 B. Mon. 284; Williams v. Williams, 2 Dev. Eq. 69; Kinney v. Harvey, 2 Leigh (Va.) 70; Livingston v. Newkirk, 3 Johns. Ch. 317; Watkins v. Dorsett, 1 Bland Ch. 530; Gist v. Cockey, 7 Har. & J. 139; Collins v. Owens, 6 Gill & J. 9; Ex Parte Allen, 15 Mass. 58; Pea v. Waggoner, 5 Haywood 242; Lyon v. Vick, 6 Yerg. 42; Surber v. Kent, 5 W.Va. 96. It is evident, therefore, that, whether the petition is viewed in the light of merely seeking a subrogation in equity, on the part of the plaintiff administrators, to the rights of creditors whose claims against the estate they have thus paid, or whether it is viewed in the light of seeking the establishment of an independent equity against the lands of the decedent, it does state facts sufficient to constitute a cause of action. Presbyterian Church v. McElhinney, 61 Mo. 540; Wernecke v. Kenyon, 66 Mo. 275; Van Bibber v. Julian, 81 Mo. 618.

The court, therefore, committed no error in overruling the defendants' demurrer.

A question to be decided in connection with the foregoing is whether the court erred in entertaining jurisdiction of...