Rozelle v. Harmon

• Decision Date: 19 March 1888
• Parties: EB. ROZELLE, Respondent, v. JACOB HARMON, Appellant.
• Court: Kansas Court of Appeals

29 Mo.App. 569

EB. ROZELLE, Respondent, v. JACOB HARMON, Appellant.

Court of Appeals of Missouri, Kansas City.

March 19, 1888

APPEAL from Holt Circuit Court, HON. CYRUS A. ANTHONY, Judge.

Reversed and petition dismissed.

Certified to Supreme Court.

Statement of case by the court.

This is an action by which plaintiff seeks to hold defendant liable as an executor de son tort.

1. The petition charges that, on the twenty-fourth day of March 1880, one B. W. Ross executed his note to R. H. Russell for one hundred and seventy-five dollars, due in one year, with plaintiff and J. D. Goodpasture as sureties, with ten per cent. interest, to be paid annually.

2. That Ross died in July, 1884, leaving the note unpaid; that at the time of his death he was owner and possessed of a large amount of personal property, consisting of hogs, horse and buggy, library, surgical instruments, corn, money, notes and book accounts, and assets, amounting in the aggregate to some fifteen hundred dollars; that Ross was indebted at the time of his death for the note given to Russell, aforesaid besides some other small amounts.

3. That defendant, immediately after the death of Ross, took possession and charge of the property aforesaid, of which Ross died seized, sold and converted it into money and paid part of the indebtedness of Ross, but refused to pay said note to Russell or any part, although he had ample means of said deceased, Ross, with which to have paid the same??

4. That plaintiff, as security, paid the amount of said note ($210.25) to said Russell on the twenty-sixth day of August 1885.

5. That defendant, by his wrongful acts, by taking charge of the property and assets of said deceased, converting the same into money, and failing and refusing to pay off the indebtedness of said deceased, became and is liable to plaintiff for said sum of $210.25, with interest at six per cent. from the twenty-sixth day of August, 1885.

The answer admitted that said Ross died on or about the twelfth day of August, 1884; and stated that he left a wife, the daughter of defendant, who has made her home with defendant's family since the death of her husband; that he gave to his said daughter at different times while she lived with said Ross, money and property of the value of over one thousand dollars, which money and property were used and held as the sole and separate property of said wife by agreement between her and her said husband; that a part of said property, and other property, the proceeds and earnings due and owing to her as the wages of her separate labor, were still owned and possessed by her at the death of her husband; that defendant, at the request of his said daughter and of her agreement, and not otherwise, assisted her in the management and disposal of a part of said property since the death of her said husband; that said Ross had no property of any kind, except a few books and surgical instruments of little or no value; that defendant at no time took charge of, sold, or attempted to sell or dispose, of any of the effects of said deceased, Ross.

The plaintiff recovered judgment; and defendant has appealed.

L. R. KNOWLES, JOHN EDWARDS, and H. S. KELLEY, for the appellant.

I. The court erred in refusing the instruction in the nature of a demurrer to the evidence, for the reason that the petition did not state a cause of action against the defendant, nor did the evidence establish any liability against him for which the plaintiff could maintain this suit. There was no privity between plaintiff and defendant. The defendant was not a party to the Ross note which plaintiff paid, and he made no promise that could be enforced. But the plaintiff seeks to hold defendant liable as an executor de son tort, i. e., " as one who, without being executor, etc., intermeddles or collects debts due to deceased," etc. Swift v. Martin, 19 Mo.App. 488; 1 Williams on Executors, 148.

II. We do not deny but one may be guilty of such acts as would render him liable as an executor de son tort, not to a creditor of the deceased, but to the rightful executor or administrator of the estate. Croslin v. Baker, 8 Mo. 437; Graves v. Poage, 17 Mo. 91; Magner v. Ryan, 19 Mo. 196. And such liability would be sustained as to property which could not be recovered or made applicable to the payment of general creditors, as where the defendant was a fraudulent purchaser from the deceased. Simonton v. McLain, 25 Ala. 353; Foster v. Nowlin, 4 Mo. 18.

III. Our system of administration contemplates that estates shall pass through the hands of legal representatives, and that the property and assets of the estate shall be applied to the payment of debts of the same class without partiality or preference. State ex rel. v. Moore, 18 Mo.App. 411. In speaking of this system our Supreme Court says: " That the simple yet effective provisions of our administration law, whereby the whole estate of a deceased is subjected to the payment of his debts, were designed to supersede the cumbrous machinery of the common law, and afford an ample and complete remedy in themselves. Our probate courts were established with extensive powers and jurisdictions, for the purpose of doing everything necessary to the full and final administration of an estate, * * * in general, to do everything essential to the final settlement of the affairs of the deceased, and the claims of creditors against the estate," etc. Pearce v. Calhoun, 59 Mo. 271; Titterington v. Hooker, 58 Mo. 593. To sustain this action would contravene the scheme and policy of our statute, and place an entire estate at the disposal of a single creditor, with no responsibility to any court or persons, for in such case the judgment is executed for the sole benefit of the creditor suing, to the exclusion of all other creditors. Toll. Exr., 472, note 1.

IV. We have discovered that in those states in which the statutes have attempted to place creditors upon an equality in the matter of payment, the courts have declared that there can be no such person as an executor de son tort in the sense of the English law. Dixon v. Cassell, 5 Ohio 533; Fox v. Van Norman, 11 Kan. 214; Barasien v. Odenn, 17 Ark. 123; Rust v. Wetherington, 17 Ark. 129; Ausley v. Baker, 14 Tex. 607; Green v. Rugeley, 23 Tex. 539; Pryor v. Downey, 50 Cal. 400; 3 Redfield on Wills, 21.

V. The Missouri statute provides ample means for compelling the delivery of any property belonging to a decedent to his personal representatives. Rev. Stat., sec. 75; Laws Mo. 1881, 32; Kelley's Prob. Guide (Ed. 1884) sec. 237. Any creditor may take out letters, if those having the prior right failed to do so (Rev. Stat., sec. 9); or the estate may be placed in the hands of the public administrator at the instance of any creditor. Rev. Stat., sec. 306. And our statute establishes a rule of uniformity and equality in the payment of debts, by which all creditors of the same class stand upon equal footing.

VI. The instruction asked by defendant should have been given, and those asked by plaintiff should not have been given, because, unless the matter complained of was tortious,--a trespass,--defendant was not guilty as executor de son tort. If he had an interest in the property as partner, or joint owner, or took it under a claim of right, he was not chargeable as executor in his own wrong. Cook v. Sander, 15 Rich. (S. C. Law) 63; Williams' Executors (5 Ed.) 229, 231, and notes; Deasler v. Edwards, 5 Ala. 31; Leach v. House, 1 Bailey 42.

VII. The instructions were contradictory, inconsistent, and calculated to mislead the jury, and this is reversible error. Frederick v. Algaier, 88 Mo. 598; Price v. Railroad, 77 Mo. 508; Type Foundry v. Pub. Co., 3 Mo.App. 142.

VIII. The verdict was against the evidence. The horse and buggy and harness, were clearly her separate estate. A few small articles were disposed of by the widow and her father, the defendant as her agent, and they paid all that was realized from that source, and more, on debts, leaving as the only property upon which deceased could have had any claim, the half of the corn, worth three hundred dollars, and the half of the hogs sold after fatted for $277.50, making a total of $577.50. After deducting her dower of four hundred dollars, there would be only $177.50, and she was entitled to one year's provision. Rev. Stat., secs. 105-7, 257; Kelly's Prob. Guide, sec. 231. If such grain, meat, vegetables, groceries, etc., were not on hand the probate court was bound to make her a reasonable allowance out of the personal assets to supply the deficiency. If the estate did not exceed the amount the widow was entitled to, no letters should be granted. Rev. Stat., sec. 2.

IX. No person, not even plaintiff himself, cared to take out letters, and for the very good reason that, after the widow had been accorded her rights under the law, there would have been nothing to administer. Under such circumstances, defendant could not be liable as executor de son tort to the plaintiff, or even to an administrator. Craslin v. Baker, 8 Mo. 437. We submit that the case should be reversed, and the cause dismissed by this court.

E. VAN BUSKIRK and T. C. DUNCAN, for the respondent.

I. The court properly refused defendant's instruction in the nature of a demurrer to the evidence. The defendant was an executor de son tort, by reason of his intermeddling with the estate of Ross, and liable to a creditor as well as to the right executor. 1 Williams on Executors, (6 Am. Ed.) top page 5, 296, 298, 305, 309; Foster v. Nowlin, 48 Mo. 18; Craslin v. Baker, 8 Mo. 437; Graves v. Poage, 17 Mo. 91; Magner v. Ryan, 19 Mo. 196; Swift v. Martin, 19 Mo.App. 488; McMeekin v. Hynes, 15 Rep. 655; Kelly's Prob. Guide, sec. 146.

II. Under our system of jurisprudence the common...