Scudder v. Ames

• Decision Date: 23 December 1897
• Parties: Scudder et al., Executors of Henry Ames, v. Lucy V. S. Ames, Administratrix of Edgar Ames, Appellant
• Court: Missouri Supreme Court

43 S.W. 659

142 Mo. 187

Scudder et al., Executors of Henry Ames, v. Lucy V. S. Ames, Administratrix of Edgar Ames, Appellant

Supreme Court of Missouri

December 23, 1897

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Remanded (with directions).

Boyle & Adams and George W. Lubke for appellants.

(1) The partnership estate having received from Edgar Ames during his lifetime, on account of the partnership assets at Vicksburg on August 14, 1866, the sum of $ 39,523.61, such sum should be deducted from whatever amount is found to have been realized from the assets, and the administratrix should be required to account for and pay to the partnership estate only the balance remaining of the amount so realized after such deduction is made. (2) The administratrix is entitled to have the sum of $ 833.33 deducted from the charge against her of $ 3,323.33 as having been realized on the Dennis Fitzpatrick claim, because this sum was a reasonable and necessary expense attending the collection of the amount realized. (3) The advancements made by Edgar Ames to Turley Burney, Nichols and Porter after the death of Henry Ames should be repaid to him before any amounts collected from said parties should be applied to indebtedness due by these parties to the firm of Henry Ames & Company prior to Henry Ames' death: First. Because the subsequent advancements were made in pursuance of a previous agreement by the firm of Henry Ames & Company that they should be made; and second because they were made in good faith for the purpose of securing the collection of the indebtedness of these parties due to Henry Ames & Company at the time of Henry Ames' death; and hence should be first repaid as expenses legitimately incurred in collection of such indebtedness. (4) The withdrawal of Edgar Ames out of the partnership funds for his individual use of a sum which would make the entire amount so withdrawn by him equal to the amount which Henry Ames had withdrawn during the year of his death for his individual use was warranted, for the reasons: First. That they were equal partners in the business; second, that it was understood between them at the beginning of the year that neither should withdraw for his own use more than the other. (5) The charge against the administratrix of interest for four years on the value of the stock of goods and money on hand at Vicksburg at the time Henry Ames died, is without warrant in law. (6) The credits taken by the administratrix for amounts paid to the Revenue Collector as United States income tax for the years 1868 and 1869 should have been allowed: First. Because under the Income Tax law she was required to make return of the income of the estate in her hands as such administratrix and to pay the tax thereon; second, because said amounts were paid under demand and threat of the United States collector, and upon advice and direction, given in good faith, of counsel learned in the law; and were paid for the purpose of avoiding additional expense and penalty imposed by the law for the failure to pay the same. (7) The full amount of expenses incurred by the administratrix for attorneys' fees and other costs and expenses attending the litigation over the administration accounts should have been allowed to her, for the reasons: First. That such expenses are shown to have been reasonable and necessary. Second. That such expenses were incurred in good faith for the purpose of reaching a final settlement of the exceptions filed thereto by the executors of Henry Ames and which are shown in part to have been without warrant in law or fact, and, as to such part as has been sustained, it is shown they were so involved in doubt and uncertainty as to justify a refusal to acquiesce in them until a judicial determination of them had been secured. (8) The administratrix is entitled under the law to commission as well on the amount of commissions disbursed to her as upon amounts disbursed for other purposes, for the reason that the commission of five per cent is not limited to disbursements as such, but is allowed by express provision of statute on all "personal property, and on money arising from the sale of real estate." (R. S. 1889, sec. 222.)

James O. Broadhead, Douglas & Scudder and Campbell & Ryan for exceptor and respondent.

(1) The court committed no error in charging the administratrix with the $ 10,147.73 withdrawn by Edgar Ames from the partnership assets in order to equalize the sum withdrawn by him in that year with the amount withdrawn by Henry Ames prior to his death. The administratrix, in making settlement for Edgar Ames, should have charged him with that amount. Scudder v. Ames, 89 Mo. 496; Geddes v. Wallace, 2 Bligh, 270; Const v. Harris, T. & R. 523; Winchester v. Glazier, 152 Mass. 316; Lindley on Partnership [Ewell's Ed.], 408; Gaslight Co. v. St Louis, 46 Mo. 121; Chicago v. Sheldon, 9 Wall. 50. (2) The court committed no error in charging the administratrix with the amount paid by her as United States income tax, there being no law imposing an income tax upon an estate in process of administration. 13 U. S. Stat. at Large, p. 282, sec. 118; Ib. (Amendment), p. 480; Mandell v. Pierce, 3 Cliff. 134; In re Peyser, 5 Dem. 244. An administrator can not justify an illegal and improper disbursement of the funds of an estate in his charge by plea that it was done by advice of counsel. Doyle v. Blake, 2 Sch. & Lef. 243; Peers v. Ceeley, 15 Beav. 209; In re Knight's Trusts, 27 Beav. 49; Devey v. Thornton, 9 Hare, 222; Boulton v. Beard, 3 DeG. M. & G. 608. (3) The court committed no error in refusing to allow the credit claimed by the administratrix for commissions upon a sum of money which never came to her hands. G. S. 1865, p. 506, sec. 9; Scudder v. Ames, 89 Mo. 512; Hitchcock v. Mosher, 106 Mo. 578. (4) The court committed no error in refusing to allow the credit claimed by the administratrix for commissions for the collection of rents. Scudder v. Ames, 89 Mo. 511. (5) The court committed no error in charging the administratrix with the amount received by her as the "Fitzpatrick account." Where an administrator procures an order to sell an asset of an estate in his charge upon his representation to the court that such asset is uncollectible and upon such sale buys the asset himself and procures the sale to be approved, though in the meantime he has learned that such asset is good, he will nevertheless be charged in his accounts with the estate with the value of such asset. Cadwalader's Appeal, 64 Pa. St. 293; Dundas's Appeal, Ib. 325; Tennant v. Trenchard, L. R. 4 Ch. Ap. 537. (6) In a trial de novo, such as is provided for by the statutes of Missouri in case of appeal from probate, the whole case is to be tried anew, and the judgment of the probate court is not to be considered. R. S. 1879, sec. 299; In re Weatherhead, 53 Vt. 653; Evans v. Taylor, 28 W.Va. 184; Paine v. Cowdin, 17 Pick. 142; Earle v. Hart, 89 Mo. 263. In an appeal from the probate court on a final settlement, the administrator occupies the position of plaintiff, and the case to be tried is that made by the settlement. Emmons v. Gordon, 125 Mo. 636; Tell Furniture Co. v. Stiles, 60 Miss. 849; Pettingill v. Pettingill, 64 Me. 350; In re Sanderson, 74 Cal. 199; Heward v. Slagle, 52 Ill. 336; In re Est. of Meeker, 45 Mo.App. 195; House v. Duncan, 50 Mo. 453; Turner v. Northcutt, 9 Mo. 249; Philips v. Bliss, 32 Mo. 427; Compton v. Parsons, 76 Mo. 455; Crispen v. Hanovan, 86 Mo. 160; Needles v. Burk, 98 Mo. 474. (7) The court erred in allowing the administratrix to take credit in her settlement for the account of Garrard, Sells & Company, $ 523,819.51, and the account of Garrard & Craig, $ 50,000, as being no "assets in fact," when the proof showed that such items had been put in the inventory as a cover for other assets, which other assets were not accounted for. Williams v. Petticrew, 62 Mo. 461; Julian v. Abbott, 73 Mo. 580; Booker v. Armstrong, 93 Mo. 49. (8) The court erred in allowing the administratrix to take credit for any amount on account of alleged depreciation below cost price of goods belonging to the partnership estate which Edgar Ames individually bought for himself as surviving partner without having them inventoried or appraised. 1 Story's Eq. Jur., p. 328; Bispham on Eq. [5 Ed.], sec. 94. (9) In settlement of the Burney account the administratrix took real estate in Louisiana. She took the title in her own name, gave away a portion of the land and laid out a town on the remainder, all without any authority from the probate court. After the settlement of this account she reported it to the probate court as uncollected and uncollectible, procured an order of sale, and bought it herself; the sale, however, was not approved. Having so settled the account, she should be charged with the amount thereof just as if she had received it in money. 2 Williams on Executors, 1898; Weir v. Tate, 4 Ired. Eq. 264; Brownlee v. Lockwood, 20 N.J.Eq. 239; Chandler v. Stevenson, 68 Mo. 453. (10) The court erred in allowing the administratrix to take credit for the notes belonging to the partnership estate shown in the Webb Exhibits without requiring her to show that she used diligence in endeavoring to collect them, and that they are uncollectible, and without requiring her to produce the notes as vouchers. (11) The court erred in refusing to charge the administratrix with the value of the good will of Henry Ames & Company which was appropriated by Edgar Ames, she having failed to charge him therewith in the settlement made by her of his administration of the partnership estate. Story on Partnership, sec. 99; Boon v. Moss, 70 N.Y. 473; Churton v. Douglas, Johnson, p. 188; Smith v. Everett, 27 Beav. 446; Case v. Abeel, 1 Paige, 393; Dougherty v. Van...