Silsby v. Wickersham

• Decision Date: 07 April 1913
• Citation: 171 Mo. App. 128,155 S.W. 1094
• Parties: SILSBY v. WICKERSHAM et al.
• Court: Missouri Court of Appeals

155 S.W. 1094

171 Mo. App. 128

SILSBY v. WICKERSHAM et al.

Springfield Court of Appeals. Missouri.

April 7, 1913.

Rehearing Denied April 26, 1913.

1. EXECUTORS AND ADMINISTRATORS (§ 430) — LIABILITY OF ADMINISTRATOR — TAKING POSSESSION OF PROPERTY NOT BELONGING TO THE ESTATE — ACTIONS.

Where property, not belonging to the estate, is taken possession of and held in good faith by the administrator as property of the estate, replevin lies by the owner against the administrator in his official capacity.

2. EXECUTORS AND ADMINISTRATORS (§ 430) — SALE OF PROPERTY NOT BELONGING TO THE ESTATE — EQUITABLE RELIEF.

Where an administrator took possession of property not belonging to the estate and sold it as part of the estate and received and used the proceeds, equity will grant relief to the owner by decreeing payment for the property out of the funds of the estate.

3. EXECUTORS AND ADMINISTRATORS (§ 430) — SALE OF PROPERTY NOT BELONGING TO THE ESTATE — EQUITABLE RELIEF.

A wholesale dealer, who had sold goods to a retailer doing business under a firm name, sold goods ordered in the retailer's firm name knowing of the retailer's death, and that the possession of the business and the powers of the administrator were as administrator only. The administrator was not guilty of any misrepresentation or concealment of the facts to get possession of the property, either for himself, or the estate. Held, that the wholesale dealer parted with both the possession and ownership of the goods, and could neither replevy them nor seek relief in equity on the theory of a resale of the goods by the administrator for the use of the estate.

4. EXECUTORS AND ADMINISTRATORS (§ 93) — AUTHORITY OF ADMINISTRATOR — PURCHASE OF PROPERTY.

An administrator, who continues his intestate's retail mercantile business, may not bind the estate by purchasing and agreeing to pay for merchandise for resale in the business.

Appeal from Circuit Court, Stone County; John T. Moore, Judge.

Action by H. D. Silsby against Nellie E. Wickersham and another. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

J. William Cook, of Crane, for appellant. Rufe Scott, of Galena, and Charles L. Henson, of Mt. Vernon, for respondents.

STURGIS, J.

Stranded on a demurrer in the trial court, the plaintiff brings this case here by appeal. The sole question is whether or not the petition states facts sufficient to constitute a cause of action. As presented here the case is, in effect, against the estate of James E. Wickersham, deceased. The plaintiff alleges that he is and has been doing business as a wholesale hardware merchant; that said James E. Wickersham was engaged in like business at retail under the firm name, and was the sole owner, of the Crane Hardware Company; that he died in 1909, and his widow, Nellie E. Wickersham, was appointed administratrix of his estate; that she took possession of the stock of goods of the Crane Hardware Company and continued to operate said business and sell goods at retail; "that between the 18th day of October, 1909, and the 1st day of July, 1910, the said Nellie E. Wickersham ordered, in the name of the Crane Hardware Co., for the Crane Hardware Co., certain goods, wares, and merchandise valued at $102.55, as is shown by the itemized statement hereto attached; that, relying on said orders being legally made, the plaintiff delivered to said Crane Hardware Co. and Nellie E. Wickersham the goods, wares, and merchandise so ordered; that plaintiff made repeated demands upon the said Crane Hardware Co. and Nellie E. Wickersham for payment therefor, which has been and now is refused."

The petition further states that said administratrix sold many articles belonging to said estate, inclusive of part of the articles described in said exhibit, and that she used the moneys so received therefor in paying the obligations of said estate; that thereafter, in 1910, her letters of administration were revoked, and that John S. May, public administrator of Stone county, Mo., succeeded her in that office; that said May, as administrator, sold the residue of said hardware stock, inclusive of the unsold portions of the goods described in plaintiff's exhibit, and received and has on hand the purchase price, amounting to $3,200; that said May, as administrator, is about to make final settlement of said estate, and does not intend to pay plaintiff for his goods, but does intend to distribute said estate to the creditors of the estate...