State ex rel. Deems v. Holtcamp

• Decision Date: 14 November 1912
• Citation: 151 S.W. 153,245 Mo. 655
• Parties: THE STATE ex rel. HARRY V. DEEMS et al. v. CHARLES W. HOLTCAMP, Judge of Probate, and AUGUSTUS ROSS, Administrator of Estate of ANNA DEEMS ROSS
• Court: Missouri Supreme Court

151 S.W. 153

245 Mo. 655

THE STATE ex rel. HARRY V. DEEMS et al. v. CHARLES W. HOLTCAMP, Judge of Probate, and AUGUSTUS ROSS, Administrator of Estate of ANNA DEEMS ROSS

Supreme Court of Missouri

November 14, 1912

Writ allowed.

Hiram N. Moore and Richard F. Ralph for relators.

(1) The petition of Augustus Ross, administrator, as filed in the probate court, is in such form that it is difficult to tell whether he asks the sale to pay indebtedness against the estate, or whether he seeks to obtain the sale by virtue of the provisions of Sec. 147, R. S. 1909. If the former, the court is clearly without jurisdiction to order the sale first, for the reason that there are no debts proven against the estate, remaining unpaid; and second, because no notice has been given or publication had, as is required by statute. R. S. 1909, Secs. 150, 151, 152; Church v McElhinney, 61 Mo. 540; Valle v. Fleming, 19 Mo. 454; Hutchinson v. Shelley, 133 Mo. 400; Taverbaugh v. Hawkins, 82 Mo. 183; Day v Graham, 97 Mo. 402; Patee v. Mowrey, 59 Mo 161. (2) If respondents rely upon section 147 to justify their action, the order of the court, authorizing the sale is nevertheless void. Section 147 provides that where a person dies leaving land encumbered by deed of trust or lien, or owning any equity of redemption, or leaving mortgaged or pledged personal property, and shall not have devised the same or provided for redemption thereof by will, the court shall have power "if in its judgment it will promote the interest of the estate and not be prejudicial to creditors," to order the executor to redeem the same out of the personal assets of the estate, "or to order the sale of other real estate to redeem such land or personal property so encumbered." The Legislature intended by this section to authorize the probate court, for the protection of the estate and creditors to order the sale of property that is clear when it becomes necessary to do so, in order to save some particular piece of property from being sacrificed. In other words, that if one particular piece of property is mortgaged and that mortgage is about to be foreclosed under such conditions that the property would be sacrificed, then he may, in his discretion, provided the good of the estate or the protection of creditors demanded, order other property either encumbered or sold. Such intent is clear from the very wording of the statute. The statute first treats of mortgaged property, and then for its protection under certain circumstances, authorizes the sale of other property. In this case there is no such other property as is contemplated by the statute. In other words, each and every piece comprising the entire estate of the deceased, is mortgaged and there is no other property that can be either sold or mortgaged in order to make redemption. A sale under such circumstances would simply mean the conversion of the assets of the estate from real estate holdings to cash, and the expenditure of that cash, by reason of which the administrator would be entitled to a large fee at the expense of the heirs. This property is computed to be worth from fifty to sixty thousand dollars. If converted into cash and disbursed by him, as is contemplated, his fee, at the regular per cent allowed administrators, would amount to from $ 2500 to $ 3000. The order of sale as made by the probate court is a sweeping order for the sale of the entire estate. The time to file claims against the estate has long since expired. No claim has been filed save that of Ross, which was disallowed. There are no debts against the estate and will be none, save and except that Ross prevails on his appeal to the circuit court; therefore it is apparent that the real purpose of the administrator in seeking the sale was not to redeem property, not to pay debts, but to provide a fund from which, in the event he did prevail in the circuit court, his claim could be satisfied. In addition thereto he would be entitled to a large fee, to which he is not now entitled, and would possibly discharge his individual liabilities on several notes, which otherwise might stand against him. Where, as in the case at bar, the entire assets of an estate are composed of several pieces of real estate, each and every one of which are incumbered, the administrator may sell, under proper order, such part or parts of the estate to pay debts or for the purpose of redemption, as may be necessary. For these purposes, and none other, may he sell the real estate. If, as in this case, the purpose is not to redeem or to pay debts, then such an order as was made by the probate court, of which we complain, was in excess of the court's jurisdiction, and therefore a usurpation of power by the court, and any acts of the administrator thereunder would be illegal as well. The fact that the incumbrances on the several properties had matured, or were about to do so, would not devolve the duty upon the administrator to sell all the properties or any one of them for the sole purpose of preventing a sale or sales under the incumbrances, and consequent loss, maybe, to the heirs. This was a matter to be anticipated by the heirs themselves, and it was for them, and not for the administrator, to protect them against possible loss.

Christian F. Schneider for respondents.

(1) The sole and only question presented by the issues in this proceeding is, "Was the order of sale made by the probate court null and void; that is to say, does a proceeding to sell the equities of redemption, where the estate has no other property out of which to pay the incumbrances on the property, require the proceedings necessary under Sec. 150, R. S. 1909? We respectfully represent that it does not. Garrett v. Bucknell, 64 Mo. 407. In that case a sale was made under section four (Wagn. Stat. 94), which is Sec. 147, R. S. 1909, and which is connected with and must be read with section 148, under which respondents claim said order of sale was made. But relators say the property is worth $ 50,000 to $ 60,000, and that the administrator expects to make his administrator's fee on its disbursements of $ 2500 and $ 3000, "and would possibly discharge his individual liabilities on several notes, which might otherwise stand against him," but which notes the record shows total only $ 10,500 exclusive of interest. Neither of these inconsistent contentions is correct. Two of the five tracts have been foreclosed under the deeds of trust on them and only the sum of $ 257.50 realized therefrom. This proves that a foreclosure sale under the deeds of trust would surely result in a sacrifice, and that it would be to the best interest of the estate and all concerned therein to make a sale of the equities in which the purchasers would have time and could arrange for renewal loans without the depressing effects of foreclosure advertisements going on. (2) Relators contend that notices should have been served on the heirs, an order made and the matter then continued to the next term as required when land is sold under section 150. This, under the exigencies of the case, was impracticable. The holders of the notes and deeds of trust were not obliged to wait. They could have foreclosed on advertising the sales for twenty days, long before the proceedings could have been had under Sec. 150, R. S. 1909. But the order was not made without notice to relators. They had actual notice and knowledge. Their motion to dismiss was filed July 11, 1911, the day after the administrator's petition was filed, and both the motion and the petition were continued by the court to the September Term, 1911, and they were in court, and on the day the order of sale was made the court inquired of relators if it were not a fact that there was imminent danger of the property being sacrificed and offering to hear testimony on that point, but that relators refused and stood on their motion to dismiss.

BROWN, J. Ferriss and Kennish, JJ., dissent, in opinion by Ferriss, J.; Valliant, C. J., concurs; Graves, Woodson, and Lamm, JJ., concur in the result, and express the further opinion that probate courts have no jurisdiction even with notice to order the sale of lands of deceased persons for purposes of partition.

OPINION

In Banc

Prohibition.

BROWN J.

-- Relators petition for a writ of prohibition against the respondents on the ground that the probate court is proceeding without jurisdiction in the matter related below. The following facts appear from the petition and return thereto:

Anna Deems Ross died intestate, without issue, in the city of St. Louis, in April, 1909. At the time of her death she owned five parcels of real estate in that city, each one of which was incumbered by a deed of trust to secure certain promissory notes executed by her jointly with her husband. In April, 1909, letters of administration on her estate were granted to Augustus Ross, her husband. She left as collateral heirs the relators, Harry W. Deems and Laura V. Deems. Subsequently, August Ross presented a claim for about $ 3000 against the estate, which, after due hearing, was disallowed in October, 1911, and an appeal taken to the circuit court, where it is now pending. No other claims are shown to have existed against the estate. On June 30, 1911, the respondent judge, on a petition filed by the administrator, entered an order of record directing the administrator to take possession and manage said real estate; which order was made under the provisions of the Act of 1911, known as section 139a, Laws 1911, page 80, the same being an amendment to Art. 6 of Ch. 2, R. S. 1909, and which reads as follows:

" Whenever letters of administration or testamentary shall have been granted on an estate, and it shall appear to the court or judge in vacation, that the decedent died...