State ex rel. L. Bauman Jewelry Co. v. Taylor

• Decision Date: 25 May 1903
• Citation: State ex rel. L. Bauman Jewelry Co. v. Taylor, 74 S.W. 1032, 100 Mo.App. 481 (Kan. App. 1903)
• Parties: STATE OF MISSOURI ex rel. L. BAUMAN JEWELRY COMPANY, Appellant, v. CHARLES L. TAYLOR et al., Respondents
• Court: Kansas Court of Appeals

74 S.W. 1032

100 Mo.App. 481

STATE OF MISSOURI ex rel. L. BAUMAN JEWELRY COMPANY, Appellant, v. CHARLES L. TAYLOR et al., Respondents

Court of Appeals of Missouri, Kansas City

May 25, 1903

Appeal from Pettis Circuit Court.--Hon. Geo. F. Longan, Judge.

REVERSED AND REMANDED.

STATEMENT BY BROADDUS, J.

This is a suit by the appellant against Charles L. Taylor administrator of the estate of Charles G. Taylor, deceased and his bondsmen, James H. Doyle and W. H. Powell, Jr., on a demand of the appellant duly presented and allowed against the estate of Charles G. Taylor, deceased, by the probate court of Pettis county, Missouri, on the 18th day of March 1895, in the sum of $ 1,270.58, with interest thereon at the rate of six percent per annum from the date of allowance, and assigned to the fifth class.

The plaintiff, as breaches of the bond, in its petition alleges That the defendant Charles L. Taylor, administrator of the estate of Charles G. Taylor, deceased, received, from cash on hand, on account of sale of personal property belonging to said estate, debts due and collected, and rents collected, the sum of $ 8,681.58; that out of the sum so received by him he misapplied and misappropriated $ 3,682.12, in the payment of interest on fifth class demands against said estate, which demands were secured by collateral security, and mortgages or deeds of trust on real estate, without an order of distribution from the probate court and to the exclusion of the demand of plaintiff. That out of money so received by him, the said Charles L. Taylor, as such administrator, expended for improvements and repairs of real estate of the deceased, the sum of $ 1,028.12, without an order from the probate court, and to the prejudice of the creditors of the estate and particularly the plaintiff. That out of the money so received by him the said Taylor, as administrator, expended the sum of $ 528 in payment of dues on building and loan stock belonging to said estate, without an order from the probate court, and to the prejudice of this plaintiff, etc.; that out of such money so received by said Taylor, he misapplied and misappropriated the sum of $ 400 in payment of a note of said amount to the Citizens National Bank, without an order from the probate court, and without said demand being probated, allowed and classified, to the prejudice and exclusion of the demand of this plaintiff, etc.; that he misapplied and misappropriated the sum of $ 100 in payment of an account of M. Benjamin, without said account being first probated, allowed and classified, etc.; that he had been guilty of waste and mismanagement of said estate, in that he continued to pay out of the cash assets of said estate in dues on building and loan stock, and in failing to cancel said stock; that said Taylor, as such administrator, wrongfully and without authority of law paid E. G. Cassidy $ 3.50, and other claims aggregating $ 46.25, together with $ 200 to Mary V. Anderson on note of decedent and $ 247.40 to Charles L. Taylor for balance on goods, which said several claims were never legally presented as demands against said estate, were never allowed or classified by the probate court of Pettis county and did not constitute any legal demands against said estate, and their payment by said administrator was a misapplication and misappropriation of the funds of said estate and constitute gross mismanagement to the injury of the plaintiff. That said defendant Taylor, as such administrator, had been guilty of waste and mismanagement of said estate in that he petitioned the probate court for an order to sell at private sale, to pay the debts of said estate, a stock of jewelry and a safe, which were appraised at $ 3,300; that the court granted his said prayer and entered of record an order of sale empowering him to sell said stock and safe at private sale, on twelve months time, the best terms attainable, not less than the appraised value of said property, and if sold on time to be secured by solvent notes of good and sufficient security; that defendant, as such administrator, pursuant to said order, sold said stock of jewelry and safe to Mrs. Mary V. Anderson, a sister of the defendant, the administrator, at the price and sum of $ 3,311.99, on twelve months time and delivered said stock of jewelry and safe to the said Mrs. Mary V. Anderson and T. B. Anderson, her husband; that he collected on account of said goods only $ 533; that thereafter he repossessed himself of the remnant of said stock of jewelry and appropriated the same to his use and released the said Mary V. Anderson from the payment of the balance due on said notes; that thereby the estate lost $ 2,778.49, etc. The petition further alleges that out of the sum of $ 8,681.58 so received by the defendant Taylor, as such administrator, he has expended the sum of $ 8,631.17, so that there remains in his hands available for the payment of debts the sum of $ 50.41; that the real estate belonging to said estate is all heavily incumbered; that the building and loan stock belonging to said estate is held by secured creditors as collateral, to secure claims of equal or greater amount than the value of said stock; that by reason of the misapplication and misappropriation of the assets of the said estate and the waste and mismanagement thereof by the defendant Charles L. Taylor, plaintiff has been obstructed, hindered and delayed in the collection of its demand and said estate has been exhausted; that if said estate had been properly managed by said administrator the plaintiff's demand would have long since been paid in full.

The petition then prays judgment against the defendants aforesaid for the penalty of said bond, to-wit: the sum of $ 12,000 and for execution thereon in favor of the plaintiff in the sum of $ 1,270.58, together with interest thereon at the rate of six per cent per annum from March 18, 1895, to the rendition of judgment.

The defendant, Charles L. Taylor, filed a separate answer in the nature of a general denial, and defendants Doyle and Powell, Jr., filed a separate joint answer which was also a general denial.

At the close of all the evidence in the case the court gave a peremptory instruction to the jury on behalf of the defendants, upon which judgment was entered. Plaintiff, in due time, filed its motion for new trial, which was overruled, and it has brought the case to this court by appeal.

Reversed and remanded.

Bente & Wilson and Ross & Bohling for appellant.

(1) All demands belonging to a given class occupy the same position under the statutes of our State, and no part of one demand of the class can be paid to the exclusion of another demand of the same class. R. S. 1899, sec. 210. It follows that the payment of interest on the claims of Hopkins, Warren Citizen's National Bank, and Marshall & Company, was a breach of the bond. (2) Securities are liable for the misappropriation by the administrator of rents and proceeds of land belonging to the estate. Strong v Wilkinson, 14 Mo. 116. And it is immaterial whether the assets were such as the administrator was bound to collect. Dix v. Morris, 66 Mo. 514. So they are liable for the proceeds of a sale of property of an estate though such sale was without an order of the court and was unauthorized. State ex rel. v. Scholl, 47 Mo. 84; Dix v. Morris, 66 Mo. 514. (3) Where an estate is mismanaged the remedy is on the bond. Merritt v. Merritt, 52 Mo. 154. (4) All demands against the estate of a decedent must be presented to the probate court, allowed and classified. R. S. 1899, secs. 192, 195, 197; Wernese v. McPike, 100 Mo. 496. (5) It was a breach of the bond on the part of the respondent Charles L. Taylor, to pay the demand of his sister, Mary V. Anderson, in the sum of $ 200 and to pay himself an account which he held against said estate in the sum of $ 247.44, and to pay to the Citizen's National Bank the note of $ 400, and to pay the M. Benjamin account in the sum of $ 100, and to pay the interest from the time of the death of Charles G. Taylor, deceased, up to December, 1900, on the Marshall & Company claim. (6) It was a mismanagement of the estate of Charles G. Taylor, deceased, for the respondent, Charles L. Taylor, to sell the stock of jewelry, appraised at $ 3,311.99, to his sister, Mary V. Anderson, upon her and her husband's note and afterwards to repossess himself of said stock and release her from liability on said notes to the amount of $ 2,800, upon the mere pretenses that this release was made to her because she claimed the right of possession to certain...