State ex rel. Miller's Adm'r v. Bidlingmaier

• Decision Date: 31 March 1858
• Citation: 26 Mo. 483
• Parties: THE STATE, TO USE OF MILLER'S ADMINISTRATOR, Defendant in Error, v. BIDLINGMAIER, Plaintiff in Error.
• Court: Missouri Supreme Court

26 Mo. 483

THE STATE, TO USE OF MILLER'S ADMINISTRATOR, Defendant in Error,

v.BIDLINGMAIER, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1858.

1. Where the interests of two estates in course of settlement conflict--as where there is a demand in behalf of one estate to be presented for allowance against the other--the same person can not act as the administrator of both estates in the matter of obtaining an allowance of the demand; should a demand be allowed under such circumstances against one of the estates, the proceeding will be regarded as a nullity.

Error to St. Louis Court of Common Pleas.

This was a suit brought by and on the relation of Adolph Kehr, as administrator de bonis non of Catherine Müller, deceased, against Bidlingmaier and others, securities in the administration bond of Jacob Müller, deceased, who was the administrator of said Catherine up to the time of his death and prior to the appointment of Kehr. The breach assigned was the alleged nonpayment to said Kehr of a balance found on a settlement of said Jacob's account with the estate of said Catherine, to be due by him to said estate.

The defences set up were that said alleged final settlement was unfair, false and erroneous; that it was invalid and of no force and effect as against said securities; that said securities were not notified of said settlement and had no opportunity to defend against the same; that said Jacob was the owner of the property (except the real estate), and that it was inventoried by him as belonging to said estate by mistake and through ignorance.

The case was tried by the court, and the facts set forth in its finding are substantially as follows: On the 22d day of June, 1850, the bond sued upon was executed and Jacob Müller appointed administrator of said Catherine Müller. He died July 3, 1854, leaving his administration unsettled. On the 6th day of July, 1854, said Kehr was appointed his administrator, and on November 6, 1854, said Kehr was also appointed administrator de bonis non of said Catherine Müller. On the 21st day of March, 1855, at the March term of the St. Louis probate court, said Kehr, as administrator of Jacob Müller, made final settlement of said Jacob's administration of said Catherine's estate, and a balance of $10,449.35 was adjudged to be due from said Jacob's estate to said Catherine's estate. The court further found that the amount due at the date of the trial was $8,194.91, and rendered judgment for the penalty of the bond, assessing the damages at the sum last above named.

A motion for a review was overruled.

Krum & Harding and Hamilton, for plaintiffs in error.

I. The court below should have given judgment for defendant; 1st, because the alleged settlement was unfair, irregular, false and void as to the securities. The policy of the law should not permit an administrator of one estate to make a settlement charging the estate with indebtedness to another estate of which he is also administrator, thus occupying the position of plaintiff and defendant; 2d, because if such a course be permitted at all, enough is shown in this case to impeach the settlement for fraud; 3d, because an administrator de bonis non can not sue the securities of his predecessor for a balance due by the predecessor to the decedent's estate. The administrator de bonis non can only administer the goods and assets remaining unadministered. Creditors, legatees and distributees are the only parties who can sue upon the bond. (6 Ala. 36; 6 S. & M. 323; 20 Mo. 99; R. C. 1845, art. 7, sec. 6, Administration Act.) 4th, because it does not appear that the estate of Jacob Müller was insolvent, or that any attempt has been made to collect the balance claimed from his estate, or judgment order in favor of Catherine Müller's estate against him. (3 Brev. 530; 6 Ala. 36; 2 Black. 52.)

Whittelsey, for plaintiff in error.

SCOTT, Judge, delivered the opinion of the court.

There seems to be a departure from correct principles in the management of this suit. This is to be attributed to the action of the probate court in permitting the same individual to represent interests hostile to each other. The record offered in evidence shows that Adolph Kehr--as administrator of Jacob Müller, who was...