State ex rel. Rice v. Packard

• Citation: 157 S.W. 598,250 Mo. 686
• Parties: THE STATE ex rel. C. W. RICE, Collector, Appellant, v. C. E. PACKARD
• Decision Date: 31 May 1913
• Court: Missouri Supreme Court

157 S.W. 598

250 Mo. 686

THE STATE ex rel. C. W. RICE, Collector, Appellant, v. C. E. PACKARD

Supreme Court of Missouri, First Division

May 31, 1913

Appeal from Clinton Circuit Court. -- Hon. A. D. Burnes, Judge.

Reversed (with directions).

Erasmus C. Hall for appellant.

The defendant gave the list on which the assessment was made duly signed and sworn to by him, to the county assessor, on June 26, 1905. Defendant after that made his final settlement in September, 1905, long before the assessor's books could be made up or filed, and had in his hands a large amount in excess of what would have been sufficient to pay all costs of administration and these taxes. The assessment included all property in his hands on June 1, 1905, as required by law. R.S. 1899, sec. 9144; R.S. 1909, sec. 11355. Personal taxes assessed on and after June 1st, each year constitute a debt for which a personal judgment may be recovered. R.S. 1899, sec. 9246. Every person owning or holding property on the first day of June shall be liable for taxes thereon for the ensuing year. R.S. 1899, sec. 9186; DeGiverville v. Legg, 48 Mo.App. 576. So that when the defendant gave the list to the assessor he became liable personally for the taxes thereon for the ensuing taxable year and is presumed to know the provision of the law in reference thereto. Knowing this, he should have retained from the estate a sufficient amount with which to pay taxes. Failing to do this, he is estopped to plead his final settlement as executor. State ex rel. v. Burr, 143 Mo. 209; Kansas City v. Simpson, 90 Mo.App. 50; Zegenhein v. Tittman, 103 Mo. 563; State ex rel. v. Tobacco Co., 140 Mo. 224; Davis v. Krum, 12 Mo.App 288. Under the law it was impossible for the county officer to have presented a claim against the estate represented by the defendant at the September term, 1905. Besides that, the law does not require that such demand must be presented to the probate court, but requires the executor to pay such taxes. R.S. 1899, sec. 184. R.S. 1899, sec. 9144, authorizes the assessment and levy of taxes upon the property of estate against the executor or administrator in possession thereof, and it is his duty to list such property for taxation, the assessor's duty to assess it against the executor and the executor's duty to pay the tax, and on his failure to do so an action can be brought against the executor and a personal judgment rendered against him therefor. State ex rel. v. Burr, 143 Mo. 209; Woerner's Am. Law of Administration, pp. 1144 and 1151. The assessment in this case was properly made against C. E. Packard, executor of Rhodes' estate, and not against said estate only, as was suggested in State ex rel. v. Kenrick, 159 Mo. 631, and that case has no application here. The Kenrick case held that the executor was not liable personally where the assessment was against the estate only. In the case of State ex rel. v. Trust Co., 209 Mo. 493, the court holds that where the estate subject to taxation, and actually taxed, was in the hands of the executor, administrator or curator, as such, at the time the taxes were either assessed, levied or became due, and he had the wherewithal to pay them potentially in hand, a resulting duty to pay arose and he would therefore be personally liable therefor, citing State ex rel. v. Tittman, 103 Mo. 533.

E. J. Smith for respondent.

GRAVES J. Lamm, J., is dubitante.

OPINION

GRAVES, J.

Action for delinquent personal taxes. The petition is long, but need not be set out except in general outline, and thus only by a statement of the facts of the case.

Defendant is sued personally. He was the executor of the estate of Joseph Rhodes, deceased. As such executor on June 26, 1905, he gave an assessment list of the property in his hands as such executor. This list showed a valuation of $ 21,000. In due course this list was made the basis for a tax assessment for the year 1906 in the aggregate of $ 308.70, and such taxes became delinquent January 1, 1907. Suit was instituted against Packard personally for these taxes. The tax list was for property on hand June 1, 1905, and no question is raised as to the regularity of the assessment.

Defendant's answer is in three counts: (1) a general denial, coupled with certain admissions; (2) he pleads the judgment of the probate court of Clinton county on final settlement and avers that no appeal was taken therefrom and that such judgment had in no way been modified or changed, and that he had paid the taxes in said judgment demanded; and (3) he pleads that the plaintiff in this case made no demand before the probate court or otherwise for the taxes sued upon prior to such final settlement in September, 1905, "as it was his duty to do if they were a legitimate demand against the effects of said estate in his hands, but stood by and suffered said settlement to proceed and final order for distribution, as aforesaid, to be made, thereby waiving any right to said alleged taxes that might theretofore have existed."

The judgment on final settlement is the usual one made in such cases and directs a distribution of the funds in the hands of the executor to the several legatees. The portion of that judgment relied upon by the defendant reads:

"And it is further ordered that said executor file the final receipts of said legatees and distributees for their said respective interests in said estate and 1905 taxes, and that on compliance herewith he be finally discharged as such executor."

The reply was as follows:

"For reply to defendant's amended answer, the plaintiff denies all and singular the allegation thereof not in conformity with the allegations of the petition.

"Further replying the plaintiff says that if it is true that the defendant, as the executor of the Rhodes estate, made final settlement of said estate, such settlement was made after the defendant had knowledge of the assessment sued on herein, and such settlement was made before the assessor had time in which to return such assessment and before the tax books could be made out, according to law, and that the judgment of the probate court is not a bar to this action."

This sufficiently outlines both the pleadings and the facts.

I. The real question in this case is, whether or not an executor, who has given in an assessment list of property in his hands for taxation, and then afterwards makes final settlement of the estate without reserving funds with which to pay such taxes as may be thereafter levied upon such assessment list, is personally liable to the State for the taxes so levied.

It is a matter of no little moment, because if there is not some remedy the State will always lose the taxes upon estate property for at least one year. We are favored with no briefs by respondent. He rests his case here upon the presumption that the judgment nisi is right. But is it right? We think not. We must seek light from the statutes of 1899. By section 9144 the assessor between June 1st and January 1st is required to take a list of all taxable property. The manner of taking such list is thus prescribed by that section:

"He shall call at the office, place of doing business or residence of each person required by this chapter to list property, and shall require such person to make a correct statement of all taxable property owned by such person, or under the care, charge or management of such person, except merchandise which may be required to pay a license tax, being in any county in this State, in accordance with the provisions of this chapter; and the person listing the property shall enter a true and correct statement of such property in a printed or written blank prepared for that purpose; which statement, after being filled out, shall be signed and sworn to, to the extent required by this chapter, by the person listing the property, and delivered to the assessor."

The italics are ours.

It must be noted that the statute covers not only actual owners of property, but those having property under their care, charge or management. Such list must be signed by the person listing the property and also sworn to by such person. Section 9186, Revised Statutes 1899 reads:

Every person owning or holding property on the first day of June, including all such property purchased on that day, shall be liable for taxes thereon for the ensuing year."

Again the italics are ours.

Under this section who is liable for taxes? If the owner of property alone were the person meant the phrase "or holding property" has no meaning. In fact it would have no place in the statute. Section 9151 of the same stat...