State ex rel. Welch v. Morrison

• Citation: 148 S.W. 907,244 Mo. 193
• Parties: THE STATE ex rel. WELCH et al. v. J. R. MORRISON et al., Appellants
• Decision Date: 20 June 1912
• Court: United States State Supreme Court of Missouri

148 S.W. 907

244 Mo. 193

THE STATE ex rel. WELCH et al. v. J. R. MORRISON et al., Appellants

Supreme Court of Missouri, Second Division

June 20, 1912

Appeal from Bates Circuit Court. -- Hon. C. A. Denton, Judge.

Affirmed in part; reversed in part.

M. S Horn and Silvers & Silvers for appellants.

The will of J. J. Ryan which withdrew the administration of his estate from the probate court of Bates county was against public policy. 9 Cyc. 510; Noise v. Marsh, 123 Mass 286; Conner v. Draker, 1 Ohio St. 166; Trust Co v. Green Cove Springs, 139 U.S. 137; Steamboat Co. v. Salvage Co., 123 U.S. 40; Doyle v. Ins. Co., 94 U.S. 535; Ins. Co. v. Morse, 20 Wall. 445; Trott v. Ins. Co., 1 Cliff. 439; King v. Howard, 27 Mo. 21; Tyler v. Larimore, 19 Mo.App. 454. When a will is against public policy the same cannot be enforced. 30 Am. and Eng. Ency. Law (2 Ed.), p. 612; Schouler on Wills, sec. 22. In business transactions, any violation of the statutes of the State is unlawful, and therefore a will that provides that an estate shall be administered contrary to the laws of a State cannot be enforced. Brooks v. Cooper, 35 Am. St. Rep. 793; Brooks v. Cooper, 50 N.J.Eq. 761; Buckley v. Humason, 36 Am. St. Rep. 637; Elliott v. Chamberlain, 48 Am. St. Rep. 327; Porter v. Jones, 52 Mo. 399; Bowers v. Bowers, 26 Pa. 74. An administrator de bonis non can sue his predecessor and sureties on the bond for assets not turned over to him, but not for failure to collect debts. R. S. 1889 and 1899, sec. 54; Waterman v. Dockray, 78 Me. 141; Hodge v. Hodge, 90 Me. 505; Meservey v. Kalloch, 53 A. 876; Court of Probate v. Smith, 17 A. 56; Brice v. Taylor, 9 S.W. 854; U. S. v. Walker, 109 U.S. 258; Beard v. Roth, 35 F. 397; Potts v. Smith, 24 Am. Dec. 359; State v. Rottiken, 34 Ark. 144; Rowan v. Kirkpatrick, 14 Ill. 1; Brownlee v. Lockwood, 20 N. J. 239; Johnson v. Hogan, 37 Tex. 77; Rives v. Patty, 43 Miss. 338; Beall v. New Mexico, 16 Wall. 535. The bond to be valid should have been signed in the presence of the probate court or the judge or clerk thereof or acknowledged before some one authorized to take acknowledgments of deeds. R. S. 1889, sec. 21; R. S. 1899, sec. 27; State v. Owen, 206 Mo. 573; State v. Woodard, 159 Mo. 680; State v. Crosswhite, 195 Mo. 1; Commonwealth v. Hickey, 172 Pa. 39; State v. Pratt, 148 Mo. 402; State v. Caldwell, 124 Mo. 509. Where an executor is insolvent when appointed, and remains insolvent during his administration, and up to the time of his discharge, his bondsmen are not liable for his individual debts to the estate. McCarty v. Frazer, 62 Mo. 263; Houck v. Anderson, 61 L.R.A. 315; In re Walker, 125 Cal. 242; Bascus v. Stover, 89 N.Y. 1; Bascus v. Stover, 107 N.Y. 624; In re Georgi, 21 Misc. 419; Kader v. Yeargin, 85 Tenn. 486; State ex rel. McLamrock v. George, 119 Ind. 503; Condit v. Winslow, 106 Ind. 142. This suit was in part to collect debts that the executors, F. J. Tygard and J. C. Clark owed the deceased. If the executors were solvent when they took charge of the estate and afterwards became insolvent, then the bondsmen would be liable for the part of the debts that could have been collected before the executors became insolvent. They would not be liable for interest accruing on debts after such insolvency. The court should have permitted the securities to show the insolvency after 1900, and between 1900 and the date of trial, February 19, 1908. The verdict of the jury was excessive and for this reason should have been set aside because the jury charged the bondsmen with interest on each and every count after the estate had been turned over to P. H. Holcomb and plaintiffs. There was no evidence showing that the money which Tygard and Clark owed Ryan at the time of his death could have been loaned by the executors at interest if the same had been collected. The instructions based on this theory and which authorized the jury to assess interest on these various sums should not have been given, as instructions should be based on facts in evidence. This proposition needs the citation of no authorities to support it. Instruction 2 should not have been given. Motor v. Reed, 6 Mo. 64; Kries v. Land Co., 121 Mo.App. 191; R. S. 1909, secs. 55, 56, 57 and 58. The heirs or distributees can and should bring any action for maladministration, even though the estate be not finally settled. State ex rel. v. Dickson, 213 Mo. 66. Isaac N. Mains, one of the bondsmen having died and letters testamentary having been published more than two years before any action was commenced by the plaintiffs against E. A. Bennett as administrator; and it appearing clearly that if there was any breach of the bond it occurred during the lifetime of said Mains, the court erred in not giving a peremptory instruction in favor of E. A. Bennett, administrator. The judgment should be reversed because the petition states no cause of action against the sureties. This is an action founded upon a bond. It is against the sureties on that bond. The liabilities of the sureties must be determined by the terms of the bond alone. The surety is bound only in the manner and under the circumstances named in the bond. County v. Salmon, 201 Mo. 136; Martin v. Whites, 128 Mo.App. 117. Acts prescribed by the will outside of the course of a statutory administration are not covered by a statutory executor's bond, and the sureties are not liable for anything outside such an administration unless the bond specifically so states. 18 Cyc. 1260; Armstrong v. Martin, 18 N.C. 397; Prescott v. Pitts, 9 Mass. 376; Carter v. Young, 9 Lea (Tenn.), 210; State ex rel. v. Anthony, 30 Mo.App. 638; Devore v. Pitman, 3 Mo. 182.

Thomas J. Smith for respondent.

(1) It may be conceded that paragraph 12 of the will of testator, Ryan, is void as being in contravention of the provisions of our statute on administration. This paragraph, however, is an independent paragraph, and the remaining portions of the will are in no way affected by its provision. The plaintiffs in the case claim no rights by virtue of the provisions of this paragraph. It may be rejected without affecting the other paragraphs of the will. Southworth v. Southworth, 173 Mo. 59; Sevier v. Woodson, 205 Mo. 202. (2) The plaintiffs as administratrices de bonis non with the will annexed may maintain this action. They are, indeed, the only persons who could maintain the action. Under the fifth and ninth paragraphs of the testator's will, all of the beneficiaries in said will being still alive, the trust created thereby continued and no one, save those legally charged with the execution of the will could maintain this action. R. S. 1889, sec. 54; R. S. 1909, sec. 62; State ex rel. v. Foster, 9 Mo. 356; State ex rel. v. Hunter, 15 Mo. 490; State ex rel. v. Flynn, 48 Mo. 413; Booker v. Armstrong, 93 Mo. 49; State ex rel. v. Dulle, 45 Mo. 272; State ex rel. v. Heinrichs, 82 Mo. 547; Francisco v. Wingfield, 161 Mo. 555; Rozelle v. Harmon, 29 Mo.App. 581; Rozelle v. Harmon, 103 Mo. 342; Tetterington v. Hooker, 58 Mo. 597; Scott v. Royston, 223 Mo. 586; Potts v. Smith, 24 Am. Dec. 385. (3) The provisions of Sec. 21, R. S. 1889, being Sec. 29, R. S. 1909, as to the duties of the probate court, judge or clerk thereof in the matter of taking bonds required therein are directory only and made only for the benefit of the estates to be administered, and failure of the court, judge or clerk to strictly comply with the provisions of this statute will not render void a bond otherwise valid. Henry v. State, 9 Mo. 778; Court v. Sparks, 10 Mo. 83; James v. Dixon, 21 Mo. 538; State v. Farmer, 54 Mo. 444; Brown v. Weatherby, 71 Mo. 155; State ex rel. v. Railroad, 113 Mo. 308; Paving Co. v. McManus, 144 Mo.App. 608. Court records valid though not signed as required. Platt v. Marshall, 10 Mo. 347; Fontaine v. Hudson, 93 Mo. 69. Collectors bond though not approved valid. Moore v. State, 9 Mo. 334; State ex rel. v. Findley, 101 Mo. 373. Likewise as to constable's bond. Jones v. State, 7 Mo. 81. (4) If F. J. Tygard and J. C. Clark were solvent at the time they took charge of this estate in 1898, and the executors failed to collect their indebtedness to this estate, their subsequent insolvency would be no defense. The burden being on the defendants to show these debts could not have been collected after the executors took charge, that burden would not have been sustained by introducing evidence tending to show that two years thereafter they were insolvent. Williams v. Petticrew, 62 Mo. 471; Booker v. Armstrong, 93 Mo. 59. The mere insolvency of either or both of these parties would not have excused the executors from collecting these debts if they could have been collected by reasonable diligence. Young v. Thrasher, 48 Mo.App. 333; In re Mfg. Co., 164 Mo. 333. (5) The verdict was not excessive. McCarty v. O'Bryan, 137 Mo. 590; McClintock v. Bank, 120 Mo. 127; Williams v. Railroad, 112 Mo. 463; Sweet v. Maupin, 65 Mo. 65; Lynch v. Railroad, 208 Mo. 42. (6) Instruction 2, complained of, was proper, since it is presumed until the contrary is shown that not only public officials, but all others, do their duty as required by law. Lenox v. Harrison, 88 Mo. 496; Long v. M. & S. Co., 68 Mo. 430; Mathias v. O'Neil, 94 Mo. 528; Agan v. Shannon, 103 Mo. 665; Boynton v. Miller, 144 Mo. 687; McCallister v. Ross, 155 Mo. 94; Roe v. Bank, 167 Mo. 424. (7) The surety, I. N. Mains, having died while the principals on the bond were still executors, no cause of action accrued to the plaintiffs in this case until after the removal of the executors. Until they were removed and then failed to properly account, no cause of action arose in favor of any one. This occurred in February, 1907, and the action was brought in September next following.

BLAIR, C. Roy, C., concurs.

OPINION

BLAIR...