State v. Dickson

• Decision Date: 16 June 1908
• Citation: 111 S.W. 817,213 Mo. 66
• Parties: STATE ex rel. WANN et al. v. DICKSON et al.
• Court: Missouri Supreme Court

111 S.W. 817

213 Mo. 66

STATE ex rel. WANN et al. v. DICKSON et al.

Supreme Court of Missouri, Division No. 2.

June 16, 1908.

1. EXECUTORS AND ADMINISTRATORS—LIABILITIES ON ADMINISTRATION BONDS—NECESSITY OF ACCOUNTING.

The distributees of an estate, after the debts are all paid, have their right of action on the administrator's bond, whether final settlement by him or order of distribution by the probate court has been made or not.

2. SAME—ACTION BEFORE PAYMENT OF DEBTS.

The existence of a small unpaid allowance in favor of a creditor of a decedent's estate at the commencement of an action by the distributees for a breach of the administrator's bond does not render the action premature, where the allowance is paid by a distributee before the filing of the amended petition, in which all claim to reimbursement therefor is waived.

3. SAME—COLLECTION AND MANAGEMENT OF ESTATE.

Executors and administrators occupy a position of trust to those who are interested in the estate and are liable for failure to exercise that due care and skill which prudent men exercise in the management of their own affairs.

4. SAME—PERSONAL PROPERTY—SALE—MANNER AND CONDUCT.

An administrator has no authority to sell personal assets of the estate at a private sale without an order of the court, as required by Rev. St. 1899, § 117.

5. SAME.

Under the express provisions of Rev. St. 1899, § 117, an order permitting an administrator to sell personal assets by private sale may be obtained in vacation.

6. PRINCIPAL AND AGENT—EXISTENCE OF RELATION —EVIDENCE.

Evidence, in an action by distributees on an administrator's bond, examined, and held sufficient to show that a husband of one of the plaintiffs acted as agent for her and another distributee, in approving the administrator's action in selling certain stock belonging to the estate at private sale, without an order of the probate court.

7. EXECUTORS AND ADMINISTRATORS—COLLECTION AND MANAGEMENT OF ESTATE—PERSONAL PROPERTY—SALE.

Evidence, in an action by distributees against an administrator for devastavit in selling certain stock belonging to the estate at private sale without an order of the probate court, examined, and held to sustain a finding that the sale was made under the direction of two of the plaintiffs.

8. EVIDENCE — COMPETENCY—MARKET VALUE OF PROPERTY.

Secret sales of corporate stock at extraordinary prices to rival interests seeking to obtain control of the corporation do not establish the market value of the stock, but evidence of individual sales made without secrecy is competent.

9. EXECUTORS AND ADMINISTRATORS—SALE OF ASSETS—LIABILITY OF ADMINISTRATOR.

Distributees, who direct an administrator to sell personal assets of the estate at a private sale without order of the probate court, are bound by his action, where he acts in good faith, and cannot hold him liable for a greater sum than he obtained on the sale.

10. SAME — INFANTS — CAPACITY TO APPOINT AGENT.

An agent of an adult distributee cannot be considered as the agent of a distributee who is a minor, so as to bind him by directions given to the administrator authorizing him to sell personal assets of the estate at private sale without order of the probate court.

11. SAME—COLLECTION AND MANAGEMENT OF ESTATE—PERSONAL PROPERTY—SALE—MANNER AND CONDUCT.

A distributee of a decedent's estate cannot bind another distributee by directions authorizing the administrator to sell assets at private sale without order of the probate court.

12. SAME—LIABILITY OF ADMINISTRATOR.

Distributees cannot complain of an administrator's action in selling personal assets at private sale without order of court if they suffer no damage thereby.

13. SAME.

Where an administrator sells personal assets of the estate at private sale without order of the probate court, he assumes the risk of his conduct, and, although he acts in good faith, he is liable to dissenting distributees for loss resulting from his lack of prudence and skill in making the sale.

14. SAME.

Whether an administrator acted with prudence and skill in selling personal assets of the estate at private sale is a question of fact for the jury.

15. EVIDENCE—RELEVANCY—VALUE OF PROPERTY.

A newspaper article as to the value of corporate stock is inadmissible on an issue as to whether an administrator acted with prudence and skill in selling such stock for a less price at a private sale without order of the probate court.

16. EXECUTORS AND ADMINISTRATORS — LIABILITY ON BOND—ACTION—EVIDENCE.

Secret sales of corporate stock at extraordinary prices paid by rival interests seeking to obtain control of the corporation do not establish market value, and therefore evidence thereof is not competent on an issue as to whether an administrator acted with prudence and skill in selling such stock for a less price at a private sale without order of the probate court.

17. SAME.

Evidence of individual offers to buy and sales of corporate stock, being admissible to show market value, is competent on an issue as to whether an administrator acted with prudence and skill in selling such stock at private sale without order of the probate court.

18. SAME.

In an action against an administrator for damages resulting from selling stock belonging to the estate at private sale without order of the probate court, defendant may show what the market value of the stock was up to the delivery to the purchaser and the exceptional circumstances under which it advanced and the conditions under which he agreed to sell it for the price received as evidence of his good faith, prudence, and skill in selling it.

19. SAME.

The judgment and conduct of distributees in directing an administrator to sell stock belonging to the estate at private sale without order of the probate court may be considered in passing upon his prudence and skill in selling it.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by the state of Missouri, at the relation and to the use of Carrie V. C. Wann and others, against Joseph Dickson, Jr., and others. From a judgment for defendants, plaintiffs appeal. Modified.

John A. Gilliam and Luther Ely Smith, for appellants. Robert & Robert, for respondents.

GANTT, J.

This is an action upon a bond given by Joseph Dickson, Jr., as administrator de bonis non of the estate of Andrew Warren, deceased, in the sum of $20,000, with the St. Louis Trust Company, now the St. Louis Union Trust Company, as surety thereon, which said bond was executed and filed in the probate court of the city of St. Louis September 28, 1901. The breach of the said bond alleged in the petition, in substance, is: That on April 30, 1902, the defendant Dickson, as administrator as aforesaid, sold and delivered to the Mercantile Trust Company of the City of St. Louis 20 shares of stock of the Wiggins Ferry Company, the property of the said estate of Andrew Warren, deceased, for $500 per share, without having an order of court to make such sale, when he could and should have received for such stock $1,500 per share, and that the market value of said stock at said date was $1,500 per share. On motion the court struck out a part of the plaintiff's amended petition, to which ruling an exception was saved. The defendants in their answer admitted that the defendant Dickson was administrator, but denied that the bond given by Dickson was as set out in the petition, and denied the allegations of the petition as to the debts of the estate being paid, and denied that relator Carrie V. C. Wann paid a bill to David Nicholson against the estate, and that she canceled said bill and denied that relators are the sole heirs of the said Andrew Warren. They admit that Dickson had, as administrator, possession of 20 shares of Wiggins Ferry Company stock, and averred that he sold it on April 26, 1902, by the order of relators Carrie V. C. Wann, Andrew Warren, Jr., and Carrie Fay Warren. Defendants admit that Dickson had no order from the probate court to sell said stock, and denied that the probate judge had power to order the sale of personal property in vacation. Defendant also denied the allegations of the petition as to the sales, prices, and values of said stock, and denied that Dickson failed to perform his duties as administrator, and denied any liability to plaintiff. Defendants expressly pleaded as a defense that Dickson signed an agreement to sell said Wiggins Ferry stock on April 26, 1902, at the express direction and request of Carrie V. C. Wann, Andrew Warren, and Carrie Fay Warren, and delivered said stock on April 30, 1902, and received $10,000 therefor, at the express direction and request of said Carrie V. C. Wann, Andrew Warren, and Carrie Fay Warren, and that said three relators fully ratified and confirmed the act of said Dickson. The plaintiff filed a reply denying all the new matter set up in the answer.

Andrew Warren died, and his widow, Mrs. Carrie V. C. Warren, became administrator of his estate. In 1901, she was married to Frederick A. Wann, and went to Chicago to live. On September 28, 1901, Joseph Dickson, Jr., was appointed administrator de bonis non of the estate of Andrew Warren. The heirs at law of Mr. Warren were his widow, now Mrs. Wann, Carrie Fay Warren, who has since the commencement of this action become the wife of Robert Davis Law, Andrew Warren, and Van Court Warren, the latter of whom was a minor during the transactions out of which the present controversy arose. During all the times hereinafter mentioned, Frederick A. Wann and his wife and her said children lived at Mr. Wann's residence in Chicago, No. 4137 Ellis avenue. The Wiggins Ferry Company was and is a corporation engaged in the transportation of passengers, teams, and railroad cars between East St. Louis and the city of St. Louis across the Mississippi river, owning ferry boats, railroad tracks, and lands on both sides of the river. Its capital stock consisted of 10,000 shares of the par value of $100 per...