State v. Mississippi Valley Trust Co.

• Decision Date: 26 February 1908
• Citation: 209 Mo. 472,108 S.W. 97
• Parties: STATE ex rel. KARRENBROCK, Collector, v. MISSISSIPPI VALLEY TRUST CO.
• Court: Missouri Supreme Court

108 S.W. 97

209 Mo. 472

STATE ex rel. KARRENBROCK, Collector, v. MISSISSIPPI VALLEY TRUST CO.

Supreme Court of Missouri, Division No. 1.

February 26, 1908.

1. TRUSTS — DEATH OF TRUSTEE — DUTIES OF EXECUTOR OF DECEASED TRUSTEE.

While the duty of administering a trust estate, does not, on the trustee's death, pass to his executor, the latter, on receiving, together with the testator's property, the trust fund, is charged with the duty as a bailee of preserving it intact for the true owner and of turning it over to new trustees when they are legally appointed.

2. EXECUTORS — DEATH OF EXECUTOR — DUTIES OF EXECUTOR OF DECEASED EXECUTOR.

Under Rev. St. 1899, § 46 [Ann. St. 1906, p. 350], providing that, if all the executors or administrators of an estate die or resign or their letters be revoked, in cases not otherwise provided for, letters of administration of the goods remaining unadministered shall be granted to those to whom administration would have been granted if the original letters had not been obtained, etc., the estate of a testator is not, on his executor's death, represented by the executor's executor.

3. SAME — CLAIMS AGAINST ESTATE — DEBTS — TAXES.

Rev. St. 1899, § 184 [Ann. St. 1906, p. 397] (Administration Act), provides that all demands against the estate of any deceased person shall be divided into classes; the third class, "All debts, including taxes due the state or any county," etc., and that it shall be the duty of the executor or administrator to pay all such taxes without any demand therefor being presented to the court for allowance. Section 9246 [Ann. St. 1906, p. 4248], under the title "Revenue," provides that personal tax bills shall be presented and allowed against the estates of deceased or insolvent debtors in the same manner and with like effect as other indebtedness of said debtors. Held, that for such purposes of allowance and classification a tax may be treated as a debt.

4. SAME.

Rev. St. 1899, § 4259 [Ann. St. 1906, p. 2334], (Laws 1881, p. 35, § 1), entitled "Assignments, Priority of State's Lien: An act to secure to the state of Missouri a priority of lien in the case of insolvent debtors to the state," provides that whenever any person indebted to the state is insolvent, or whenever the estate of any deceased debtor in the hands of the executors or administrators is insufficient to pay all the debts due from the deceased, the debts due the state shall be first satisfied provided, that nothing in the act shall be construed to interfere with the payment of the expenses of the last sickness, wages of servants, demands for medicines and medical attendance during the last sickness of the deceased, nor funeral expenses. Section 4260 (section 2, p. 36) provides that every executor, administrator, etc., who pays any debt due by the person or estate for whom or for which he acts before he satisfies and pays the debts due the state from such person or estate, shall become answerable in his own person and estate for the debts so due the state, etc. The emergency clause of the act of 1881 (section 4, p. 36) provides that whereas a doubt may be entertained by some as to the priority of the state in the case of insolvent debtors, etc., an emergency exists within the meaning of the Constitution why this law should go into immediate operation, etc. Held, that such sections are not applicable to the collection of taxes against the estate of a decedent, where no insolvency exists.

5. ACTION — STATUTORY REMEDIES — PRECLUSIVE CHARACTER.

Where a right is created by statute and remedies are provided for enforcing that right, those remedies are preclusive.

6. TAXATION — LIABILITY OF EXECUTOR — FINAL SETTLEMENT.

An executor who has made final settlement of the estate cannot be held personally liable for taxes due by the estate.

7. SAME — EXECUTOR OF TRUSTEE.

The executor of a trustee is not liable for taxes on a trust estate held by his testator during the testator's lifetime, but not held or administered on by the executor.

8. APPEAL — DISPOSITION OF CASE — GROUNDS FOR REVERSAL — AWARD OF COSTS.

Rev. St. 1899, § 9246 [Ann. St. 1906, p. 4248], relating to the collection of personal taxes and authorizing an action against the person assessed, provides that in no case shall the state, county, or city collector be liable for any costs. Held, that where in an action by the state on the relation of a county tax collector to recover personal taxes the court's attention was not called by the motion for a new trial to the fact that a judgment for defendant assessed costs against plaintiff, and no motion in arrest of judgment was filed the judgment would not be reversed on that ground, though it might be modified so as to eliminate the costs.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by the state, at the relation of H. W. Karrenbrock, collector of St. Louis county, against the Mississippi Valley Trust Company. Judgment for defendant, and plaintiff appeals. Judgment modified, and as modified affirmed.

E. Henry Wolfsberger and Henry Higginbotham, for appellant. Hamilton Grover, for respondent.

LAMM, J.

Judgment going in favor of defendant in a tax suit, plaintiff appealed. Defendant was sued in its individual capacity for the recovery of a personal judgment for taxes levied upon $142,760 of personal property for the year 1897. On that assessed valuation was levied $356.90 state and state interest tax, $713.80 county tax, and $499.66 school tax — aggregating $1,570.36. The case has troublesome and singular features.

The petition was filed on the 31st of December, 1902 — one day before the taxes became uncollectible by limitation (Rev. St. 1899, § 9246 [Ann. St. 1906, p. 4248]). After alleging relator was collector of the revenue for the county of St. Louis, that relator in writing appointed appellant's counsel Mr. Wolfsberger, with the approval of the county court, tax attorney, that defendant was a domestic corporation organized under the laws of this state relating to the incorporation of trust companies and having its place of business in the city of St. Louis, the petition proceeds to charge that T. T. Turner was a resident of the county of St. Louis on the 1st day of June, 1896, and either owned or had the possession and care, charge, or management of personal property situate in said county of the foregoing amount, subject to assessment and taxation for the taxes and funds mentioned; that said property was duly listed to him at said value in his name, as appears by a tax bill filed and marked "Exhibit A"; that said taxes were duly levied and then extended in the tax-books for the year 1897; that the collector made demand of payment, and diligently used all lawful means to collect said taxes; that notwithstanding that fact he was unable so to do; that said taxes are contained and extended in the personal delinquent tax lists for said year, allowed to the then collector in his annual settlement next after the end of that year, and which lists were delivered to and are now in the hands of relator, as a succeeding collector, for collection; that T. T. Turner died on the 30th day of January, 1897, testate; that by his will defendant was nominated executor; that said will was duly probated on the 5th of February, 1897, and said defendant presently qualified as executor and thereafter acted as such; that as such executor it paid debts other than said taxes; that such other debts were due and owing by said Turner in his lifetime, and due and owing by his estate, and belonged in the third and lower classification of demands against the estate; and that at the time of paying said other debts said executor had ample assets in its hands to pay said taxes — all of which, with statutory penalties, interest, commissions, and fees, remain due and unpaid. Wherefore, judgment was prayed for the amount of said taxes, with interest thereon from the 1st day of January, 1898, at 1 per cent. per month together with a collector's statutory fee of 15 per cent. on the full amount of tax and interest and an attorney's fee of 10 per cent. for bringing the suit, and for all costs.

Exhibit A, attached to the petition, is as follows:

"Personal Back Tax Bill.

"Statement of Delinquent Taxes on Personal Property, assessed in the County of St. Louis, in the State of Missouri, to and in the name of Rebecka W. Briggs, T. T. Turner, trustee, in Central township, for the year 1897, being all against the same person, in the names below stated, respectively:

                   --------------------------------------------------------------------------------------------------------------
                                  |         |              |    State and     |               |    School Tax.     |
                     No. of Bill. |  Year.  |   Assessed   |  State Interest  |  County Tax.  |  Dist. 2, Tp. 46,  |  Amount for
                                  |         |  Valuation.  |      Tax.        |               |      R. 6.         |   the Year
                    --------------|---------|--------------|------------------|---------------|--------------------|-------------
                       3426       |  1897   |    142760    |      356.90      |     713.80    |      499.66        |    1570.36
                                  |         |              |                  |               |                    |
                   --------------------------------------------------------------------------------------------------------------
                

"In the name of Rebecka Briggs, T. T. Turner, Trustee.

"State of Missouri, County of St. Louis — ss.: I, H. W. Karrenbrock, Collector of the Revenue within and for said County of St. Louis, in the State of Missouri, do hereby certify that the foregoing is a true and correct statement and bill of delinquent taxes remaining unpaid on the personal property, assessed against Rebecka W. Briggs, T. T. Turner, Trustee, in said county, in the name or names as therein stated, and according to the Tax Books in my office, and the said taxes are due for the different years,...