State v. Packard

• Decision Date: 31 May 1913
• Citation: 157 S.W. 598
• Parties: STATE ex rel. RICE v. PACKARD.
• Court: Missouri Supreme Court

157 S.W. 598

STATE ex rel. RICE v. PACKARD.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. EXECUTORS AND ADMINISTRATORS (§ 236) — PAYMENT OF TAXES — DUTIES OF EXECUTORS.

Taxes assessed against the executor of an estate do not have to be allowed as other claims by the probate court, but are properly paid by the executor without an order, and when he does so he should be given a credit therefor.

2. TAXATION (§ 84) — ASSESSMENT — LIABILITY OF EXECUTORS.

Rev. St. 1899, § 9144, requiring the assessor to take a list of all taxable property, provides that he shall call on each person required to list property, and shall require a correct statement of all taxable property owned by him or under his care, charge, and management, and section 9186 provides that each person holding or owning property on June 1st shall be liable for taxes thereon, for the ensuing year, while section 9151 requires every probate judge to certify to the county court a list of every administrator, executor, and guardian, legally in charge of any estate, and upon such certification it shall be the duty of the county assessor to take from each of them, etc., a list of the personal property and assess it according to law. The executor of a decedent's estate made a list of the taxable personal property, but before the year for which the taxes were levied the estate was settled and the executor discharged. Held, that the executor was personally liable for payment of the taxes in question, which were assessed against the person and did not become a lien upon the property, for it was his duty to pay the taxes without an order of the probate court, and his failure cannot deprive the state of its taxes.

3. EXECUTORS AND ADMINISTRATORS (§ 315) — DISTRIBUTION — ORDER — MATTERS CONCLUDED.

As it is the duty of an executor to pay personal taxes, assessed against him on account of the personalty of his testator, without an order of probate court, a judgment of a probate court discharging him as executor on ordering final distribution is no bar to a personal action by a state for taxes so assessed.

Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.

An action by the State, on the relation of C. W. Rice, against C. E. Packard. From a judgment for defendant, the State appeals. Reversed and remanded, with instructions.

Erasmus C. Hall, of Kansas City, for the State. E. J. Smith, of Cameron, for respondent.

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 allegations 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.

1. 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 afterward 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...