Stockmen's State Bank v. Merchants' & Stockgrowers' Bank

• Decision Date: 04 May 1921
• Docket Number: Civil 1819
• Citation: 22 Ariz. 354,197 P. 888
• Parties: STOCKMEN'S STATE BANK, Administrator of the Estate of LUCY ELIA CASTILLO, Deceased, Appellant, v. MERCHANTS' AND STOCKGROWERS' BANK, Administrator of the Estate of NASIF TAMER, Deceased, Appellee
• Court: Arizona Supreme Court

197 P. 888

22 Ariz. 354

STOCKMEN'S STATE BANK, Administrator of the Estate of LUCY ELIA CASTILLO, Deceased, Appellant, v. MERCHANTS' AND STOCKGROWERS' BANK, Administrator of the Estate of NASIF TAMER, Deceased, Appellee

Civil No. 1819

Supreme Court of Arizona

May 4, 1921

APPEAL from a judgment of the Superior Court of the County of Apache. F. H. Lyman, Judge. Reversed.

Mr Fred W. Nelson, Messrs. Armstrong, Lewis & Kramer and Mr. J Early Craig, for Appellant.

Mr. C H. Jordan, for Appellee.

OPINION

McALISTER J.,

This is an action by the Merchants' & Stockgrowers' Bank, administrator of the estate of Nasif Tamer, deceased, against the Stockmen's State Bank, administrator of the estate of Lucy Elia Castillo, deceased, for the recovery of $4,955, the value of 354 head of sheep, twenty-four stock cattle, and two work horses. From a judgment against it for $3,540, the value of the sheep, and an order denying its motion for a new trial, appellant brings this appeal.

Nasif Tamer, a Syrian by birth, but for many years a resident of Apache county, Arizona, died there December 23, 1916, and on February 10, 1917, the plaintiff-appellee, Merchants' & Stockgrowers' Bank, was appointed administrator of his estate. Lucy Elia Castillo, also a Syrian by birth, died in the same county on March 22, 1919, and her mother, Elena Elia, the following day. On April 19th, thereafter, the defendant-appellant, the Stockmen's State Bank, qualified as administrator of Lucy Elia Castillo's estate.

Nasif Tamer and Elena Elia were the owners separately of several bands of sheep and in 1914, 1915, and 1916 up to his death, Tamer ran Elena Elia's sheep on shares. On December 28, 1916, and again on February 6, 1917, by bill of gift confirming the same, Elena Elia executed and delivered to her daughter, Lucy Elia, a bill of sale transferring to her, among other things, 3,800 head of sheep in which was included 354 head, the ownership of which, along with that of a few cattle and horses, is the subject matter of this action, though the cattle and horses are not involved in the appeal. An inventory and appraisement was filed in the Nasif Tamer estate, in which these 354 sheep were listed as a part of the assets, and a short while thereafter, to wit, on April 19, 1917, the superior court of Apache county, sitting in probate and acting upon the petition of Lucy Elia Castillo, then Lucy Elia, after a hearing at which evidence was taken, entered an order directing appellee, the administrator of the estate, to turn over and deliver to Lucy Elia the 354 sheep, she being in its judgment the owner thereof. Certain alleged heirs of Nasif Tamer were dissatisfied with this order, and appealed therefrom to the Supreme Court of the state. But, according to the complaint, the 354 sheep were delivered to Lucy Elia, notwithstanding this order, upon an oral understanding between her and the plaintiff (and the court found this to be a fact) --

"That she said Lucy Elia Castillo would hold said personal property and sheep pending said appeal, and that if the Supreme Court should hold said delivery to Lucy Elia Castillo was an erroneous delivery, then said personal property and sheep so delivered to said Lucy Elia Castillo should be delivered back to plaintiff."

Appellee alleges also that appellant, upon qualifying as administrator of her estate on April 19, 1919, took possession of these sheep and other personal property with full knowledge of the foregoing agreement, of the aforesaid probate order, and of the opinion of the Supreme Court of Arizona rendered March 31, 1919, holding it null and void and of no force and effect whatsoever because made and entered without jurisdiction. Estate of Nasif Tamer, 20 Ariz. 232, 179 P. 644. On September 19th, thereafter, appellee demanded of appellant the return of the 354 sheep, the cattle, and the horses, but the request was refused, and the complaint, filed on October 20th following, alleged what the court found to be a fact, that appellant, Stockmen's State Bank, "wrongfully and unlawfully converted the said property and sheep to its own use," though it was at the same time found, as appellant had alleged:

"That the 354 head of sheep mentioned in the complaint, and which had been turned over as aforesaid to Lucy Elia, were not among the property of Lucy Elia Castillo taken over by defendant at the time that defendant took charge and possession of all of the property of said Lucy Elia Castillo, deceased, as aforesaid; that the same had theretofore, on the fourteenth day of May, 1917, been sold and delivered to one E. R. Chambers."

Excepting the last quotation, the essential facts were found as alleged by appellee, and the foregoing resume, together with the one following of appellant's pleadings, will enable one to understand the questions presented by the appeal. After demurring generally, a special demurrer was interposed based on an alleged defect of parties defendant, in that the Stockmen's State Bank, a corporation, was sued in its representative capacity, as administrator of the estate of Lucy Elia Castillo, deceased, rather than in its individual capacity. Appellant denies both in its answer and testimony that the sheep ever came into its possession as administrator of the estate of Lucy Elia Castillo, or that they ever formed a part of the assets of her estate, or that it "wrongfully and unlawfully converted the said property or any part thereof to its own use," and alleges that Lucy Elia Castillo took possession of said sheep on April 19, 1917, as their owner, asserted absolute title thereto from then on, in the exercise thereof sold and delivered them on May 10, 1917, taking the purchase price thereof and using it as her own; and further, that if there was any conversion of said property it was by said Lucy Elia Castillo in her lifetime, either on April 19, 1917, when she took possession of the sheep, or on May 10, 1917, when she sold and delivered them to Chambers and received the purchase price therefor; that consequently any cause of action appellee may have had for the recovery of said sheep, or their value, is barred under the provisions of paragraphs 710 and 725, Revised Statutes of Arizona of 1913, by the lapse of more than two years and twenty-eight days from the date Lucy Elia Castillo detained and converted to her own use said property until the commencement of this action on October 20, 1919. It is further pleaded that no claim for said sheep, or the value thereof was presented to appellant as administrator of the estate of the said Lucy Elia Castillo, though notice to the creditors thereof was duly published, the first insertion appearing under date of April 26, 1919.

The complaint alleges possession and conversion of the sheep by the administrator, but nowhere refers to a conversion thereof by the intestate, Lucy Elia Castillo. Hence, it is urged in behalf of the demurrer that, since the action is founded, so far as the complaint discloses, on the wrong of the administrator rather than that of the intestate, it should have been instituted against the appellant, Stockmen's State Bank, in its individual capacity. This contention is correct because an estate is in no way responsible for wrongful acts of its administrator or executor and cannot be held liable for a tort committed by him, nor for damages for the breach of a contract entered into by him; neither are executors liable as such for contracts made by them concerning the estate. Ferrin v. Myrick, 41 N.Y. 315; Austin v. Monroe, 47 N.Y. 360; Nickals v. Stanley et al., 146 Cal. 724, 81 P. 117; Sterrett v. Barker, 119 Cal. 492, 51 P. 695; Eustace v. Jahns, 38 Cal. 3. But --

"Trover will lie against the representative personally, for a conversion by him, though the property came to him with the estate of his decedent." Shouler, Executors and Administrators (2d ed.), par. 385, note.

Appellee urges, however, that the action is based on the intestate's conversion of the property, and that therefore the proper party defendant is the administrator in his representative capacity, citing as authority paragraph 969, Revised Statutes of 1913, which reads as follows:

"Any person or his personal representatives may maintain an action against the executor or administrator of any testator or intestate who, in his lifetime, ...