The State ex rel. Wann v. Dickson

• Decision Date: 16 June 1908
• Citation: 111 S.W. 817,213 Mo. 66
• Parties: THE STATE ex rel. and to the use of CARRIE V. C. WANN et al., Appellant, v. JOSEPH DICKSON, Jr., et al
• Court: Missouri Supreme Court

111 S.W. 817

213 Mo. 66

THE STATE ex rel. and to the use of CARRIE V. C. WANN et al., Appellant, v. JOSEPH DICKSON, Jr., et al

Supreme Court of Missouri, Second Division

June 16, 1908

Appeal from St. Louis City Circuit Court. -- Hon. O'Neill Ryan Judge.

Affirmed in part and reversed and remanded in part.

John A Gilliam and Luther Ely Smith for appellant.

(1) On all the evidence before the court, the case should have been submitted to the jury. State to use v. Berning, 74 Mo. 96; Hamilton v. Berry, 74 Mo. 176; McDermott v. Railroad, 73 Mo. 516; State ex rel. v Matson, 44 Mo. 305; State ex rel. v. Thornton, 56 Mo. 325; Stagg v. Greene, 47 Mo. 500; Chandler v. Stevenson, 68 Mo. 450; Scarritt v. Jackson County, 89 Mo.App. 595; Hankinson v. Lombard, 25 Ill. 572; Montgomery v. Railroad, 181 Mo. 504; Ladd v. Williams, 104 Mo.App. 398; Andrew v. Pritchet, 66 N. Car. 387; Baylis v. Ins. Co., 113 U.S. 316. (2) A sale of personal property by an administrator without an order of the probate court, is at the administrator's own risk, and he is bound to respond to the beneficiaries of the estate for the difference between the price which he actually obtained and that which he should have obtained. R. S. 1899, sec. 117; Schouler on Executors (3 Ed.), sec. 346; Smith, Prob. Law (1868), p. 111; Powell v. Powell, 23 Mo.App. 372; Garesche v. Priest, 9 Mo.App. 270, 78 Mo. 126; In re Gorman's Estate, 50 Mo. 179; Stagg v. Green, 47 Mo. 502; Stagg v. Linnenfelser, 59 Mo. 341; Chandler v. Stevenson, 68 Mo. 453; State to use v. Berning, 74 Mo. 96; Boeger v. Langenburg, 42 Mo.App. 13; Richardson v. Palmer, 24 Mo.App. 480; Devore v. Pitman, 3 Mo. 182; Cowgill v. Linville, 20 Mo.App. 138; Stephens v. Mayor of Boonville, 34 Mo. 325. (a) The administrator himself having admitted by his letters in evidence on the trial that he might have obtained $ 600 per share for the stock, and the evidence further tending to show that he might have obtained as high as $ 1,500 per share for the stock, it was manifestly a question for the jury to determine whether or not the administrator could have obtained more than $ 500 per share for the stock, and if so, how much more than that figure he could have obtained. Newell v. West, 13 Blatch. 114; Wynns v. Alexander, 2 Dev. & Bat. Eq. 58; Cannon v. Jenkins, 1 Dev. Eq. 427; Wells v. Mills, 22 Tex. 302; Morton v. Johnston, 124 Mich. 563; Lappin v. Munford, 14 Kan. 9; Weyer v. Bank, 57 Ind. 198; Railroad v. Robbins, 128 Ind. 499; Ventress v. Smith, 10 Peters 175; Lay v. Lawson, 23 Ala. 390; Ilkenheimer v. Chapman, 32 Ala. 683; Winningham v. Holloway, 51 Ark. 388; In re Radovich, 74 Cal. 539; Briscoe v. Thompson, 1 Freeman's Ch. 159; Furn. Co. v. Stiles, 60 Miss. 849; Burnap v. Dennis, 4 Ill. 482; Williams v. Perrin, 73 Ind. 57; De La Montaigne v. Ins. Co., 42 Cal. 290; Henning v. Conner, 2 Bibb 188. (b) The mere fact that the administrator had made an agreement to deliver the stock at $ 500 per share, is no ground for relieving him from responsibility for his failure to secure the highest price obtainable for the stock. Such an agreement did not bind the estate or these relators. His personal punctilio is no ground for affirmance of the sale, nor is the fact that he exercised the utmost good faith, or that he took the advice of counsel, any defense. Desloge v. Tucker, 196 Mo. 587; Garesche v. Priest, 9 Mo.App. 270, affirmed 78 Mo. 126; Poullain v. Brown, 82 Ga. 425; Butler v. Butler, 10 R. I. 501; Schouler on Executors (3 Ed.), sec. 341, p. 429; sec. 346, p. 434; Weil v. Jones, 70 Mo. 500; State to use v. Scholl, 47 Mo. 84; State to use v. Berning, 74 Mo. 87; Rittenhouse v. Amerman, 64 Mo. 197; Stagg v. Linnenfelser, 59 Mo. 342. (3) Acquiescence implies and is founded upon knowledge. Acquiescence cannot be claimed unless the party against whom it is set up is aware of his rights. A person cannot acquiesce in what he is ignorant of, nor can he be bound by acquiescence unless fully apprised as to his rights, and all the material facts and circumstances of the case. (a) The evidence was not sufficient to establish acquiescence on the part of any of the relators in the administrator's acts. No one had informed any of these relators of their legal rights. Garesche v. Investment Co., 146 Mo. 436; St. Louis Safe Deposit & Sav. Bank v. Kennett Estate, 101 Mo.App. 397. (b) As a matter of law, there can be no ratification of an administrator's acts as far as a minor beneficiary is concerned. The court was bound, in any event, to submit the case to the jury as far as the relator Van Court Warren, an infant, was concerned. (c) Even if the evidence is regarded as tending to show a ratification of the sale by the adult relators, the question of ratification was one of fact which the court, under appropriate instructions, should have submitted to the jury. (d) The right to repudiate an unauthorized act can be lost only by an affirmative act, or by unreasonable delay after opportunity to act with freedom and with full knowledge of the material facts, and the burden is on the party asserting ratification to show knowledge on the part of the principal that the unauthorized act had been done for him. Charter Gas Engine Co. v. Charter, 47 Ill.App. 36; Moore v. Ensley, 112 Ala. 228; Brass v. Worth, 40 Barb. 648; Connell v. Clifford, 88 P. 850; Webb v. Allington, 27 Mo.App. 571; McClure v. Evartson, 82 Tenn. 495; Meyer v. Smith, 21 S.W. 995; White v. Langdon, 30 Vt. 599; Williams v. Storm, 46 Tenn. 203; Gruinbillot v. Abat, 6 Robt. (La.) 284; Bank v. Dobbins, 96 Mo.App. 693; Adair v. Brimmer, 74 N.Y. 554; Smith v. Howlett, 51 N.Y.S. 915; White v. Sherman, 168 Ill. 605; 1 Bispham's Hill on Trustees, 526; Smith v. Miller, 98 Va. 535; Clarke v. Lyon Co., 7 Nev. 75.

Robert & Robert for respondents.

(1) The court properly struck out the part of the petition which appellants contend pleaded fraud. "A mere charge of fraud, without specification of the acts which constitute the alleged fraud, amounts to nothing in pleading." Newman v. Mercantile Trust Co., 189 Mo. 423. This is so well settled and recently decided it is unnecessary to quote further authorities. (2) The contract for the sale of the Wiggins Ferry stock was not an option, but a valid, subsisting agreement. Newman v. Mercantile Trust Co., supra. (3) As the administrator in this case had express authority from three of the four distributees, the contract to that extent was binding on him. If the distributees did not have the authority to order the administrator to dispose of the assets, then the administration had not reached a point where they could maintain this action. The appellants were properly nonsuited, because at the time this suit was brought, one claim, amounting to $ 10 or $ 12, had not been paid. If this court takes the view of the trial court, that that was a negligible claim, then the three adult distributees could direct the administrator to make any disposition they saw fit of their interest in the assets. State ex rel. v. Thornton, 56 Mo. 325; Clarke v. Sinks, 144 Mo. 453; State ex rel. v. Matson, 44 Mo. 305; State ex rel. v. Grigsby, 92 Mo. 419; Pound v. Cassity, 166 Mo. 426. (4) Under all the circumstances, the administrator acted with wisdom and good faith, and, therefore, the appellants were properly nonsuited. "The liability of executors and administrators has been too often discussed in this court and so firmly settled, that there is little or no ground for difference of opinion as to the measure of their responsibility. They occupy the position of trustees to those who are interested in the estate, which they undertake to administer, and are liable only for the want of due care and skill required of them, as that which prudent men exercise in the direction and management of their own affairs." Powell v. Hurt, 108 Mo. 507, 31 Mo.App. 632; Booker v. Armstrong, 93 Mo. 49; VanBidder v. Julian, 81 Mo. 618; Mosman v. Bender, 80 Mo. 579; Julian v. Abbott, 73 Mo. 580; Merritt v. Merritt, 62 Mo. 150; Gamble v. Gibson, 59 Mo. 585; Fudge v. Durn, 51 Mo. 264; State ex rel. v. Meagher, 44 Mo. 356. (5) It is true an administrator derives his authority from the statutes, and "if he depart from this rule, it must be in the exercise of such sound discretion as will bear the strictest scrutiny, and show the best faith. Cases must arise in the administration of estates of deceased persons which absolutely require the exercise of sound discretion on the part of the administrator who acts in the capacity of trustee. . . . He must exercise the same caution in the management, collection and protection of the assets that a prudent and careful business man would use in the care and management of his own business." Mosman v. Bender, supra. (6) None of the errors assigned with regard to market value of stock are material, as appellants were properly nonsuited.

GANTT, J. Fox, P. J., and Burgess, J., concur.

OPINION

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 twenty thousand dollars, 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, twenty shares of stock of the Wiggins Ferry Company, the property of the said estate of Andrew Warren, deceased, for five hundred dollars per share, without having an order of court to make such sale, when he could and should have received for such stock fifteen hundred dollars per share, and...