Trs. of Gen. Assembly of the Presbyterian Church of the United States v. McElhinney

• Decision Date: 31 January 1876
• Citation: 61 Mo. 540
• Parties: TRUSTEES OF GENERAL ASSEMBLY OF THE PRESBYTERIAN CHURCH OF THE UNITED STATES, Appellants, v. ALEXANDER MCELHINNEY, Administrator de bonis non of ROBERT P. HUCKSTER, deceased, Respondent.
• Court: Missouri Supreme Court

61 Mo. 540

TRUSTEES OF GENERAL ASSEMBLY OF THE PRESBYTERIAN CHURCH OF THE UNITED STATES, Appellants,

v.ALEXANDER MCELHINNEY, Administrator de bonis non of ROBERT P. HUCKSTER, deceased, Respondent.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

George P. Strong, for Appellants.

After the final settlement, the power of the court over the administrator's accounts ceases. (Collins vs. Stephenson, 12 Mo., 178, 182.) hence the action of the court in entertaining a claim by Mrs. Huckstep, and making an allowance therefor, was “ coram non judice;” and the validity of its proceedings may be questioned in a collateral proceeding. How much more then, in a direct proceeding to enforce a sale of real estate to pay such an allowance!

The administrator cannot create debts, even in process of administration, and then sell real estate to pay them. Unless there are debts at the death of the intestate, or testator, his lands descend to his heir's devisees. (Farrar vs. Dean, 24 Mo., 16; Chambers Adm'r vs. Wright, 40 Mo., 482; Aubuchon vs. Long, 23 Mo., 99.) How then can Mrs. Huckstep create debts for her own use, and the real estate be sold to pay them. The statute does not contemplate such debts when it directs a sale of real estate.

If Mrs. Huckstep's creditors had any lien upon this real estate, to secure their claims which arose ten or fifteen years after Huckstep died, they must proceed against the devisees in chancery to enforce such liens. The probate court cannot twice administer the same estate.

Cline, Jamison & Day, for Respondent.

By the will the testator made his widow's debts his debts, and then the probate court allowed the claims as debts against his estate, which said allowances are judgments. (McKenny vs. Davis, 6 Mo., 501; Kennerly vs. Shepley, 15 Mo., 640.) The judgments are debts.

These allowances cannot be inquired into collaterally. (Taylor vs. Hunt, 34 Mo., 205; Lamothe vs. Lippott, 40 Mo., 142; State to use vs. Coste, 36 Mo., 437.)

SHERWOOD, Judge, delivered the opinion of the court.

The facts in this cause as agreed upon by the parties litigant, are briefly as follows: In 1856 Robt. P. Huckstep made and published his last will and testament, whereby he made his wife, Charlotte, his executrix, bequeathing to her during her natural life, all of his property, and providing, that upon her death, and after the payment of the debts of the testator and of the debts of the wife, the plaintiffs, after the satisfaction of certain other claims of minor importance, were to be the recipients of the proceeds arising from the sale of the residue of his estate. In 1857 this will was probated, and letters testamentary granted to the executrix, who duly administered in that capacity, and made final settlement of the estate committed to her charge in 1860, and received all the estate then remaining. In 1868 Mrs. Huckstep died, and Levi DeFoe, her brother, in the following year took out letters of administration de bonis non with the will annexed, and proceeded to again administer upon the estate of the testator, Huckstep. In the course of such administration claims were allowed against the estate of the testator, as the debts of such estate, but which were debts created long after his death, and arose in consequence of the alleged necessities of Mrs. Huckstep, for board, medical attention, etc., etc., during the years immediately preceding her death. No new or additional property was inventoried, nor was there any discovery made of debts having existence at the date of the testator's death. For lack of personal property, the real estate of the testator...