Tyler v. Priest
| Decision Date | 22 May 1888 |
| Citation | 31 Mo.App. 272 |
| Parties | MARY L. TYLER, Respondent, v. JOHN G. PRIEST, Administrator, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the St. Louis Circuit Court, HON. LEROY B. VALLIANT Judge.
Affirmed.
W. H CLOPTON, for the appellant: The personalty of Isaac Walker's estate was exhausted long prior to notice of the claim of plaintiff. The funds in the administrator's hands, must be distributed among the devisees whose realty contributed to the payment of the Houghan dower, according to their respective interests. McLeod v. Davis, 83 Ind 263; Virdwell v. Virdwell, 84 Ind. 224; Towle v. Swanzy, 106 Mass. 100; Heir v. Priest, 15 Mo.App. 591. Heirs of a warrantor are liable pro rata for breach of the ancestor's covenant of warranty. A judgment cannot be had against one for the whole debt. Walker's Adm'rs v. Deaver, 79 Mo. 664. The fund in the hands of the administrator consists of rents from the shares of two out of eight devisees, in the estate of Walker. The rents in hands of the administrator must be regarded as real estate devised to the two devisees. The devisees of Isaac Walker take their shares in the real estate discharged of the special debts of the testator. Sauer v. Griffin, 67 Mo. 657. The rents are not assets for the payment of specialty debts. They must be treated as a part of the realty which was devised to the two devisees from whose shares the rents were collected. Devisees in this state, at the time of the death of Isaac Walker, took their shares in the realty discharged of the specialty debts of the testator, as at common law. Sauer v. Griffin, 67 Mo. 657. Rents of real estate are not assets for the payment of debts and the heirs of a deceased insolvent even, are entitled to the rents of the real estate of the deceased up to the time when it is sold for the payment of debts. Gibson v. Farly, 16 Mass. 280; McCoy v. Scott, 2 Rawle 222; Stearns v. Stearns, 1 Pick. 157; Newcomb v. Stebbins, 9 Met. 540; Palmer v. Palmer, 13 Gray 326. Even if the administrator has paid debts with such rents they can be collected of him by the heir. Griffith v. Beecher, 10 Barb. 432; Hawkins v. Kimball, 57 Ind. 42; Goodrich v. Thompson, 4 Day 215. In Scudder v. Ames, 89 Mo. 511, the court say that an administratrix is not authorized to collect rents. True it is, that in Gamble v. Gibson, 59 Mo. 585, and Dix v. Morris, 66 Mo. 514, our Supreme Court have held that in making settlements between administrators and the heirs the sureties of the former will be held liable on their bond for rents collected by the administrator. They are treated as assets for that purpose only.
HITCHCOCK, MADILL & FINKELNBURG, for the respondent: The petitioning creditor having established her demand for $1,389.02 against this estate is entitled to be paid out of any assets in the hands of the administrator sufficient to satisfy the same. The last annual settlement filed April 23, 1887, (since this motion was heard in the probate court), shows a balance of $10,412.78 in the hands of the administrator, $5,733.03 of which is disputed and $4,679.75 of which is undisputed. There being no other unsatisfied debts, either one of the above amounts is sufficient to cover this claimant's demand in full. The disputed item of $5,733.03 was properly charged against the administrator by the probate court. The undisputed item of $4,679.75 was not received from the rents of real estate but from a personal judgment recovered by the administrator against a third party. The administrator cannot appropriate assets coming into his hands and withhold them from creditors for the purpose of equalizing supposed previous equities between devisees. The claims of creditors are prior in right and superior in grade. The administrator has with the consent of the devisees retained a portion of the realty and has collected and is still collecting the rents thereof; has commingled these rents with the other personal assets and income for many years; has expended the personalty indiscriminately in course of administration for various purposes, and shows a balance in his hands sufficient to pay the demand of this claimant. The administrator cannot now recoup on the balance thus shown to be in his hands for the purpose of reimbursing devisees or himself to the exclusion of creditors, especially in view of the fact that a part of the balance now in his hands consists of money collected on a judgment which is a personal asset, and in its nature primarily applicable to the payment of debts. The administrator in conjunction with the devisees has by his conduct, precluded any right of action against the estate up to this time by paying the annuity, and he now prevents a resort to the statutory power to sell real estate by reporting personal assets sufficient to pay the present claim. Petitioner cannot resort to the realty by the statutory mode because the administrator makes an annual showing of money on hand, but when she asked to be paid out of the fund in his hands the administrator says: It represents realty and is not applicable to the payment of debts. This is an inconsistent and inequitable position, and the administrator should be estopped from making such a defence against this creditor. The question whether devisees are liable on the warranty of their ancestor, in this state, does not arise in this proceeding. Pending administration, lands are assets subject to the debts of the deceased. Rev. Stat., sec. 146; Shaw v. Nicholay, 30 Mo. 99, 107; Carson v. Walker, 16 Mo. 68, 87. Partition of lands before final settlement of the estate does not withdraw them from liability for the debts of the deceased. Rev. Stat., sec. 3350.
The plaintiff recovered a judgment against John G. Priest, administrator de bonis non, cum testamento annexo, of the estate of Isaac Walker, deceased, in the circuit court of the city of St. Louis, on the twenty-eighth of October, 1885, for the sum of $1,389.02. The action which resulted in the recovery of this judgment was commenced on the twelfth of August, 1884. It was brought under section 191, Revised Statutes, to establish in the circuit court a demand against the estate of Isaac Walker, deceased. This demand consisted of the payment by the plaintiff of two instalments of money to a dowress, the same being instalments of an annuity charged by a judgment of the St. Louis land court, in 1864, upon land conveyed by the defendant's testator, Isaac Walker, deceased, to the plaintiff, in the year 1857, with covenants of warranty. In other words, it was an action for damages for the breach of a covenant of warranty against incumbrances. From the judgment of the circuit court, rendered in that action, an appeal was prosecuted to this court, where the judgment of the circuit court was affirmed on the twentieth of April, 1886. Tyler v. Priest, 21 Mo.App. 685, erroneously reported as Taylor v. Priest. In the concluding part of our opinion in that case, we held that the question of the classification and payment of the judgment, including the question whether there were any assets available for its payment, or whether the lands of the testator in the hands of his devisees could be subjected to its payment or not, were questions relating to the execution of the judgment, which could not be determined in that action. These questions present themselves for determination in the present proceeding.
After the judgment of the circuit court had been thus affirmed, it was presented to the probate court, and that court entered an order directing that it should be paid in due course of administration. The administrator declined to pay it, claiming that there were no funds in his hands available for that purpose. Thereupon the plaintiff filed her motion in the probate court, praying for an order upon the administrator to pay it. This motion was overruled by the probate court, after a most careful examination of the questions involved and after the filing of a very learned and able opinion upon those questions, which we have had the advantage of reading, but with which we have not been able entirely to agree. The plaintiff appealed to the circuit court where the motion was heard de novo, as required by the statute.
In support of her motion in the circuit court, the plaintiff showed that, according to the last annual settlement, filed by the administrator on the twenty-third of April, 1887, he had in his hands a balance of $4,679.75, to which the probate court had added the amount of $5,733.03, for error in settlement, thus making the total amount charged against him to be $10,412.78.
This surcharge of $5,733.03, made by the probate court, arose under the following circumstances: Thomas A. Walker, executor of Isaac Walker, deceased, was removed by the probate court on account of his being a nonresident of the state, and John G. Priest, the present administrator, was appointed administrator de bonis non, cum testamento annexo, in his place. Walker appealed from this judgment of removal and it was reversed by this court. In re Walker, 1 Mo.App. 404. Thereupon Walker was reinstated as executor, whereupon, on settlement between him and Priest, there was found to be in Priest's hands assets belonging to the estate to the amount of $5,394.21, for which the probate court rendered a judgment against him that he pay it over to Walker. Subsequently Walker was again removed and Priest re-appointed. Thereafter another settlement took place between Walker and Priest, in which it appeared that Priest had not paid over to Walker the amount above mentioned, to-wit, $5,394.21. Nor had he, in his own settlements, accounted therefor, nor charged himself therewith. On motion of some of the legatees, the probate court, in June, 1880, ordered Priest to charge...
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