U.S. Fid. & Guaranty Co. v. Clutter

• Decision Date: 24 September 1918
• Docket Number: Case Number: 8934
• Citation: 74 Okla. 254,179 P. 754,1918 OK 545
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. CLUTTER et al.
• Court: Oklahoma Supreme Court

1918 OK 545

179 P. 754

74 Okla. 254

UNITED STATES FIDELITY & GUARANTY CO. v. CLUTTER et al.

Case Number: 8934

Supreme Court of Oklahoma

Decided: September 24, 1918

Syllabus

¶0 1. Executors and Administrators--Inventory and Appraisement--Property of Estate--Estoppel.

Where an inventory and appraisement in administration proceedings is filed, the inventory not being signed and sworn to by the administrator, but by another person, though otherwise purporting to be made by the administrator, the appraisement, however, being signed and verified by the appraisers duly appointed by the court, and the administrator files no other inventory and appraisement treating the property set out as the property of the estate, making no attempt to strike the inventory and appraisement from the files or to correct the same or to prepare and return another in due form, the administrator is estopped to deny that he came into possession of the property as belonging to the estate.

2. Same--Property of Estate--Presumption.

Where an administrator of an estate treats real property as belonging to the estate by collecting rents, making repairs, paying taxes and insurance, including such items of receipt and disbursement in his reports to the court in the administration proceedings, and makes no showing up to the time of or during the trial of an action lodged against him involving such property of any mistake, inadvertence, or ignorance in so treating the property, in an action against him involving such property it will be presumed that same was properly in his possession and belonged to the estate.

3. Same--Administrator's Bond--Suit by Creditor.

A creditor cannot sue on an administrator's bond unless his claim has been established by a judgment or allowed by the county court in the progress of administration, but, when such claim has been established by a judgment, and a transcript thereof duly filed in the county court, and the administrator has property belonging to the estate sufficient to pay expenses of administration and all claims against the estate, but refuses to pay such claim, though ordered by the county court to sell property of the estate to pay debts, a suit against the sureties on the administrator's bond will lie by such creditor on the claim so established, notwithstanding there has been no final settlement and accounting in the county court. The case of Pennington v. Newman, 36 Okla. 594, 129 P. 697, distinguished.

Error from District Court, Oklahoma County; George W. Clark, Judge.

Action by B. F. Clutter against Oliver N. Clutter, administrator of the estate of Jesse L. Clutter, deceased, and the United States Fidelity & Guaranty Company, as surety on the administrator's bond. Judgment for plaintiff, and defendant United States Fidelity & Guaranty Company brings error. Affirmed.

Ames, Chambers, Lowe & Richardson, for plaintiff in error.

Lawrence Mills and Ledbetter, Stuart & Bell, for defendants in error.

STEWART, C.

¶1 Jesse L. Clutter died seized of real and personal property situated in Oklahoma county. On January 1, 1913, Oliver N. Clutter was appointed and duly qualified as administrator with United States Fidelity & Guaranty Company as surety on his bond, which was fixed in the sum of $ 500. Within the time allowed by law for presenting claims, B. F. Clutter, a creditor of the estate, presented his claim to the administrator, who refused to allow the same, and suit was brought, resulting in judgment being duly rendered on November 18, 1913, against the administrator, transcript of which judgment was filed as required by law in the county court. The administrator refused to pay the judgment, and on February 20, 1915, filed final account and report showing receipts and disbursements of money, including claims paid, in which the judgment mentioned was wholly disregarded, no reference being made to the same, such report showing a balance of $ 30.74 due the administrator. This report represented that all debts and claims against the estate had been paid, and distribution was asked for. On July 6, 1915, the plaintiff, B. F. Clutter, made application to the county court requiring the administrator to sell real estate for the purpose of paying the judgment; it appearing that there was no personal property out of which to pay the same. Order was made by the court requiring the administrator to sell real estate for the purpose of paying debts with which order the administrator refused to comply, and still refused to pay the judgment. On August 4, 1915, the plaintiff began action against the administrator and the United States Fidelity & Guaranty Company as surety on the administrator's bond, and judgment was afterwards rendered on such bond to the extent of the face thereof; plaintiff's claim exceeding the amount of the bond. From this judgment the defendant United States Fidelity & Guaranty Company duly appeals to this court.

¶2 The evidence discloses that all the debts of the estate had been paid except the claim of plaintiff; that the administrator had disposed of all the money and personal property in his hands belonging to the estate, there remaining, however, real property situated in Oklahoma City belonging to the estate, which, according to the inventory and appraisement, was valued at $ 3,000, and that at the time of the trial the property was worth about $ 4,000, and at the time the county court ordered real estate sold to pay debts the property was worth between $ 2,800 and $ 5,000.

¶3 The appellant complains of the action of the trial court in overruling demurrer of the United States Fidelity & Guaranty Company to plaintiff's petition. The petition states all of the necessary facts to fix liability against the United States Fidelity & Guaranty Company as surety, and the court did not err in refusing to sustain such demurrer.

¶4 The appellant urges error of the court in the admission of evidence. The case was tried before the court without a jury, and the evidence introduced consisted largely of the judgment against the administrator, the transcript filed in the county court, the bond of the surety company, the records and files of the county court in the administration proceedings, and oral testimony as to the refusal of the administrator to pay the judgment after being ordered by the county court to sell property for such purpose and as to the value of the real estate. There was no error of the trial court in the admission of evidence.

¶5 Under the proposition that the judgment of the trial court is contrary to law and not sustained by sufficient evidence, the appellant makes the contention that there is no evidence showing that the real estate in question was in possession of the administrator or belonged to the estate. From the files in the administration proceedings which were introduced in evidence it appears that in due time after the appointment of the administrator an inventory and appraisement of property of the estate, including the land hereinbefore mentioned, was returned and filed. The appraisement is signed and verified by the three appraisers which the evidence shows were duly appointed by the court, but for some reason, not explained by the evidence, the inventory was not signed by the administrator, but was...