Van Bibber v. Julian

• Decision Date: 30 April 1884
• Parties: VAN BIBBER, Administrator, v. JULIAN, Public Administrator et al., Appellants.
• Court: Missouri Supreme Court

81 Mo. 618

VAN BIBBER, Administrator,

v.JULIAN, Public Administrator et al., Appellants.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

AFFIRMED.

F. P. Wright and W. C. Price for appellants.

The creditor should have given the administrators twenty days' notice of his intention to ask for an order for the sale of the real estate. The petition for the order of sale is also fatally defective in not averring positively that the personal estate was insufficient to pay the debts of the estate. When the personal estate becomes so insufficient, in consequence of the devastarit or neglect of duty of the administrator, an order for the sale of the real estate should not be granted in the first instance, but recourse should be had to the administrators' bond. Merritt v. Merritt, 62 Mo. 150.

F. S. Heffernan for respondent.

The final settlement of Henslee and Norfleet as administrators of Shackleford's estate, and turning over to the present administrator, their successor, the sum of $4,367.13, the amount of money found by the court in their hands, belonging to the estate of Shackleford, deceased, and discharging them from further liability, was a final judgment and cannot be attacked in any subsequent collateral suit. Bigelow on Estop., (1 Ed.) pp. 7, 8, 22, 23, 45, 46, 159, 160, 175; Lynch v. Swanton, 53 Me. 100; Bunker v. Tuffts, 57 Me. 417; Stewart v. Dent, 24 Me. 111; Freeman on Judg., §§ 246, 249, 252, 253, 254, 255, 275, 319, 608, see note; Dublin v. Chadborne, 16 Mass. 433; Simpson v. Norton, 45 Me. 281; Townsend v. Townsend, 60 Mo. 246; Lewis v.Williams, 54 Mo. 200. There is no privity between an administrator and an administrator de bonis non. Bigelow on Estop., p. 80. A personal judgment against an administrator concludes the heirs. Bigelow on Estop., p. 80, note; Steel v. Scincberger, 59 Pa. St. 308. The administrators could not appeal from the final settlement after having satisfied the judgment rendered against them thereat. Fagan v. West, 11 Mo. 208; Chase v. Williams, 74 Mo. 429; Robards v. Lamb, 76 Mo. 192.

RAY, J.

This is an application to the probate and common pleas court of Greene county, Missouri, on the part of J. D. VanBibber, as administrator de bonis non of the estate of Nathan Boon, deceased, who was a creditor of the estate of G. P. Shackleford, deceased, for the sale of the real estate of said Shackleford, for the payment of debts.

The proceedings were had and conducted, under sections 10, 22, 23, 24, 25 and 26, art. 3, of the administration law, 1 Wag. Stat., pp. 94, 96 and 97. The petition was filed December 14th, 1878, by VanBibber, as a creditor, under section 23 of said statute, and charged in substance, that the estate of his intestate, Boon, was a creditor of the estate of said Shackleford, in about the sum of $12,664.86, which had been duly allowed and classed in the 5th class of demands against said estate; that said Shackleford had died; that his personal estate was insufficient to pay his debts, and prayed for the sale of the real estate, or so much thereof (describing the same) as might be sufficient to pay the same.

Due notice of this petition was given to S. H. Julian, public administrator of said county, and administrator de bonis non of the estate of said Shackleford who, thereupon, filed his accounts, lists and inventories, as required by statute; of all which due notice was given to all persons interested in said estate; whereupon, T. J. Weaver and the other heirs at law of said Shackleford, appeared in court, and resisted said application, alleging, among other things, that the personal estate was amply sufficient to pay the debts of the deceased; and, also, claiming that if the same had become insufficient, by reason of the waste or misapplication of the administrators of said estate, that recourse should first be had to the bond of said administrator, before resort could be had to the real estate.

Upon this petition and these objections, as shown by the record, a trial was afterwards had before said court, which resulted in a finding for the plaintiff and a judgment accordingly, ordering the sale of so much real estate as might be sufficient to pay said debt, costs, etc. From this judgment the heirs appealed to the circuit court, where the judgment of the probate court was affirmed, from which the defendants have appealed to this court. This case we may remark, in one form or another, has been in this court twice before; the first time in 54 Mo. 518, the second in 66 Mo. 493.

The prior contests have been between the administrator de bonis non of Boon's estate, and the representatives of his administrator. This contest, however, is between Boon's said administrator and the heirs of his representative and former administrator.

From the agreed statement in the cause, we gather that Henslee and Norfleet were the original administrators of the estate of said Shackleford, deceased; that their administration commenced in 1863, and continued until sometime in 1875, when their letters were revoked by the probate court, and said estate, by order of said court, was turned over to said S. H. Julian as administrator be bonis non, who thereupon took and still has charge of said estate. We, also, gather from said agreed statement and said record, in substance as follows: That some time in the year last aforesaid (1875) the former administrators, Henslee and Norfleet, made with said probate court a final settlement of their said administration of said Shackleford's estate, showing that there was then remaining in their hands a balance of $4,367.13, in cash; and, also, showing that, thereafter, one J. S. Moss, a surety in the administration bond of said Henslee and Norfleet, appeared in court and paid into the hands of said Julian, administrator de bonis non of said Shackleford's estate, the said amount of cash, so found in the hands of said Henslee and Norfleet, the former administrators as aforesaid, and, also, fully paid over to said Julian all money, property, goods, chattels and effects, remaining in the hands of said Henslee and Norfleet, and that said Henslee and Norfleet, the former administrators, had in all things done and performed the orders of said court, touching said administration, and thereupon, by order of said probate court, said Henslee and Norfleet, together with their sureties, were discharged from said trusts, etc.

The record further shows that the former administrators, Henslee and Norfleet, in the course of their administration, had paid out to the heirs of said estate, about $1,600; and that they had expended some $2,000 in fencing and repairs upon said real estate; that they expended about $824.80 in purchasing in dower rights to the same, and also paid out the further sum of $650 in purchasing outstanding titles to said real estate. Besides this, they paid out for a trip to Texas, on business of the estate, some $658, and the sum of $585.80 for a similar trip to Arkansas. In addition, they, also, expended considerable sums in paying the taxes due on said real estate; in attorneys' fees for professional services in and about the litigation, incident to said estate, and other expenditures and costs, incident to said administration; all of which are complained of by the heirs as constituting waste and misapplication by said administrators of the personal estate, for which they and their sureties in their official bond are responsible.

Besides this, the record further shows that when the order of the probate court for the sale of the real estate was first made, the heirs appealed to the circuit court, where said order was reversed and remanded by the circuit court, with direction to the probate court to hear all the evidence, as to any assets, in the hands of said Henslee and Norfleet, the former administrators, together with the disposition and application of the same, which was accordingly done, and after a full hearing and accounting, so ordered, (in which the propriety, necessity and value of said payments, expenditures and applications of said assets were considered and approved by said court,) it was again found by said court that the personal estate was largely...