Wilks v. Murphy

• Decision Date: 09 November 1885
• Citation: 19 Mo.App. 221
• Parties: M. Y. WILKS, Administrator, Respondent, v. S. A. MURPHY, Administrator, Appellant.
• Court: Kansas Court of Appeals

19 Mo.App. 221

M. Y. WILKS, Administrator, Respondent, v. S. A. MURPHY, Administrator, Appellant.

Court of Appeals of Missouri, Kansas City.

November 9, 1885

APPEAL from Adair Circuit Court, HON. ANDREW ELLISON, Judge.

Reversed and petition dismissed.

The facts are stated in the opinion.

H. F MILLAN, for the appellant.

I. The allowance of the demand in favor of D. W. Alexander against the estate of Jamama Alexander, of which Wilks was administrator, was a judgment, and is res adjudicata, as far as the parties thereto, and the parties in the case are concerned. Kennedy v Shepley, 15 Mo. 640; Dullard v. Hardy, 47 Mo 403.

II. Petitioner, Wilks, as administrator of the estate of Jamama Alexander, has no interest in this case, and is not a proper party. Gardner v. Armstrong, 31 Mo. 535.

III. DeFrance, the attorney who advised the assignment of the joint claim for the purposes of probate, was not a competent witness. Revised Statutes, section 4017.

IV. The motion in arrest should have been sustained. Revised Statutes, sects. 190, 200, 212, and 230, and authorities above cited.

JAMES M. DEFRANCE, for the respondent.

I. An appeal lies from the probate to circuit court, on refusal of the court to order an apportionment among creditors. Rev. Stat., sect. 292. The administrator may maintain an appeal in such case. McCune Estate, Holliday, adm'r, 76 Mo. 200, and cases there cited. The administrator represents all the creditors. A claimant might sell all or a portion of his claim, and should not be allowed to collect that which he did not own, especially if he is insolvent, as in this case.

II. The probate court had full power and jurisdiction to afford a complete and final administration of the fund. French v. Stratton, 79 Mo. 560. If Wilks, after knowledge that one-half of this claim was owned by Sarah Alexander, had paid it all to Murphy, administrator of David Alexander, without any resistance on his part, he would have been liable to Sarah Alexander for one half. Bassett v. Slater, 31 Mo. 75; North v. Pricet, 81 Mo. 561; all going to show that an administrator must take notice of equities existing against the funds in his hands.

III. The attorney, DeFrance, was a competent witness in the case. His evidence did not disclose any communications made to him as attorney, but only what transpired between clients in his presence. His advice was only in the nature of suggestion, she being sick and scarcely able to be out of bed. The money is hers and she should have it, and ought not to be paid over to the administrator of her brother to be swallowed up by his creditors.

PHILIPS P. J.

The estate of Jamama Alexander was indebted to David W. Alexander and Sarah E. Alexander jointly. They applied to an attorney to prepare this claim for allowance against said estate; and, as is now claimed, it was suggested and agreed upon between them that said Sarah should assign her interest in the claim to said David Alexander. David made the requisite statutory affidavit, and the claim was duly presented and probated in his name. Aside from an allowance for funeral expenses, this was the only demand against the estate. After the demand on account of the funeral expenses had been paid, and the two years within which claims against the estate could be admitted to probate, this claim or judgment in favor of said David Alexander only remained for payment, and the administrator, M. Y. Wilks, had in his hands funds to be applied thereto. After this allowance said David Alexander died intestate, and letters of administration were granted on his estate to S. A. Murphy. During the pendency of this appeal said Wilks died, and the cause has been revived here in the name of Thomas Edmonds, administrator de bonis non.

After the death of said David Alexander, Wilks, administrator of the estate of Jamama Alexander, presented to the probate court of Adair county, where said administration was pending, his petition, setting out the facts aforesaid respecting the allowance of said claim, and the lapse of the two years for the presentation of other claims, alleging that the said Sarah Alexander claims that one-half of the sum so allowed against the estate in favor of David Alexander ought to be paid to her or to her agent, as she is the equitable owner of one-half thereof--no consideration having, in fact, been paid her for said assignment. The petition prayed for an order of the probate court directing the administrator of Jamama Alexander's estate to distribute one-half of the fund in his hand applicable to said probated demand to the said Sarah Alexander, etc.

To this application the administrator of David Alexander appeared and filed motion, in the nature of a demurrer, to dismiss the petition, for the reason that said Wilks, administrator, has no interest in the subject matter of the petition--is not a necessary party to such controversy; and because no claim is filed in the probate court by said Sarah, and the probate court has no jurisdiction of the subject or the parties. The probate court sustained this motion, and the administrator, Wilks, appealed to the circuit court. In the circuit court the administrator of David Alexander renewed the motion to dismiss, setting up the same objections above stated, and for the further reason that said Sarah Alexander was not made a party to the proceeding, and that the circuit court had no jurisdiction to make the order asked for. The motion was overruled.

The circuit court found the facts in favor of the petitioner, and made decree that Wilks, administrator, pay over to said Sarah Alexander one half of the money in his hands applicable to said claim allowed in favor of David Alexander. From this judgment the administrator of the estate of David Alexander prosecutes this appeal.

I. This...