Williams v. Heirs of Petticrew

• Decision Date: 31 May 1876
• Citation: 62 Mo. 460
• Parties: JOHN P. WILLIAMS. ADM'R OF WILLIAM D. PETTICREW, Respondent, v. THE HEIRS OF WILLIAM PETTICREW, Appellants.
• Court: Missouri Supreme Court

62 Mo. 460

JOHN P. WILLIAMS. ADM'R OF WILLIAM D. PETTICREW, Respondent,

v.THE HEIRS OF WILLIAM PETTICREW, Appellants.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Chariton Circuit Court.

A. S. Harris, with T. W. B. Crews, for Appellants, cited Williams Ex., 1567; Fish vs. Miller, Hoffm., Ch., 273; Wagn. Stat., 875, § 26; Powell vs. Owens, 5 Ves., 839; Carter vs. Feland, 17 Mo., 383; Johnson's adm'r vs. Hedrich, 33 Ind., 129; Garvin vs. Williams, 44 Mo., 465; S. C., 50 Id., 206; Witherspoon vs. McCalla, Wagner, 245; Powell vs. Evans, 5 Ves., 839; Case vs. Abeel, 1 Paige, 393; Piety vs. Stace, 4 Ves., 621; Hook vs. Payne, 14 Wall., 255; 1 John. Chan., 121; 1 Hilliard's Abr., 227-8; In reVan Horne, 7 Paige, 46; Waller vs. Amsted, 2 Leigh, 11; McCall vs. Peachy's Adm'r., 3 Munf., 288; Schiefflin vs. Stewart, 1 John. Ch., 620; 1 Amer. Lead. Ca., 523; Flintham's Appeal, 11 Serg. & Rawle, 16; Prewett vs. Prewett, 4 Bibb, 266; Darrell vs. Edw., 3 Dessaus, 241; Wagn. Stat., 90, §§ 55, 56 & 57; Id., 87, § 26; Id., 89, § 48; Id. 107, § 2; Hook vs. Payne, 14 Wall., 255, and cases cited; Toller's Ex., 480-1; Ashburnham vs. Thompson, 15 Ves., 402; 1 Bin., 199; 4 Serg. & Rawle, 116; 4 Hen. & Mumf., 416; 4 John. Chan., Rep., 405; Fonblanque's Eq., 442.

Glover & Shepley, for Respondent.

I. David Petticrew bequeathed his property to his son, and Williams was his guardian. Williams took his ward into his house while an infant, and kept him tell he was of age and after. Immediately after the ward was of age, he being in a dying condition, Williams had a settlement with him and took his receipt. This settlement was invalid. (Revett vs. Harvey, 1 Sim. and Stu., 502; Mellish vs. Mellish, Id., 138; Garvin vs. Williams, 44 Mo., 465; S. C., 50 Mo., 206.)

II. It was a breach of trust to let a note, without real estate security, stand out. (Bentley vs. Shreeve, 2 Md. Ch., 215; Moore vs. Hamilton, 4 Fla., 112; Ruggles vs. Sherman, 14 I. R., 446; Shultz vs. Pulver, 11 Wend., 361; 2 Williams, Ex., 1539.)

III. If the administrator loaned the trust money without real estate security, he became liable therefor. (Powell vs. Evans, 5 Ves., 839; Gray vs. Fox, 1 Saxton, 259; Hemphill's Ap., 18 Pa. St., 303; 23 Pa. St., 44; Ackerman vs. Emott, 4 Barb., 626; Bogert vs. Vanvelsor, 4 Edw. 718.)

IV. If the administrator used the money of the estate himself and turned over this note instead, he made himself responsible for principal and interest. (Jacott vs. Emmett, 11 Paige, 142; Jenkins vs. Walter, 8 Gill and I 218; Stantley's Ap., 8 Barr, 431; Morris vs. Wallace, 3 Barr, 323.) The administrator was bound to report money in his hands to the court and obtain its instructions. (Wagn. Stat,, 90.) He has no right to keep it dead in his hands. (2 Williams Ex., 1541.) Where there is so much confusion and so much neglect, the only safe rule is to make him account for ten per cent. compounded annually. (Hook vs. Payne, 14 Wall., 255; Spear vs. Tenkhorn, 2 Barb. Ch., 211; Clements vs. Caldwell, 7 B. Mon., 171; Swindall vs. Swindall, 8 Iredell Ch., 286; Moore vs. Beauchamp, 5 Dana, 77; Utica Ins. Co. vs. Lynch, 11 Paige, 520; Jameson vs. Hapgood, 10 Pick., 104; Barney vs. Saunders, 16 How., 535.)

V. The administrator is liable for a note, where no diligence is shown, no request to pay, and there was no proof of insolvency. (Wagn. Stat., 110, § 18; Williams Ex., 1536.)

VI. No probate court is authorized to lump a claim. It should be rejected, if not itemized. (Oldham vs. Trimble, 35 Mo., 229-230.)

VII. The account with the administrator should have been stated on the basis of ten per cent. with annual rests, in respect to every claim and use of money as to which he committed a breach of trust. (Wagn. Stat., 90, § 54.)

Thos. Shackelford, with C. A. Winslow, for Respondent.

I. On his final settlement, the administrator is entitled to credit for all debts due the estate, which have been charged in the inventory and have become insolvent, or which from any other cause he could not collect by the use of due diligence. (Wagn. Stat., 110, § 18; Strong vs. Wilkson, 14 Mo., 116.) His liability is like that of a bailee for him, and the measure of the diligence required of him is only that which prudent men exercise in the direction of their own affairs. (State vs. Maglen, 44 Mo., 356; Fudge vs. Dean, 51 Mo., 264; Gamble vs. Gibson, 59 Mo., 585.)

II. The administrator was bound to exercise reasonable diligence in collecting and preserving the estate, and his trip to Virginia under the circumstances was not an unreasonable undertaking. He was advised to go by his attorney and acted prudently in doing so. (Wagn. Stat., 84, § 184.)

III. A discretion is vested in trial courts as to charging an administrator with interest, and this court will not interfere, unless there has been an unreasonable exercise of this discretion. (Wagn. Stat., 90, §§ 54, 55; Madden vs. Madden, 27 Mo., 544; Clyce vs. Anderson, 49 Mo., 37.)

HOUGH, Judge, delivered the opinion of the court.

Dr. David Petticrew died in 1847, leaving a will, by which he devised and bequeathed to his only child, William D. Petticrew, his entire estate. John P. Williams was appointed and qualified as executor of said will, and qualified also as testamentary guardian of the person and curator of the estate of said W. D. Petticrew. On the 12th day of September, 1860, W. D. Petticrew became of age. On the 13th or 14th day of the same month, Williams made a final settlement of his accounts as executor, guardian and curator. On the day after the settlement W. D. Petticrew made a will, giving therein a large portion of his estate to his guardian, Williams, and to Williams' children.

In November, 1860, Petticrew died, and in January, 1861, Williams was appointed administrator of his estate with the will annexed. In April, 1863, proceedings were instituted by the heirs at law of Petticrew to contest the validity of his will, and said proceedings were twice reviewed by this court, without any final determination of the cause (44 Mo., 465 and 50 Mo., 206.) In November, 1872, said proceedings being still pending, a compromise was effected between the heirs at law, and the claimants under the will, whereby they agreed to make an equal division between them of the property of the estate, and the further contest of the will was abandoned. Under the arrangement, it is stated, the real property has been divided. One of the stipulations of the compromise was as follows: “Fifthly. The said parties of the second part (claimants under the will), in consideration of the premises, and the further consideration of five dollars to them paid by the parties of the first part (heirs at law), the receipt of which is hereby acknowledged, covenant and agree with the parties of the first part, that they, the said parties of the second part, will fully account for and pay over and cause to be paid over to the said parties of the first part, their heirs and assigns, the equal half of the present estate, money, goods, chattels, rights, credits, rents and effects above conveyed to them, with interest accruing, if any, for which an account shall lawfully be rendered by the proper party or parties. The said account to be taken and rendered, and the said one-half to be paid over to the parties of the first part, to be enjoyed according to their respective interests as heirs at law and distributees of said William D. Petticrew, deceased, in the same manner, and with like effect, as if said William D. Petticrew had died intestate, or his alleged will had been set aside and annulled. The aggregate amount of the said one-half of the said personal estate shall be ascertained amicably by the counsel of the respective parties upon an investigation of the value of said estates of David Petticrew and William D. Petticrew, lawfully to be accounted for; and the parties of the first and second part agree with each other to facilitate such investigation, by placing promptly in the hands of said counsels all books, papers, accounts, documents and information in their possession, when called for, and the amount when so ascertained shall be promptly paid over, or secured to the satisfaction of the parties of the first part, and if said amount to be so accounted for and paid over cannot be amicably agreed upon, the same may be adjusted by suit or suits in the courts.”

On the 5th day of August, 1863, Williams, as administrator, filed an exhibit of the estate of William D. Petticrew, showing the aggregate amount of notes, judgments and cash on hand to be $28,361.54. Accompanying the statement was a list of notes returned as insolvent in his settlement made in 1860, and a schedule of all the real estate and other property belonging to the estate. A second statement, or settlement, was made July 11th, 1867, showing a balance on hand of $30,569.45. A third settlement was made on the 15th of April, 1868, showing a balance on hand of $29,872.56. On the 16th December, 1869, a fourth settlement was made, showing a balance on hand of $28,866.13.

After the compromise was entered into, Williams filed an exhibit and statement as and for a final settlement of the estate of W. D. Petticrew, which showed a balance on hand to December, 1872, of $16,544.13, he having claimed credit for a number of notes as worthless, and uncollectable, with which he stood charged in his previous settlements.

On the 27th day of August, 1873, this final settlement, together with the objections thereto filed by the heirs at law of W. D. Petticrew, were submitted to the Judge of the probate court of Chariton county, who took the case under advisement, and on the 14th day of October, 1873, he rendered judgment charging the administrator with the sum of $56,175.54, and ordered distribution thereof.

From this judgment the administrator appealed to the circuit court, where on the 27th day of November, 1873, upon a trial de novo, the administrator was charged with the sum of $19,918.92, and judgment was...