In Re: Francis Estate

Appellant has appealed from a judgment of the circuit court reversing an order of the judge of the county judge's court directing distribution of the estate of Alice Francis, deceased, but disapproving five items in the administrator's report. The administrator was required by the original order to pay the total amount of the disputed items "to the judge of the above styled [county judge's] court . . . to be held [by him] for the use of the estate of LeRoy McMacken, deceased. . . ." This contest developed between two administrators: one, of the estate in which the questioned order was filed; the other, of the estate of a distributee. Alice Francis died in July, 1940, and her estate passed by the law of descent to LeRoy McMacken and others. He died about four months later, meanwhile having assigned his interest in her estate to an attorney and to a person variously described in the record as his relative, his wife and his daughter-in-law. Before the administrator of the estate of Alice Francis filed his final return, an administrator ad litem of the estate of LeRoy McMacken was appointed upon petition of Reconstruction. Finance Corporation, his creditor. When the former presented his final report the latter challenged the five payments to which we have alluded and charged that four of them were made to the assignees under a fraudulent and void assignment. The fifth was made to defray the expenses of the funeral of LeRoy McMacken. We have found a reference to the assignment in the report of the one administrator, in the objections of the other administrator, and in the orders entered by the county judge's and circuit courts but research has not rewarded us with any of its details. Certain features of this so-called assignment, as given in the judgment of the circuit court, have particular significance when studied in the light of the position of the appellee that his action in distributing the share of LeRoy McMacken to others than the administrator of his estate was proper. It is written in the latter judgment that LeRoy McMacken assigned his interest to Grace McMacken and that *Page 363 the administrator of the estate of Alice Francis recognized it as a valid transfer to her. Then it was stated by the court "that pursuant to the terms of said assignment [the] administrator made certain disbursements and payments as a portion of the distributive share of LeRoy McMacken in the estate of Alice Francis, deceased, jointly" to the assignee and the assignor. There follows the finding that both assignee and assignor later directed the administrator "to pay one-fifth of the remaining distributive share" to the attorney "and the remaining four-fifths of such share to the said Grace McMacken." For the moment we will devote our observations to the effect of this assignment upon the administration of the estate of LeRoy McMacken and later discuss and determine the validity of the payment for services of the mortician. The question is whether the administrator of the estate of Alice Francis, deceased, should have remitted the residue of the share of the distributee directly to his assignees or to the administrator of his estate. The county judge held the latter course proper, but the circuit judge approved the former one. As said in. Schouler on Wills, Executors and Administrators, Fifth Edition, Section 1507, "Descent is cast, and rights of distribution are vested, upon the death of the intestate ancestor or person whose estate is to be administered; hence the subsequent death of a distributee transfers his interest to his personal representative." It seems, then, that had there been no assignment of it by McMacken his, interest in the estate of Alice Francis would have passed to his representative, appellant. Patently such an interest is assignable but the transaction here was complicated by the death of the assignor before the actual payment of his entire share to the assignee. It was the duty of the administrator of his estate to take custody of the assets and preserve them for distribution among the interested parties, including the creditors. Some courts have held that the "administrator is more the representative of the creditors of the decedent than of the heirs [since] creditors have the first claim against the estate and *Page 364 it is the paramount duty of the . . . administrator to protect their interests." 21 Am. Jur., Executors and Administrators, Section 9. When death interrupts a person's earthly existence the prospect of a creditor recovering anything on the debt of the deceased is limited, of course, to the property which the personal representative administers. Moreover, at least one debt thereupon arises which, despite its creation from the death itself, is entitled to priority, namely, the expenses of his funeral. It being the responsibility of the administrator to care for the debts as well as he may he certainly has the duty to see that no moneys or property in which the deceased had an interest escape him or are misapplied. According to the file in this case the very administrator asserted in the probate court that the assignment by his intestate was fraudulent and invalid. The question presents itself, then, whether in this attitude he, in his capacity as representative of the assignor, now deceased, and in accordance with his obligation to the creditors, should not scrutinize and approve any further payments under it. We consider the course approved by the county judge correct. If the administrator should eventually prevail in his contention that the assignment was invalid, obviously, the remainder of this share of the estate of Alice Francis would be retained by him to be applied to the debts of LeRoy McMacken or otherwise distributed. On the contrary, if the assignment was, in fact, invalid and the action of the administrator of the estate of Alice Francis in paying this share directly to the assignees were sanctioned, the estate of McMacken would be put to the disadvantage of bringing a suit in a court of proper jurisdiction to recover the amount paid under the assignment. It is our view that this money should have been paid by the administrator of the estate of Alice Francis to the administrator of the estate of LeRoy McMacken so that the latter, as representative of the creditors, too, could determine the validity of the assignment and, should he decide against its validity, be in a position to insist upon the defense in the event suit were brought in the proper tribunal. His success would result in saving the asset to the estate he represents. *Page 365 Appellee's argument that the probate court is not the proper one to entertain the contest over the validity of the assignment is beside the point. The present controversy is not one between a creditor and the assignee but between two representatives, the one claiming all that he feels it his duty to claim in order properly to discharge his duties. Nor is it appropriate to argue the failure of the assignor to question the validity of the assignments. The assignor is dead and the only one to act in his stead in challenging, if challenge is to be made, is his representative, appellant. Even more plainly there was no authority on the part of the administrator of the estate of Alice Francis to pay the cost of the burial of LeRoy McMacken. The claim for this service was one against his estate and, therefore, should have been entertained by the appellant. We are inclined to the view that if the ruling of the circuit judge were followed it would very nearly approach the administration of the estate of one person by the administrator of the estate of another. The final question presented involves the propriety of the order of the circuit judge providing that the administrator of the estate of Alice Francis should "recover his costs of this appeal [from the county judge's court to the circuit court] including a reasonable attorney's fee for the services of his attorney in this appeal." Under Section 734.01, Florida Statutes, 1941, "all necessary expenses and attorney's fees paid in the care, management and settlement of the estate" were allowable. Obviously, the appeal affected primarily the assets of the estate of LeRoy McMacken but, in harmony with the views we have already expressed, it seems he should not have been paid from them. We do not comprehend how the assets of the estate of Alice Francis would have been materially affected by the payment of the distributee's share to his assignee in preference to his administrator, however, under the section quoted the probate judge has the power to determine whether such expenses and fees are justified and should he eventually decide the question in the affirmative, any order approving them should provide for their payment from that estate. *Page 366 It is our order that the judgment be reversed with directions to enter one in accordance with the opinion we have expressed. BUFORD, C. J., BROWN, and SEBRING, JJ., concur. ON REHEARING GRANTED