Rozelle v. Harmon

Philips, P. J. The important question, presented for decision by this appeal is, whether there can be, under the probate system of this state, an executor de son tort, in so far as to authorize a single creditor of the intestate to maintain an action of trover against him, as here sought, and thereby appropriate the whole assets to the payment of plaintiff’s debt? That such was the ancient rule at common law is not questioned. But that it should longer ¡prevail in this state, in view of our statutory system of administering dead men’s estates, is denied by appellant. . Judge Redfield, in his work on the law of Wills (vol. 3, p. 21, note 6), regards the common-law rule as inapplicable and obsolete under such a statutory system as exists in this state. He says: “ The American courts have sometimes held such persons liable to an action at the suit of creditors of the estate. But there has always been manifest a marked disposition here to narrow the range of such responsibility, and virtually to expunge the term from- the law. It is, in itself, a subject resting upon no just basis of correlative rights and responsibilities, but operates chiefly in the nature of a penalty, for intermeddling with effects of deceased persons. We have devoted no space to the topic in this work, because it is so nearly obsolete in the American ■courts, that it would seem unjust to the profession to. tax them with the expense of what is only speculatively useful. The early American cases discuss the topic only in a theoretical point of light, finally coming to the conclusion that if it were conceded that one may incur the responsibility of an executor in his own wrong, the case in hand is not one of them.” So it was observed in the more recent English case of Cary v. Hills, L. R. 15 Eq. 79, which was a bill in equity against an executor de son tort for an account of the goods in his hands, the action could not be expected to be maintained, as “amore appropriate remedy would seem to be an action of tort in the name of the personal representative.” — 579 — In Dixon v. Cassell, 5 Ohio, 533, the court, after stating the provisions of the administration law of that state for securing the appointment of an administrator, say: “Creditors of the decedent are entitled to an equal distribution of the assets free of lien ; no one can get the preference. Judgments are against assets to be administered, and are only to be levied upon assets. This equality would be destroyed, if suits are sustained by any creditor against those having custody of goods of the defendant, as the executor de son tort. It is unnecessary to sustain such suit, and we are unwilling to afford the opportunity, as we must if we sustain this suit, for one creditor by contending with a person having the custody of a decedent’s effects, to appropriate the whole assets to his individual debt, to the exclusion of all other claims.” This subject has been well considered by the court of appeals of Texas. In Ansley v. Baker, 14 Texas, 607, the court makes an observation quite opposite to the rule under our statute; that while a general creditor of the decedent may go into the circuit court, in the first instance, to establish by judgment the validity of his claims, he cannot enforce it by execution de bonis testatoris, but must- have his judgment probated and take its place in- the prescribed classification ; yet, if the general creditor may sue the wrongful administrator in the common-law court and recover judgment, he may take out execution de bonis testatoris, and upon return of nulla bona, he may then have one de bonis propriis, to the extent of the whole value of the property taken by the wrongdoer, without submitting to probate, classification, or pro-rata distribution. Ch. J. Hemphill then said: “The statute vests very ample jurisdiction in the county court over the estates of dead persons, especially in relation to debts, and subsequent partition. The intention was, obviously, to form a complete system; to provide for all contingencies ; to adjust a mode of settlement sufficiently comprehensive to embrace all estates, with capacities to extend — 580 — justice to all who would apply, under its provisions ; to have all the debts and' assets before the county court, that none might suffer, who were entitled under the law; and at the same time to form a system so intelligible to a common' understanding, as to be susceptible to administration by men of plain common sense. * * To introduce an executor de son tort, with his rights and liabilities, would mar the intended symmetry, and increase the perplexity, of the system. To permit the estate to be charged and its assets applied in another mode and by different tribunal from that prescribed by law, would be at war with the policy of the statute, and would produce discord and confusion where harmony might and should exist.” This was followed in Green v. Rugely, 23 Texas, 539; quoting Lord Cottenham in Tyler v. Bell, 14 Eng. Ch. R. J. 109: “That an estate cannot be administered in the absence of a personal representative, and that such personal representative must obtain his right to represent the estate from the ecclesiastical court in this country, has, I believe, never been doubted.” Again“ Our statute, creating the descent, both real and personal, directly and immediately upon the heirs and distributees, subject to an administration, does not vary this, as an ordinary rule, otherwise than by creating exceptions, when the reason of the rule does not exist.” So it was expressly held that no such office as an executor de son tort could be recognized under the statute. This matter was thoroughly considered and ably discussed by the Supreme Court of Arkansas in Barasien v. Odum, 17 Ark. 122. The reasoning of this case is irresistible. The statute of that state concerning administrators and executors is quite like ours in all essentials bearing on this issue. The- argument is, that the statute has provided a complete and exclusive probate system, the capital objects of which are, that the estates of every deceased person shall immediately pass to the custody of the law, to be administered for the benefit of creditors; and after the satisfaction of all — 581 — claims against it the residue shall be distributed to the rightful heirs and distributees. “ The probate court is intrusted with custody of estates; and that tribunal proceeds, in rem, to adjust the rights of all parties interested in the estate, and disposes of it in accordance with the |>rovisions of the statute ; having for these purposes, the most summary and plenary powers, within the scope of its jurisdiction, conferred by the constitution and statutes, administering both law and equity within this scope, according to the exigency of the rights to be adjudicated upon.” In view of the remedial powers of the administration law, extending to almost every conceivable case of the wrongful interference with the property of decedents, it was held there could no longer be any necessity for recognizing the common-law remedy against an intermeddler. By pursuing, on the contrary, the statutory method by administration the assets when recovered by the administrator or applied as a trust fund ratably, in the order of allowance and classification, among all the creditors. In other words, the whole scheme and policy of our administration law, as founded on the constitution, and builded by the statute, is to regard and treat the assets of deceased persons’ estates, as a trust fund, passing directly to the legal representative, to be administered, disbursed, and distributed, equally and equitably, under the obligations of the bond, and the supervision of a competent and efficient probate judge. The statute, in this respect, operates like an assignment by death, the right, possession, and control of all the personalty devolving upon the statutory administrator, to be administered as the statute prescribes, and not otherwise. The same conclusion has been reached by the Supreme Court of Kansas, in Fox v. Van Nooman, 11 Kan. 214, where the administration law follows that of this state. So it is said in Pryor v. Downy, 50 Cal. 899; “No person can fill the position (of administrator tic facto) except by due appointment and qualification. — 582 — Under our system there is probably no such thing as an executor de son tort.” But, it is claimed, our Supreme Court has recognized the office of an executor de son tort, with its common-law incidents, in the following cases: Foster v. Nowlin, 4 Mo. 18; Graves v. Poage, 17 Mo. 91; Magner v. Ryan, 19 Mo. 196. As to the case in the seventeenth Missouri, it is sufficient to say, that was a suit brought by the administrator, de jure, against the alleged wrongful inter-meddler for conversion. That, I hold, is the appropriate remedy in-such cases. And no matter whether we call the tort-feasor an executor de son tort, or by any other name, he is a trespasser, and replevin or trover would lie, according to the fact or status of the property, at the suit of the rightful administrator. The case in the nineteenth Missouri is where the-action was brought as against an executor de son tort; but the case, as'Judge Redfield says, while apparently recognizing in theory an executor de son tort, was permitted to pass off on the ground that the defendant was-not in fact the wrongdoer, and the real actor in the-matter afterwards qualified as administrator de jure, which legalized the wrongful act. Of the case of Swift v. Martin, 19 Mo. App. 488, it is only necessary to observe, the action was brought by the administrator-against the alleged wrongdoer, and falls within the rule of the case in seventeenth Miss'ouri. The reference in the opinion by Hall, J., to the common-law rule respecting an executor de son tort, was merely by way of inducement to the question to be decided, and not as-approving the doctrine as applied to a case where a creditor sues the wrongdoer or intermeddler. No such question was presented in that case. But the question was raised and considered in the-case of Foster v. Nowlin, 4 Mo. 18. A proper under- ' standing of the facts of that case, and a, due observance-of the present statute concerning administrations, and the later rulings of the Supreme Court, do not make583 that case of controlling force, in my opinion. It probably arose under the administration law prior to the statute of 1835, when the system was less complete and less understood than now. The party there charged as executor de son tort set up claim to the property under a bill of sale from the intestate. The plaintiff attacked this transaction as fraudulent against the creditors of the decedent. Mr. Leonard, of the counsel for defendant, at that early day, when our statutory system, and the mind of the profession, were not so fully emancipated from the common-law thraldom as now, discerned and suggested the incompatibility and difficulty of an executor de son tort administering, as a rightful administrator is required to do; and, therefore, contended that it conflicted with the statutory scheme; as a creditor could thereby collect his entire demand, freed from the incidents of probate, classification, and apportionment, exacted by the statute. Judge McGirk seemed inclined to the opinion, though with evident misgivings, that an executor de son tort might, as under the old common-law rule, be required to administer as a rightful administrator. But, I presume, no lawyer would now, claim that our statute concerning administrations has aught to do with any administrator other than such as is appointed by the probate court, in the manner designated by the statute, nor as to an administration not conducted thereunder. Matter of estate of Hamilton, 34 Cal. 468; Pryor v. Downey, supra; Tyler v. Bell, supra; Weise v. Moore, 22 Mo. App. 535; Wilson v. Wilson, 54 Mo. 215. Staggered with the force of Mr. Leonard’s suggestion, Judge McGirk said: “The answer which first occurs to us is, that if this were proved to be the case (the instance of some friend of the creditor wrongfully taking possession of the assets, and the creditor suing him as executor de son tort, thereby getting the whole of his claim to the possible exclusion of other creditors), courts of chancery would interfere and compel the creditor to submit to an apportionment; would, if necessary, enjoin such proceedings ; and even — 584 — in cases where there is no confederacy, where assets ought to be apportioned, would compel an apportionment.” This suggestion is opposed to the later holdings of the Supreme Court, and conflicts with the whole policy and scheme of our present administration law. In Titterington v. Hooker, 58 Mo. 596-7, Hough, J., said : “Under our statute, demands against the estate of any deceased person are divided into six classes, and are required to be paid in the order in which they are classed, and no demand of one class shall be paid until all previous classes are satisfied. This order of priority could not be disregarded even by a court of equity. If the bill could be maintained, it would be the duty of the court to ascertain whether any debts in the classes having priority over the other classes to which plaintiff ’ s claim belongs remained unpaid, and if so, and the value of the estate sought to be subjected to the satisfaction of plaintiff’s claim did not exceed the amount of such unpaid debts having priority over his, to give judgment for the defendants. If there remained no debts in the prior classes unpaid, but debts in the same class, the amount of such unpaid debts should be ascertained, and ■the proceeds of the lands in the hands of the heirs be divided ratably between them. The whole settlement of the estate might thus be transferred from the tribunal specially established by the statute for the administration of estates to a court of equity, and that, too, after final settlement, having the validity of any other judgment from which there has been no appeal, and which remains unassailed on account of any fraud. * * * We are of opinion, that the precise and simple, yet effective provisions of our administration law, whereby the whole estate of a decedent, both real and personal, may be subjected to the payment of his debts were designed to entirely supersede the more cumbrous machinery of the common law, and that the whole doctrine of equitable assets, marshaling assets in equity for the payment of debts, and bills for discovery of assets and account, is without application here, save in — 585 — so far as the principles underlying those proceedings may be involved for illustration or explanation of analogous remedies by our statute.” This was followed in Pearce v. Calhoun, 59 Mo. 274, in which Wagner, J., observed: “Our probate courts were established with extensive powers and jurisdictions, for the purpose of doing everything necessary to the full and final administration of an estate. Both real and personal property are under their control for the payment of debts. They possess about the same powers formerly exercised in England by the ecclesiastical and chancery courts. They are authorized to collect the assets of the deceased, to allow claims, to direct their payment, * * * and to make distribution to the parties entitled thereto, and in general to do everything essential to the final settlement of the affairs of the deceased, and the claims of creditors against the estate. With a tribunal clothed with such ample powers, all parties have a sufficient protection and opportunity for the assertion of their rights; at least, if they attempt to proceed otherwise, very strong and satisfactory excuse should be shown for the failure to present the claim in the mode prescribed by law.” The suggestion made by Judge McGirk, above mentioned, was not essential to the determination of the case before the court. And the opinion ultimately was bottomed upon substantial ground. The administrator, if there had been one, could not have assailed the bill of sale, or other act of his intestate, for fraud. Such property, in contemplation of law, is not an asset of the estate passing to or recoverable by the administration. Brown v. Finley, 18 Mo. 375; Criddle v. Criddle, 21 Mo. 522; George v. Williamson, 26 Mo. 190; Merry v. Freeman, 44 Mo. 518. In respect of property thus held in trust, by equitable implication, it has ever been the recognized right of a creditor of the fraudulent assignor to pursue it in chancery, and subject it to the payment of his debt, as it is not a legal asset recoverable by the administrator of the assignor or grantor. In all — 586 — such instances the maxim applies: Qui prior est tempore, potior est jure. It then becomes a race of diligence among the creditors, and he who is first in action is first requited. George v. Williams, 26 Mo. 190; Pullis v. Robinson, 73 Mo. 201. For that reason the action -of Foster v. Nowlin was sustained. But the property in the hands of the defendant here was property assets which passed to and were-recoverable by the administrator. State ex rel. v. Moore, 18 Mo. App. 406. And where the assets have thus been wrongfully appropriated by the intermeddler, as said in Brasius v. Odum, 17 Ark. 128, “the remedy provided against him is essentially intended to be at the suit of the rightful administrator.” Why, then, any longer recognize in our practice the right of a single creditor to go around the administration law and sue the intermeddler ? If no letters of administration have been taken out by the next of kin, any creditor interested in the estate can go to the probate court and secure the appointment of some suitable person to act as administrator, or secure the appropriate order directing the public administrator to take charge. The administrator is then under bonds, armed with plenary power, and every active agency of the law and the courts, to discover and recover any and all assets of the estate. In this way, and no other, can the wise and just policy of the administration law be accomplished in securing to the creditors and distributees an honest administration of estates, and an equitable apportionment and distribution thereof, while the remedy pursued by the plaintiff in this action tends to defeat all this, and is at war with the high purpose and policy of the statute. Other errors are assigned by appellant; -but under the view above taken it is unnecessary to determine them, as this action is not maintainable. It follows that the judgment of the circuit .court is reversed, and the petition dismissed. Hall, J., concurs; Ellison, J., non-concurs in a separate opinion. — 587 — Ellison, J. I do not wish to be understood as saying the foregoing opinion is right or wrong. I, however, believe it to be in conflict with Foster v. Nowlin, 4 Mo. 18, and Magner v. Ryan, 19 Mo. 196. If the views announced by the court in this case are to be considered the law of the state, I think it will be more satisfactory, in view of these cases, to have the Supreme Court so declare. The case will, therefore, be certified to the Supreme Court.