State ex rel. L. Bauman Jewelry Co. v. Taylor

BROADDUS, J. It is admitted that defendant administrator paid out of the assets of the estate $528 as dues on building and loan stock belonging to the estate, which was pledged to the Citizens National Bank as security for an indebtedness of decedept to said bank. The plaintiff contends that such payment was illegal and constituted a breach of the administra [488] tor’s bond. ■ We tbink not. In paying snch dues, the administrator was discharging an obligation incurred by the deceased. It was necessary that they should be paid in order to prevent a forfeiture of the stock. It was held in Jacobs v. Jacobs, 99 Mo. 427, that the payment óf a valid demand by.an administrator was justifiable, although the demand had not been allowed by the probate court. And the same rule applies to all the other payments by the administrator of demands in the fifth class. The administrator paid in full the following demands against the estate, not probated and without an order of the probate court to pay them: a note of Mary A. Anderson for $200; a balance on account of $247.44 due himself, and an account of M. Benjamin for $100. It may be true that these demands may have all been valid, and a payment by the administrator of the' pro rata' part each would have been allowed, but he' was not authorized to the prejudice of the other creditors to pay them in full. It was held in Merritt v. Merritt, 62 Mo. 154: ' ‘ The prevailing rule now established is, that executors and administrators stand in the position of trustees to those interested in the estate upon which they administer, and are liable only for want of due care and' skill, and that the measure of care and sin 11 required of them, is that which prudent men exercise in their own affairs.” The payment under consideration here under the circumstances appears to have been an act of gross negligence, and as such constituted a breach of bis bond. It is admitted that the decedent at his death was the owner of a stock of jewelry'which was appraised at $3,311.99, and which was sold by the administrator upon an order of the probate court made for that purpose," which order directed him to sell the same at not less than its appraised value; and if sold on a credit he was directed to take good solvent notes for the deferred payments. The administrator sold the goods to one [489] Mary Y. Anderson for its appraised value and took her notes for the full purchase price; and after many of the articles had been disposed of, he repossessed himself of the remaining goods and sold them for $7'50. He surrendered the notes, retook the goods and sold them, all without an order of the probate court directing him to do so. He received from Mary Anderson $500 on the notes given for the goods, which, added to that for which they were subsequently sold, made the aggregate sum realized for them $1,250. In making the sale to said Mary Anderson the administrator disregarded the order of the court to take good and solvent notes for deferred payments. To justify himself, the administrator claims that the stock of goods were old and of little value, and that he could not have sold them to any one other than said Mary Y. Anderson; and that he realized all that they were worth. The failure of the administrator to take solvent notes in payment for the goods sold as directed by the court was a breach of his bond, and it is no defense to say that he sold them for more than they were worth to an insolvent person, and was thereby compelled to take them back and make another sale at a greatly reduced valuation. Such a course of dealing was trifling with the estate in his charge and an act of gross misconduct. The charge that the administrator committed a breach of his bond in paying taxes and insurance, and in expending money in repairing the realty, is not well founded, as it was his duty in the preservation of the estate to pay such taxes and insurance, and to keep the realty in repair. They were valid claims. The contention of defendants that, notwithstanding the administrator may have been guilty of a breach of his bond, the plaintiff is not entitled to recover because he has not suffered thereby, as he has already received forty per cent of his demand, which is all he would be entitled to in any event, we do not think can be sustained. The plaintiff received $508.23 from the admin [490] istrator, which is about forty per cent of the amount of Ms allowance, but on the record as it now stands be is entitled to an additional per cent. But it is claimed that when the administrator obtains proper credits to which he is entitled it will be shown that plaintiff has been paid his full share of said estate. That may be true, but we can not anticipate such a result. However, if it shall turn out, on a retrial of the case, that plaintiff has already received his pro rata share of the estate, he will not be entitled to recover on account of said breaches for the reason that he is not damaged thereby: "What has been said will indicate our opinion on the action of the court in refusing to give the instructions asked upon the part of the plaintiff. For the reason'given the cause is reversed and remanded. All concur.