Babb v. Ellis

Henry, J. This was a proceeding in the probate court of Boone county by the administrator of Cochran, against the administrator of Pierce and his securities on his bond as administrator of said estate of Cochran, under section 68, page 487, General Statutes of 1865, to recover a large sum of money which his successor, as administrator of [465] Cochran’s estate, alleged that Pierce, (his predecessor in said administration,) had wasted. A judgment was rendered against defendants, from which they appealed to the circuit court, where plaintiff was again successful, and they have appealed to this court. 1. administration: suretfesof deceasea administrator. The first question to be disposed of relates to the jurisdiction of the probate court. Section 67 and 68 of the Revision of 1865, are found immediately succeeding sections which relate exclusively partnership estates. Sections 52 to 66, inclusive, by their express terms apply to partnership estates only, and whether the remaining sections of that article, 67 to 74, inclusive, apply to other than partnership estates, is the question for solution. There is nothing whatever in the phraseology of either of. those sections which restricts its application to partnership estates. The trouble arises from the act of the revisors in placing all of those sections under a general heading, “ Of Partnership Estates,” a subdivision made by them and not the legislature. It is manifest that section 74, the last of those sections, does not relate exclusively to partnership estates. It provides that: “ This act shall not be so construed as to prohibit any justice or clerk of any county court not having probate jurisdiction, from becoming an executor or administrator, or from being security in any bond required by this chapter.” In Brown v. Weatherby, 71 Mo. 153, the proceeding was by an administrator against his predecessor and his securities under section 67. It was an individual and not a partnership estate, and the jurisdiction of the probate court was not questioned, and seems to have been taken for granted by the court. We are all of opinion that section 68 authorized this proceeding in the probate court. [466] 2. DUAL FIDUCIARY j?s1rato?-YcommSl tionmiabSity for íunds' [465] Pending the administration of the estate of Cochran, a suit was instituted in the circuit court of Boone county [466] for partition of the real estate of the intesfate, and assignment of his widow’s dower. Pierce, the administrator, applied to be made a party to that suit, alleging that there was not personal property of the estate sufficient to pay its debts. Tie was made a party, and on May 7th, 1875, a judgment of partition was rendered, that the land be sold, and Pierce was appointed commissioner to make the sale. He sold the land to John Hinton for $7,900 in August, 1875, receiving $2,633.33 in cash, and Hinton’s notes for the balance, payable to Pierce as commissioner. He made report of the sale to the circuit court in August, 1875, and on the 28th day of August, 1875, at a subsequent term, that court, on his motion, made an order that he, as commissioner, pay to Cochran’s widow $1,500,. to O. Guitar $300, and to the officers of the court the costs which had accrued, and the balance to Cochran’s administrator, to pay debts of said estate. From this order the widow appealed to this court, which, at its October term, 1878, reversed the judgment and remanded the cause, holding that the widow was entitled to a greater sum than was allowed her by the judgment of the circuit court. That Pierce, as administrator of Cochran’s estate, had converted to his own use assets of the estate to a large amount, prior to his receipt of the purchase money for the land, is beyond controversy. The only question is, whether his sureties on his bond as administrator, are liable to the estate for the amount received by him for the land. Defendants contend that as administrator that money never came into his hands ; that he received it as commissioner, and never transferred it to himself as administrator, nor could he have done so while the case was pending in this court on Mrs. Cochran’s appeal. There was nothing in the appeal of Mrs. Cochran to prevent Pierce from transferring to himseíf, as administrator, the largest portion of that purchase money. What Mrs. Cochran claimed was a larger amount than was al [467] lowed her for dower and homestead right, which was susceptible of a tolerable accurate computation, and a deduction of the taxes, a definite sum with which she was charged. There was no supersedeas to stay the execution of the order or judgment of the circuit court, and he certainly would not have been in contempt of court by paying to himself, as administrator, the surplus. He would but have complied with that order, and there was no order, either of the circuit court or Supreme Court, forbidding his compliance with it. It would not have been a withdrawal of the funds from the jurisdiction of the circuit court by the commissioner, of his own volition ; but the execution of an order of that court, made in the exercise of its conceded jurisdiction by one who was directed to execute it. 3. --;-. The only remaining question is : Bid Pierce transfer the money received by him as commissioner, to himself as administrator? Some trouble and confusion arise from the dual capacity in which he acted. If another had been commissioner instead of himself, and had paid the money to Pierce, under the order of the circuit court which was made, there could be no question, we think, that his sureties would be liable. They would not be heard to say, that Pierce was not authorized to receive it as administrator, because the commissioner was not authorized to pay it to him. He would in such case, as administrator, have received money belonging to the estate, as then ascertained by the judgment of the circuit court, and subsequently by this court, and their liability would scarcely admit of a doubt. The simple fact of the receipt of the money as administrator, to all of which, within a few hundred dollars, the estate was entitled, no matter how the Supreme Court might decide the questions involved in the widow’s appeal, would have fixed their liability, whether the administrator charged himself with it or not, in a settlement or otherwise, or even executed a receipt for it to the commissioner. [468] Whether, in compliance with the order of the circuit court, Pierce turned that money over to himself as administrator, is to be determined by the evidence. That he did we think it clearly established. He used a large amount of it in a payment made by him to Thos. E. Turney, guardian and curator, under an order of distribution made by the probate court of Boone county, September 29th, 1875. As a further proof that he complied with the order of the circuit court to transfer the purchase money for the land to the estate of Cochran, he paid costs and expenses of the partition suit, and the money which by that order he was required to pay to the widow. Did he intend to obey the order in some of its requirements and disregard the others ? No specific formal act of transfer is shown, but he held it as commissioner, was ordered to transfer it to himself as administrator, after payment of certain sums mentioned in the order. Those other sums he did pay—a portion of this money he used in paying demands against the estate. He kept all his money on deposit in the banks at Columbia, to his individual credit. He had no accounts with the banks as administrator or commissioner, and, his accounts in those banks show that the money collected of Hinton was deposited in the banks to his individual credit and drawn out on his individual checks. We cannot find evidence expressly showing that all of the money received by Pierce as commissioner was used in payment of debts against the estate of Cochran, but, when it is shown that a large amount of that money was so used by him, in connection with the other facts already alluded to, and that the money so used could only have been used by him in that way, lawfully, on the hypothesis that he had transferred the money received by him as commissioner, in compliance with the order.of the circuit court, the inference is by no means forced or unfair to him, or his securities, that he had transferred all of that money to himself as administrator. The record in this cause is so voluminous that we can [469] not attempt to state more than our deductions from the testimony. Objection is made to the testimony of Judge Hinton, detailing a conversation with Pierce and Jno. W. Harris, severally, in which they seemed to have admitted, in effect, that Pierce held the proceeds of the land sale'as administrator of Cochran’s estate. Certainly, if Pierce had charged himself as administrator with this money, in any settlement in the probate court, or in any private memorandum book, kept by him of his acts and doings as administrator, or had placed it to his credit, as such administrator, in the bank, the evidence that he had done so would have been admissible against his securities. It was only by some act of his, under the circumstances, that the money could have been transferred from the commissioner to the administrator. His statement that he had done so was admissible for the same purpose, not as conclusive but as competent evidence of the fact. If he had formally declared to Judge Hinton, probate judge: “ I henceforth hold that money as administrator of Cochran’s estate,” would it not be admissible to prove that declaration, to show that he had, in obedience to the order of the circuit court, made the transfer? So, of the admission of Jno. W. Harris. He was a party to the bond and to the proceeding on the bond, and ■his admission that Pierce held that money as administrator of Cochran’s estate, was admissible against him, and the court was not asked to declare that it was admissible against him only, but the objection was general to its relevancy. But aside from this, there was abundant other evidence to prove the fact admitted by Pierce and Harris to Hinton. All concur in affirming the judgment.