State ex rel. Ivie v. Ewing

[337] OPINION. BOND, J. (After stating the facts as above.)— I. Distribution, The appellants complain of the findings by the conrt that the administration was indebted for the market value of twenty-four shares of bank stock at the time of the judgment. There is no merit in this contention. The additional abstract of respondents discloses that their petition was amended on the trial by interlineation, so as to charge that the twenty-four shares of bank stock in the hands of the administrator had a market value of $181 per share. The evidence of this fact was not attempted to be controverted. The only inquiry therefore is whether the order of the circuit court, pending the appeal to'the Kansas City Court of Appeals, for the distribution of the portion of the judgment which was not appealed from, was such an election by the plaintiffs as to debar them from demanding in the present suit, the delivery of the bank stock in kind and an accounting for the dividends thereon, which the administrator admitted on the trial he had collected. There was no election by the plaintiffs on this, state of facts, even if it be conceded (which is denied by their attorney) that the motion for the order of distribution was made on their behalf. It stands confessed that the defendant has not paid a dollar under that order, and the very judgment, a part of which was so certified to the probate court, provided that the plaintiffs should have the right to take the stock then in the hands of the ■ administrator, or its value at that time, as fixed in that judgment. Hence, when the order in question became a- record in the probate court, the plaintiffs as distributees under the terms of the judgment as well as the express provisions of the statutes, would have been [338] entitled to choose whether they would take the specific personal property in the hands of the administrator, or its proceeds. [R. S. 1909, secs. 247, 248, 249.] The record shows that the defendant administrator has never tendered them the bank stock in specie, but has appropriated it to himself, and that they have refused his proffers of a partial distribution for that reason. The case cited by appellant, Tower v. Compton Hill Improvement Co., 192 Mo. 379, has not the remotest analogy to the facts in this case. The facts there arose out of the sale of land upon restrictions in the deed as to the cost and kind of improvements to be erected. In consideration of which, the grantor agreed not to subdivide his adjoining property into smaller quantities than 100 feet. Two actions were brought, one by the grantee for breach of that covenant on the part of the grantor, who defended that plaintiff had been guilty of a prior breach of the building restrictions. Plaintiff was cast in the suit whereupon defendant brought another action for a forfeiture and was held to be precluded by the alternative defense which he had made to the former suit. In the case at bar there was nothing in the certification to the probate court of Scotland county which implied a refusal on the part of the plaintiffs to receive from the administrator the shares of bank stock to which they were entitled. They were still entitled to demand of him that specific property which he should have delivered to them unless they refused to take it. Instead of so doing, he sought to make them settle on a moneyed basis. This they declined to do. II. interest Appellants finally complain that interest was charged against the administrator on the amount s^owl1 tile judgment to have been due on a previous settlement and on dividends received by him, and on the $2500 repaid to him after the [339] decision, of the Kansas City Court of Appeals. There was no error in such charge. The evidence abundantly shows that he had either converted this property to his own use, as he did the bank stock, or failed to distribute it as required by law, and hence was guilty of maladministration and properly chargeable with interest. [R. S. 1909, sec. 231; Julian v. Wrightsman, 73 Mo. 569; In re Peters v. Berkemeier, 128 Mo. App. 666; Madden v. Madden, 27 Mo. 544.] The undisputed facts show that this administration has lingered nearly eighteen years, with practically no debts against the decedent. The judgment rendered below is in all respects correct and based upon a very conservative estimate of the 'liabilities of the administrator, and is affirmed. PER CURIAM. — The foregoing opinion of Bond, J., in Division No. 1 is adopted as the opinion of the Court In Banc. Graves, Bond, Walker, Faris and Blair, JJ., concur; Brown, J., concurs in result; Wood-son, C. J., expresses his views in a separate opinion. WOODSON, C. J. In my opinion respondents are allowed too much interest.