Elstroth v. Young

GOODE, J. Tbe mandate directing tbe surplus, less [422] the value of the homestead interest; to be distributed among the creditors, neither said nor meant that none of it could be used for anything else. There are some deductions which ought to be first made. The administrator is entitled to take out his commission (section 222, Revised Statutes 1899), taxes paid by him and expenses of administration, including reasonable compensation for necessary legal assistance whether in this matter or others arising out of his duties. He is not entitled to commission on the homestead portion. What the second appeal determined was, that the residuary surplus may be applied by this probate proceeding to the payment of the demands. But the creditors must be postponed to the necessary burdens of administration; that far this money is like the other assets. Dix v. Morris, 1 Mo. App. 93; Crenshaw v. Bentley, 31 Mo. App. 75; Gov. ex rel. v. Chouteau, 1 Mo. 131. The demands should be paid according to their classification and priority. This is true whether they are paid from the proceeds of personalty or realty. The distinction between legal and equitable assets and the doctrine of marshalling, is obsolete in this State. Titterington v. Hooker, 58 Mo. 593. The allowance to the minors stands on a different footing. It can only be appropriated out of the personal assets and can not be made good from the proceeds of land sales when the personalty is deficient. Ritchey v. Withers, 12 Mo. 556; In re Motiers’ Estate, 7 Mo. App. 514; Jewell v. Knettle, 39 Mo. App. 262; Paine v. Paulk, 39 Me. 18; Jelly v. Elliott, 1 Ind. 119; Thompson on Homesteads and Exemptions, sec. 910. The surplus went to the administrator by the terms of the deed of trust, but for which it would have gone, according to our law, .to the heirs until subjected by a proper proceeding to the payment of debts. It retains the attributes of real estate in respect to being exempt from the statutory allowances. Cox v. McBurney, 2 Sand. 561; Allen v. Allen, 12 [423] R. I. 301; Barnum v. Meserve, 8 Allen (Mass.), 158; Dunning v. Ocean Bank, 61 N. Y. 497; Shaw v. Loadley, 8 Blackf. 165; Jones on Mort., sec. 1931; 1 Woerner’s Ad. Law, 595. The net surplus should be disposed of in the manner indicated. Judgment affirmed. All concur.