Springfield Grocer Co. v. Walton

BARCLAY, J. This is an appeal from a judgment in the circuit court upon exceptions to a final settlement by defendant as administrator of Samuel W. Walton, deceased. The proceeding originated in the probate court where plaintiffs filed fifty-four exceptions to said settlement. They were fully heard in that court and a judgment reached. The defendant appealed to the circuit court where a trial anew took place. The result of the trial was that a number of the exceptions were sustained and some were not. Both parties appealed to this court; but the appeal of the plaintiffs was not followed up. It has been abandoned, and is ordered dismissed. The appeal of the defendant, administrator, remains. We shall state the facts along with our rulings on the points of law raised concerning them. In view of the conclusion we have reached, it will not be necessary to incumber the official report with the particulars of the accounting. At the outset we agree with the contention of appellant that the cause is to be heard here upon the law and the facts. The scope of review of an appeal from a circuit judgment on exceptions to the final settlement of an administrator, involves an investigation of the correctness of the judgment both as to the facts — 532 — and the law applicable thereto. This appears to ns the rule of procedure either declared or assumed in recent precedents which deal with this subject. In re Danforth Estate, 66 Mo. App. (St. L.) 586; Clark v. Bettleheim, 144 Mo. 259. We accordingly state the principles of law which we regard as governing the facts disclosed by the record before us. 2. One group of exceptions to the final settlement consists of credits claimed by the administrator for items duly allowed by the probate court as fifth-class claims, which he prematurely paid. It appears that the estate can not pay in full all allowances in that class; so the trial court gave -credit to the administrator on those items for such amounts only as they would respectively be entitled to receive upon a ratable distribution of the fund applicable to all the demands allowed in that class. This was undoubtedly correct. The law of our State is explicit in declaring that if the funds of the estate-are “not sufficient to pay the whole of any one class, such demands shall be paid in proportion to their amounts” (R. S. 1899, sec. 210). If the administrator pays on his own motion, upon any demand, a greater sum than it is permitted to receive, under the rule just quoted, he must account to the estate for the excessive payment, as the trial court in this case required him to do. 3. Another claim of the administrator is for a group of credits for items of small demands against the estate, which had never been allowed, but which he paid and took credit for in one of his annual settlements. To support this claim the learned counsel for the administrator rely on the argument that those demands were just and valid. It is insisted that these credits are fully sanctioned by the decision in Jacobs v. Jacobs, 99 Mo. 427. That decision was founded upon a section — 533 — of the law of administration which applied to the case then in hand in the following terms: “Sec. 230. Upon every settlement,' the executor ■or administrator shall show that, every claim for which disbursements have been made have been allowed by the court, according to law or shall produce such proof of the demand as would enable the claimant to recover in a suit at law.” R. S. 1879, sec. 230. We have marked by italics that part of the section which was eliminated at the revision of 1889, when the section was changed into the form in which it now •appears as section 224 (R. S. 1899, same as sec. 223, R. S. 1889). The law as it stood in the revision of 1879 was of ancient origin in Missouri. In substantially the same terms it had been in force since 1822 (1 Terr. Laws Mo., p. 929, sec. 33; R. S. 1825, p. 117, see. 60; R. S. 1835, p. 53, sec. 10). When we notice the nature of the change, we are bound to infer that the Legislature meant to alter decidedly the practice which had grown up under the prior law, and which the administrator in this case followed. In arriving at the true intent of an existing law 'it is at least proper, if not, indeed, imperative, to observe the older law from which it was evolved, and to give such effect to changes as may seem to have been designed thereby. The legislative history of a statute is often (as in this instance) a helpful guide to the true meaning of the enactment as it last appears. The alteration of the law in question was intended to make the allowance by the court an essential prerequisite to the payment of all ordinary demands against an estate. The case of Jacobs v. Jacobs, 99 Mo. 427, is not applicable to the statute as it now reads, by which the case at bar must be governed. The credits claimed, therefore, could not properly — 534 — be allowed to the administrator, where any interested party excepts or objects thereto on final settlement, as several creditors have done in this case. The credits accorded to the administrator for these items in one of the annual settlements were subject to review on the final accounting. The trial court was right in refusing to approve those items of credit, under the existing law. 4. Credit is asked by the administrator for items covering part of the expense of surveying a line between land owned by the deceased, Mr. Walton, in his lifetime and that of an adjoining proprietor. The-trial court finally refused the credit on the ground that the administrator had never been ordered to take-charge of the real property of the deceased, and had never been ordered to have the survey made. 'The items, however, had been included in one of the annual settlements which the probate court approved. But these facts do not improve the standing of the items, in view of the total absence of either of the orders of' the probate court above mentioned, the positive language of the statute and the equally positive decisions construing it. R. S. 1889, sec. 130; Lake v. Meier, 42 Mo. 389; Hall v. Bank, 145 Mo. 418. The defendant can not support the items by invoking the probate order for the sale of the decedent’s lands to pay debts. That order we can not assume to have been made prior to March 25, 1895, the date when defendant’s petition therefor was filed. Even if the order for sale amounted' to an order to the administrator to take charge of the-land, there is nothing in this record to show that the-items of expense of surveying, for which credit is claimed by the defendant, were incurred before or after the order for the sale of the land. If they were-incurred before that order, the trial court was unquestionably right in its ruling. Here wé must apply the-familiar rule that it devolves on appellant to show error535 affirmatively. In the absence of that showing we should assume that the ruling of the‘circuit court was correct. 5. The credit claimed by the administrator for interest paid on an incumbrance impressed upon the realty by deceased, during his life, was likewise disallowed for want of requisite orders to support such a payment. Our statute deals with this topic as shown by the terms of section 143 (R. S. 1899). The probate court must apply its judgment to determine that steps to redeem incumbered real property shall be taken by. an administrator. In default of any such order, payments by the administrator looking toward redemption of the land are at his peril. If they turn out to the advantage of the estate, he must needs account for the gains, as happened in Scudder v. Ames, 89 Mo. 496. If, on the other hand, Ms payments on that account involve a loss he will be obliged to bear that loss. This undesirable predicament of the administrator is caused by the operation of general principles of 'equity which courts inexorably apply to the conduct of trustees who venture beyond the confines of their trust. The case last cited has been invoked as an authority to support appellant’s contention here that the approval of annual settlements, including the expenditure of funds to pay interest on the incumbrance mentioned, amounted to, or dispensed with, a formal order to the administrator, under section 143’ (R. S. 1899). The case, however, is distinguishable from that at bar in the important particular already adverted to. The court of last resort found as a fact in the Ames case that the act of payment by the admiMstrator was beneficial to the estate, and as the latter reaped the benefit of the redemption of the land, it was bound equitably for the expense thereof, on the strength of the maxim that he who takes the benefit should bear the burden. — 536 — Broom, Max. 706. But the Ames decision is no authority to vindicate the expenditure by the administrator in this case where the outlay was unauthorized, was followed by a loss of the land by foreclosure, and provoked exceptions of creditors who insist that the administrator should shoulder the loss. The administrator’s course was unwarranted, and we see no tenable ground on which to place a reversal of the circuit court’s ruling concerning it. Keet v. Baker, 141 Mo. 175; Clark v. Bettelheim, 144 Mo. 258. The administrator, it is true, was fortified at. the time by an order for the sale of the land (part of which was incumbered) to pay the debts of the estate and he was furthermore harassed, importuned and threatened with foreclosure by the holder of the secured demand. He also petitioned the probate court for an order of approval of the interest payments, after they were made and after the final settlement had been filed. The court-made the desired order ; but it was too late to protect the defendant. It could not make valid the unauthorized payments when challenged at the review of the final settlement by creditors having unsatisfied demands, duly allowed. 6. So far as concerns the commissions due to the administrator, the trial court limited them to his percentage upon disbursements which the court finally approved. Those which were not approved were held not entitled to be estimated in arriving at' the administrator’s charges. The appellant claims that the latter should have been included. We do not see it so. 7. It does not appear needful to comment specially on the other assignments of error further than to say that they fall within reach of the rulings already made. There may seem to be some hardship in the conclusion we announce, but it results from the inexorable bearing of the law of our State concerning administra — 537 — lion, which has fixed certain checks on the freedom of action of executors and administrators in winding up an estate. The hardship of a particular case does not warrant a departure from the mandates of a law intended for the protection of the beneficiaries of such trusts. We have no doubt that the administrator, in the case at bar, acted in good faith and with an entirely honest purpose. But in so far as he omitted to observe the steps pointed out by the statutes to justify the expenditures in question, he took the risk of the ■outcome which confronts him. We find no error in the judgment of the circuit court. It is affirmed and the appeal of plaintiffs is ■dismissed. Bland, P. J., and Goode, J. concur.