Perkins v. Goddin

NORTONI, J. (after stating the facts). — On the undisputed evidence defendant Goddin occupied the lands under an arrangement whereby he was to pay Mrs. Grey one-half of one-third of the crops, after they were marketed, as rental, and the other one-sixth rental — 438 — he owed to his brothers and sisters and himself. On the date of Mrs. Grey’s death the contract was in force, the crop matured and was being threshed that very day. Her interest therein was $262.18 1-2. Under the well-settled law of this State, on the death of a party, the personal property passes to the administrator, not to the heir, unless it be where the probate court, by order dispenses with an administrator under section 2, of the Administration Statute. R. S. 1899. There was nothing of that kind in this case as shown by the fact that the Boone county probate court took up the administration and granted letters to appellant thereon. On the death of Mrs. Grey the personalty passed to the administrator, and it was not only his right but his duty to sue for and recover the same. Smith v. Denny, 37 Mo. 20; McMillan v. Wacker, 57 Mo. App. 220; State ex rel. Hounson v. Moore, 18 Mo. App. 406; Griswold v. Mattix, 21 Mo. App. 282; Becraft v. Lewis, 41 Mo. App. 546; Adey v. Adey, 58 Mo. App. 408; Jacobs v. Maloney, 64 Mo. App. 270. Respondent contends, however, that the partition suit was an adjudication of all matters between the heirs, that by the stipulation, admittedly signed by counsel representing Ida M. Perkins, counsel whom plaintiff Perkins had employed to represent his wife, and also counsel representing Gustavus H. Grey, who together with Mrs. Perkins were the sole heirs of Mrs. Grey, as well as all other parties to the partition of the lands; that the rents were to be paid to the sheriff on account'and, inasmuch as the court in that case, in its finding and decree, took such rents into account and ordered disposition of the whole matter, defendant having obeyed, at least, in part, the order of the court therein, all said parties, and the administrator as well, are bound thereby; that this case is res judicata and plaintiff cannot recover. “It is essential to the application of the principle of res judicata not only that the person sought to be — 439 — bound by tbe former judgment should have been a party to both actions, but he must have appeared in both in the same capacity or character. Thus, a judgment for or against an executor, administrator, guardian, assignee or trustee in a suit in which he appears in his representative capacity does not generally conclude him in a subsequent action in which he appears as an individual to protect or vindicate his own personal interest or right and e converso for or against a person acting in his individual right is not conclusive upon him in a subsequent suit in which he appears in his representative capacity.” 24 Am. and Eng. Ency. Law (2 Ed.), p. 734. In this case the plaintiff was not a party to the partition suit, either in his individual capacity or as administrator. It is true he was at the court, heard the decree read in court, had employed counsel for his wife, who was a party to the suit, but Avhat of that in the present case? Here, he has no rights except as administrator, and as such administrator, whom does he represent? Not himself nor his wife alone.. He represents two sets of persons, the creditors of his decedent and the heirs. His first duty is to collect the estate and pay the debts. After the debts are paid there may be something for the heirs. His wife might participate in the remainder but not until then. Let us suppose a case. Suppose that Mrs. Grey, his decedent, died intestate, leaving two hundred dollars in debts, expenses of last sickness and ■funeral, and this $262.18 1-2 owing to her estate. Gan the doctor and undertaker be cut out of their rights to participate in this $262.18 1-2 owing to her because the circuit court proceeded to divide up certain property that by operation of law descended to the administrator and not to the heirs, and over which said court had no jurisdiction in that case? It is argued by appellant that Mrs. Perkins, the wife of the administrator, received her share of this rent by the division of the estate ordered by the circuit — 440 — court and that this suit is brought in order that she, being an heir of Mrs. Grey and Mrs. Grey owing no debts at the time of her death, will receive payment the second time on the final settlement of the administrator, in the event plaintiff recovers. We do not read the record this way. It appears that Goddin and his brothers and sisters were decreed to receive this f524.37, and that Mrs. Perkins and her brother, Gustavus Grey, were decreed nothing on this account in the partition suit. That is immaterial, however, to this controversy. The judgment in that case was not appealed from and is not here for review. Let us grant that by some means, we have not discovered, Mrs. Perkins and her brother did receive their part of said rents, the circuit court had no jurisdiction to award it in that suit, even though the heirs were parties thereto and agreed to it for the reason the interests of the creditors of Mrs. Grey were not represented inasmuch as her estate was not a party to that record. That is no reason why the plaintiff should not recover in this case. The rents owing to Mrs. Grey were no part of the realty and could not be made a part of the estate then being partitioned until the probate court had, by order, under section 2, Revised Statutes 1899, dispensed with administration for the reason the creditors had the first right in the estate. The administrator represented the creditors as well as heirs, in collecting debts and prosecuting and defending claims. Kennerly v. Shepley, 15 Mo. 640; Hughes v. Menefee, 29 Mo. App. 192. No agreement of the heirs and no suit in the circuit court to which Mrs. Grey’s estate was not a party could divest the administrator of the right to collect the estate for the purpose of paying the debts. It is contended by respondent that before appellant can recover, it devolved upon him to show that his decedent left debts unpaid and that creditors were interested, otherwise, he contends, no one can be interested save the heirs, and the heirs were all parties to the partition suit. There is no showing in the record as to — 441 — whether Mrs. Grey was indebted or not. We cannot assume that she died owing nothing. Her funeral expenses, at any rate, would be to pay, and the expenses of her last sickness. Under section 184, Revised Statutes 1899, these are the two very first charges on the estate, and it may be the administrator was seeking to collect this money to pay the doctor and the, undertaker. Judge Ellison has well said: “The suggestion that there were no debts owing by the estate should have little weight. I know of no way short of the period of limitation, by which it can be définitely known that there are no debts left by a deceased person. And if we can dispense with administration simply by offering proof that no debts are known to exists (which is all that testimony could show) we would make much confusion and overturn well recognized modes of procedure.” Becraft v. Lewis, 41 Mo. App. l. c. 553. This court will certainly not presume there were no debts owing by the estate of Mrs. Grey and act upon this presumption to the extent of holding that the heirs were the only parties interested in this debt the administrator is seeking to collect, and that they had divided it satisfactorily in the partition suit; nor can we hold that the plaintiff was required to prove that the estate owes debts. This, the administrator might or might not be able to do. The period for filing demands against the estate not having expired, possibly, the demands have not been presented and the administrator could well be in the dark as to the debts of his decedent; on the other hand, he, in good faith, might believe that she was indebted and it might turn out that she was not. The suit was in conversion and the fact whether or not the estate owed debts was not an issue in the case one way or the other. Mrs. Grey was not herself a party to the partition suit, nor was her estate a party thereto; her creditors, if any, through their representative, the administrator, were not parties. Then how could there have been any adjudication of this matter in that suit simply — 442 — because a portion of the parties, to-wit, the heirs of Mrs. Grey were parties to that record.. To make matters res adjudicate, there must be a concurrence of the four conditions following: identity of the thing sued for; identity of the cause of action; identity of persons and parties to the action; identity to the quality of the person for or against whom' the claim is made.” State to the use v. Hollinshead, 83 Mo. App. 678; Winham v. Kline, 77 Mo. App. 36; Railroad v. Commissioners, 12 Kas. 127. “The persons between whom a judgment or decree in a suit is conclusive in a subsequent suit are the parties to the prior suit and their privies, and as a general rule it is conclusive only between them. The mere fact that a person had an interest in the subject-matter of the prior suit will not render- the judgment or decree therein conclusive upon him.” 24 Am. and Eng. Ency. of Law (2 Ed.), p. 724. Neither Mrs. Gray nor her creditors, who are represented by the administrator, were parties to the partition suit, therefore the proceedings therein could not affect the right of her estate to recover in this action, unless the parties were in such privity as to preclude them. “The term parties as used in connection with the doctrine of res judicata includes all who are directly interested in the subject-matter of the suit and have a right and are given an opportunity to make a defense, control the proceedings, examine and cross-examine witnesses, and appeal from the judgment or decree, in case an appeal lies. Persons not having these- rights, substantially, are regarded as strangers to the cause. A mere nominal party having no control of or interest in the suit is not bound by the judgment.” 24 Am. and Eng. Ency. of Law (2 Ed.), p. 735. The fact that Perkins in his individual capacity, prior to his appointment as administrator, as the husband of his wife, was a party to the original suit and — 443 — employed counsel for bis wife, was in tbe court room and heard the decree read, could not preclude him under the rule above stated. “The judgment in a suit will not operate as an estoppel for or against a person participating in the prosecution or defense, if such person had no interest in the subject-matter of the litigation.” 24 Am. and Eng. Ency. of Law (2 Ed.), p. 739. Certainly Perkins had no interest in the subject-matter of the partition suit. Respondent contends that Perkins was at least privy to the partition proceeding and is therefore bound thereby. That would be immaterial, if he was privy there, as he was not acting in his individual capacity in this case but in his representative capacity as administrator. It is a fact that a prior adjudication is binding upon all parties in privity as well as all parties to the same cause of action between th" same parties in a court of competent jurisdiction about the same subject-matter. Henry v. Woods, 77 Mo. App. 277; Cooley v. Warren, 53 Mo. 166; Mason v. Summers, 24 Mo. App. 174. “The term privity denotes mutual or successive relationship to the same rights of property. The ground, therefore, upon which persons standing in this relation to the litigating party are bound by the proceedings to which he was a party is that they are identified with him in interest; and whenever this identity is found to exist, all are alike concluded.” 24 Am. and Eng. Ency. of Law (2 Ed.), p. 746; Henry v. Woods, supra. Certainly no one can claim that Perkins had “successive relationship to the same rights of property” as his wife and others in the partition suit. “Husband and wife are for most purposes distinct persons at law, and an adjudication in an action to which a wife is a party alone, and in which the husband is not a necessary party, neither binds him in a subsequent action, to which he is a party, nor can he avail himself of the benefit of the adjudication on the ground merely that he was — 444 — her husband.” 24 Am. and Eng. Ency. of Law (2 Ed.), p. 750. “As to her separate property a judgment for or against a married woman in this State is. as effectual, as if she were sole.” Nave v. Adams, 107 Mo. 415, 17 S. W. 958. Perkins was not a necessary party to the partition suit and was not a party to the case finally made up on the amended petition. ' The decree in partition was not appealed from; the heirs all being parties thereto, it is conclusive on them, and in event there are no debts outstanding against the estate of Mrs. Grey, or in the event there will be money» for' distribution after paying the debts and expenses of administration, then the amount involved in this suit, or so much thereof as remains in the hands of the administrator, should be paid to the parties in accordance with the decree in partition. Our conclusion is that the court erred in refusing instructions numbers one, three, four, five and six, asked by the appellant and in giving the peremptory instruction on the part of the respondent. There being no controversy on the facts, the judgment is reversed and the cause remanded with directions to the circuit court to enter judgment for the appellant for the amount sued for, to be dealt with as above indicated. All concur.