McDowell v. Orphan School of the Christian Church , 87 Mo. App. 386 ( 1901 )

ELLISON, J.

It will be observed that the petition charges that Harrison McDowell died in 1859. That by his will he left to Samuel McDowell $250. That afterwards, in 1865, Samuel McDowell died leaving plaintiffs as his only heirs and leaving no debts and no assets except the legacy of $250.

A demurrer was sustained to the petition. The ground of the demurrer is that the title to the money willed to the ancestor of these plaintiffs did not pass to plaintiffs as heirs on the death of the ancestor, but that it will vest in an administrator if one shall be appointed and remain in abeyance until such appointment.

We held in Becraft v. Lewis, 41 Mo. App. 546, and State ex rel. v. Moore, 18 Mo. App. 406, that, in this State: “It is fundamental law, first, that on the death of any one leaving property, the administrator takes the title to the personalty, while the heir takes the title to real estate; second, the heir or devisee of personal property can only secure the title through administration. And this is true though there are no debts, and the heir be the sole distributee.” And in Green v. Tittman, 124 Mo. 372, where all the principal authorities in this State are cited, it was said that: “There are numerous decisions in this State holding that it is absolutely necessary that the personal estate of a decedent pass through administration before the heirs are entitled to their distributive shares,t prior to which time an administrator must represent them.”

Yet, notwithstanding this well-established rule of law, and notwithstanding the broad language used in stating it in the eases cited, we know that necessarily (under our system) the administrator is not the absolute owner of the personalty and that after all, his intervention is not always essential under all circumstances: Smarr v. McMaster, 35 Mo. 349; Chandler v. Stevenson, 68 Mo. 450. For instance, where there are no debts and the heirs are of age and willing, there may be a domestic partition, without an administrator having been appointed. McCracken v. McCaslin, 50 Mo. App. 85. This is recognized in State ex rel. v. Moore, supra. In State ex rel. v. Matson, 44 Mo. 305, it was held that the debts being paid, the heirs could maintain an action against the administrator for money in his hands, though no order of distribution had been made. That if there were no debts left unpaid the heirs had a vested legal interest. In State to use v. Thornton, 56 Mo. 325, the same rule was stated. In that case an administrator was appointed. He made an annual settlement showing money in his hands and then left the State. It was held that the heirs, on proof that there were no debts, could maintain an action for their distributive shares without the appointment of an administrator de bonis non. The case of Green v. Tittman, supra, is not an authority in favor of defendant’s demurrer. It upholds against collateral attack the order of the probate court, appointing an administrator; and it approves of the administrator’s effort in that case to collect the personal estate. But, after giving a statement of judicial decisions in this State on the respective rights of administrator and heir, that case rather intimates that after there is no longer any danger of creditors’ demands being presented, the heir might maintain an action. In other States, upon a showing that there are no debts outstanding, an action can be brought by the heirs without an administrator having been appointed. Ricks v. Hilliard, 45 Miss. 359; Glover v. Hill, 85 Ala. 41; Akin v. Akin, 78 Ga. 24; Roberts v. Messinger, 134 Pa. St. 298; Foote v. Foote, 61 Mich. 181.

In this case the petition stated that there were no debts against the estate of Samuel McDowell, plaintiffs’ ancestor, and that he died iliirly-jive years ago. We are satisfied that in the condition and circumstances stated in the petition, the action was welf brought and the demurrer should have been overruled. It is beyond the range of probability that any debts could now exist against the estate. In State ex rel. v. Matson, supra, the court said: “The length of time that elapsed after the making of the settlement, and before this suit was brought — eight years — leads inevitably to the inference that there were no creditors holding unsatisfied claims; and it shows, also, the necessity of allowing the action to be maintained in a proper case without compelling a resort to the expensive process of appointing an administrator de bonis non.” It will be found that in about all the authorities in this State holding that the title to personalty was so absolutely vested in the administrator as to disable the heir from maintaining an action for it, the consideration of there being no indebtedness did not figure.

In the cases of State v. Fulton, 35 Mo. 323, and Vastine v. Dinan, 42 Mo. 269, it is said, broadly, that no action can be maintained by the heir against the administrator until an order of distribution has been made. That is ordinarily the rule, but it is necessary to limit the broad language there used. Unless limited, those cases must be held to be opposed to the later case of State to use v. Thornton, 56 Mo. 325. In State ex rel. v. Moore, 18 Mo. App. 406 and especially in Becraft v. Lewis, 41 Mo. App. 546, as well as in some of the earlier cases in the .Supreme Court there are expressions which, disassociated from the points decided, support the ruling of the trial court in this case. Those cases state the rule of law as ordinarily applied to cases generally. But, as before intimated, the right of the heir to personal property can be asserted, in exceptional cases, without the aid of administration. The administrator’s title is representative rather than absolute. Llis estate is merely "in autre droit.” Schouler’s Executors and-Administrators, sec. 242.

We therefore hold that in instances, as in this case, where no administration has been had and such number of years Lave elapsed since the ancestors’ death to make it beyond any reasonable probability that there can be any outstanding debts, the heir may, on proper proof, maintain his action for personal property inherited. The judgment must therefore be reversed and the cause remanded.

All concur.