State ex rel. Miller's Administrator v. Bidlingmaier

Scott, Judge,

delivered the opinion of the court.

There seems to be a departure from correct principles in the management of this suit. This is to be attributed to the action of the probate court in permitting the same individual to represent interests hostile to each other. The record offered in evidence shows that Adolph Kehr — as administrator of Jacob Müller, who was administrator of Catherine Muller — voluntarily appeared in court, and made a settlement of his account as such administrator, he (the said Adolph Kehr) being also the administrator of Catherine Muller. Adolph Kehr, as administrator of Catherine Muller, could not settle an account with the same Adolph Kehr, as administrator of Jacob Muller. As the claims of the two estates were antagonistic they should have been represented by different persons. As this dilemma was produced by the taking upon himself the administration of two estates the interests of which were conflicting, Kehr should have resigned one of those administrations when this conflict of interest appeared. Fair dealing required such a course, and it was necessary to preserve the proceedings from suspicion. If any error had been committed in such a proceeding to the prejudice of Jacob Müller’s estate, who was there to protect it by an appeal? The administrator was interested by way of commissions in making the settlement. There is no other mode of treating such irregularities than by regarding the proceedings in which they occur as nullities. This is in accordance with the principle of Caldwell v. Lockridge, 9 Mo. 358 , which maintains that, where a proceeding was had in the county court under such circumstances that a party affected by it had no opportunity of appealing, the proceeding would be regarded as a nullity.

*486 The real plaintiff, Kehr, not yet satisfied, brings this suit, by which he would reap the fruits of his conduct in the probate court. Although this action is brought in the name of the State nominally, yet the real party is he for whose use the suit is brought. That party is Adolph Kehr, as administrator of Catherine Muller. The suit is brought on a bond in which Jacob Muller is the principal, and the same Adolph Kehr is his administrator. It is true it is only against the sureties to the bond. But have not those sureties a right to all the defence that the administrator of Jacob Muller could make to the action ? All the books, papers and accounts, to the use of which the securities are entitled, are in the hands of him who is prosecuting this suit. So, in effect, Adolph Kehr, as administrator of one estate, is prosecuting a suit against Adolph Kehr, as administrator of another estate. How is the defendant’s estate to be protected ? It is not for Kehr, with the bias on his mind, to determine whether it is indebted or not. That estate should be defended by one who has not an interest that it should go undefended. By holding on to the administration of Jacob Muller’s estate, he puts it out of the power of these defendants to make a defence. Had this suit been brought against the administrator of Mül-ler as well as against the sureties, the irregularity of the proceeding would have been apparent; but Kehr, availing himself of the statute which allows any one or more of the parties to a contract to be sued, omits suing himself, and only sues the sureties, he himself representing the principal in the bond. A party by his own act should not obtain this undue advantage. There is no reason nor necessity for making the law the instrument of such injustice. There is no want of persons willing to become administrators. The interests of estates should not be sacrificed that one man may administer many of them. The whole difficulty would have been obviated if Adolph Kehr, as soon as it was apparent that the interests of the estates of Jacob and Catherine Müller were hostile to each other, had yielded up the administration of one of them. The securities of Jacob Müller have just cause *487 of complaint against such proceedings; and when there is no necessity for it, the law should not tolerate them. It was not in the power of the sureties of Jacob Müller to have had his administrator, Kehr, removed, that they might have had the benefit of a defence supported by such evidence as might have been in the hands of the administrator. The power in the court to compel a production of papers had nothing to do with the case. By his undue desire of administrationships, Kehr could not impose on the defendants any such burden, who had a right to all the aid in their defence that a lawful and faithful administrator of Müller could give them.

The case does not involve the question whether in this state an action can be brought against an heir on the bond of his ancestor before the administration is settled and the debts are paid. It is averred in the petition that the administration on the estate of Finche was closed; from which we infer there was no other debt than this, as there was no point made in relation to it in the court below.

The judgment is reversed and the cause remanded;

the other judges concur.