Bell v. Farmers & Traders Bank

ALLEN, J.

Dow M. Glover, a resident of the State of Iowa, died intestate at Wyaconda, Missouri, on July 12, 1911. It appears that he had lived in the State of Iowa for about ten years, but being in bad health he came to the home of his father, B. P. Glover, in Wyaconda, on the fifth or sixth day of June, 1911, intending to remain but a short time and to go to a sanitarium. On June 7, 1911, a day or two after coming to his father’s home, he deposited in defendant bank $1300, and on the twentieth of -the same month deposited the further sum of $150. Defendant issued to him time certificates for these respective amounts, to *386 bear interest at three per cent per annum, should the money so long remain in defendant’s hands. He also deposited $51.19 on current account, making a total of $1501.19 thus placed with defendant bank. He left surviving him, as his heirs, his father, a brother residing in this State, and a sister who resided in Iowa. After his death, the heirs arranged with defendant bank to pay over to them the above-mentioned funds in its hands, upon the payment by them of the funeral bill and expense incurred for medical attention, etc.; it appearing that the deceased owed no debts at the time of his death beyond such as had been contracted during his illness at his father’s home. This plan was carried into effect, and pursuant thereto the bank paid to the heirs the funds held by it; and after deducting the amount of the expenses aforesaid, the heirs made distribution of the remainder thereof among themselves.'

Thereafter, on or about August 29,1911, though no administration had been had, the probate court of Clark county, at the instance of the county collector, made an order appointing an appraiser to appraise the estate of Dow M. Clover, deceased, for the purpose of collecting the collateral inheritance tax claimed to be due upon the distributive shares of the brother and the sister. The appraiser filed a report showing that the deceased had on deposit in defendant bank, at the time of his death, the above-mentioned sums of money; whereupon the probate court made an order purporting to assess the collateral inheritance tax. At the instance of the collector, further proceedings were had in the probate court which resulted in the appointment of one Kurtz, cashier of defendant bank, as administrator of said estate. Kurtz, however, declined to qualify, and on October 12, 1911, the court ordered that plaintiff, public administrator, take charge of the estate. On November 18, 1911, plaintiff, as such administrator, instituted this action.

*387 The petition, which is in three counts, seeks to recover from defendant the said sum of $1501.19, with interest, upon the theory that the title thereto became vested in plaintiff as administrator. It appears that subsequent to the institution of the suit the brother and the sister of deceased paid the collateral inheritance tax assessed against their respective shares.

The cause was tried before the court, without the intervention of a jury, and resulted in a judgment for defendant, from which plaintiff prosecutes this appeal.

As shown above, the action is here not one to recover a collateral inheritance tax, but proceeds upon the theory that plaintiff, as administrator, succeeded to the title to the property in question, and may recover it from the defendant regardless of the previous distribution thereof among the lawful heirs of the deceased; though the suit grows out of an attempt to collect such tax. It appears that the heirs took the position that because of the fact that the deceased was a resident of the State of Iowa, and but temporarily at his father’s home, the'property was not subject to the tax. But whether or not these funds were property in this State subject to the tax, is a matter which we deem it unnecessary to pass upon, under the circumstances.

Appellant urges that the heirs could acquire no title except through the administrator; that plaintiff succeeded to the legal title to the property, and that the defendant’s payment thereof to the heirs affords it no protection in the premises whatsoever. The general rule undoubtedly is that title to personalty will pass to and vest in the administrator or executor. But though this be true, where no debts appear against the estate, and the heirs or legatees are all of lawful age, and, by common consent and without fraud or mistake, make a .distribution of the personal assets among themselves, dispensing with administration, our courts have frequently held that the equitable inter *388 ests of such heirs or legatees should then he regarded as the whole title. This exception to the general rule appears to proceed upon the theory that the equitable title is always in the distributees, and that where, under circumstances such as those mentioned above, a distribution has been effected, a court of equitable cognizance will not divest the title so acquired in favor of an administrator, who is a mere trustee for creditors and distributees. [See Richardson v. Cole, 160 Mo. 372 , 61 S. W. 182 ; Mahoney v. Nevins, 190 Mo. l. c. 368, 88 S. W. 731 ; Painter v. Painter, 146 Mo. App. l. c. 602, 124 S. W. 561 ; Bank v. Hoppe, 132 Mo. App. 449 , 111 S. W. 1190 ; Pullis v. Pullis, 127 Mo. App. 294 , 105 S. W. 275 ; Griesel v. Jones, 123 Mo. App. 45 , 99 S. W. 769 ; McDowell v. Orphan School, 87 Mo. App. 386 ; McCracken v. McCaslin, 50 Mo. App. 85 ; In re Langraf Estate, 183 Mo. App. 251 , 168 S. W. 268 ,]

In Painter v. Painter, supra, l. c. 601, 602, it is said: “In strictness of law the title should have passed to them (legatees) through personal representatives of the deceased and an administration of his estate.' But so far as appears, there were no creditors, the legatees were of age, and in such circumstances a distribution of personal assets by the heirs or legatees without administration has been tolerated and the title treated as in them, though the regular method of devolving the title of a decedent by administration had been omitted;” citing a number of the foregoing authorities.

It is true that it is not possible to know, with certainty, that the deceased left no debts, but it is sufficient on that score if none have appeared, and that the administration is not had in order to enable a creditor to reach the assets. The collateral inheritance tax is not a debt of or a claim against the estate as such. It was not a debt owing by the deceased in his lifetime. It became payable, if at all, at his death, and it attached to the property, or interest therein, passing to the in *389 dividual heir, aud “not as the property or interest therein of the intestate.” [See Sec. 309, Rev. Stat. 1909.] It is true, as appellant asserts, that the tax is “a bonus or duty levied upon the right or privilege of the devisee, heir or distributee, of receiving his share. ’ ’ [State ex rel. v. Henderson, 160 Mo. l. c. 215, 60 S. W. 1093 .] But as said in State ex rel. v. Switzler, 143 Mo. l. c. 329, 45 S. W. 245 , quoted in State ex rel. v. Henderson, supra, “it is a burden on each person claiming succession measured by the value of his interest (received from the testator or intestate) and collectible out of his interest only.”

Under the circumstances we think that plaintiff cannot be allowed to recover from defendant bank, the latter having turned over the property to the equitable owners thereof. The answer sets up the facts shown by way of defense, as above indicated, whereby a valid equitable defense, we think, was interposed.

It is true that the appointment of plaintiff as administrator is not subject to collateral attack in this action (Green v. Tittman, 124 Mo. 372 , 27 S. W. 391 ; Griesel v. Jones, 123 Mo. App. 45 , 99 S. W. 769 ); but to deny plaintiff the right to the possession of the property, under the circumstances, is not a collateral attack upon the order and judgment of the probate court directing him to take charge of the estate, but a determination by a court of equitable cognizance that he was not entitled to the possession of this property. • [See Richardson v. Cole, supra.]

It is urged that to deny a recovery by an administrator, under such circumstances, will have the effect of allowing distributees to avoid payment of the collateral inheritance tax. But we think that this is a non sequitur. Under the statute a civil action will lie against those whose distributive shares are liable to the tax. It is true that this might, in some instances, he unavailing. However, inasmuch as the statute distinctly makes the tax, if one is lawfully assessable, a *390 first lien in favor of the State, to enforce which a civil action may be prosecuted (Sec. 309, Rev. Stat. 1909), it would appear that ample remedy is afforded against one in whose hands property, subject to the tax, may be at the time of the death of the owner, and who delivers over the same otherwise than to the administrator or executor, should the property thus escape taxation. And, in general, the methods of enforcing the tax, furnished by the statute, are such as to leave but little opportunity for one to escape its payment.

The law contemplates that administrations will be had, and it is only in exceptional cases that its omission will be tolerated. It may be said that it does not here appear that the payment over to the heirs and the distribution of the property among them was with the design to evade the payment of the tax, and it will not be presumed that the parties acted with fraudulent intent. No effort was made, in any direct proceeding, to collect such tax. And in the case before us the right asserted by plaintiff administrator to recover from defendant the monies originally in its hands, must, in our opinion, be denied for the reasons above indicated.

Appellant suggests that this judgment be reversed and the cause remanded with directions to enter judgment for plaintiff for the amount sued for, such judgment to be satisfied upon the payment of the costs in the circuit court and-the costs of administration. But we think that plaintiff was not entitled to prevail in his action, and the costs must abide the result.

The judgment will therefore be affirmed. It is so ordered. Reynolds, P. J., concurs. Nortoni, J., being a member of the Board of Curators of the State University, to whose benefit the collateral inheritance- tax enures, is not sitting.