Opinion
July 28, 1942.
1. MANDAMUS: Appeal and Error: Executors and Administrators: Taxation: Duty of Administrator to Collect Taxes: Administrator An Aggrieved Party. If the contentions of the administrator are correct, either half or all of the trust estate constitutes assets of the estate of Hazlett Campbell, deceased. It is the duty of the administrator to preserve and collect the estate and to collect inheritance and estate taxes. He was a party aggrieved by the decree which denied him any interest in the trust estate and is entitled to relief by mandamus to compel the allowance of his appeal.
2. APPEAL AND ERROR: Mandamus: Executors and Administrators: Relator Entitled to Appeal on Accounting of Trustees. The relator was entitled to appeal from the order overruling his exceptions to the accounting of the trustees.
3. APPEAL AND ERROR: Mandamus: Executors and Administrators: Relator Entitled to Appeal From Order of Partial Distribution. The relator was entitled to appeal from the order of partial distribution.
ALTERNATIVE WRITS MADE PEREMPTORY.
Igoe, Carroll Keefe and Paul G. Ochterbeck for relator.
(1) Mandamus is the appropriate remedy to compel the allowance of the appeals. In re Campbell, 323 Mo. 757, 19 S.W.2d 752; Hall v. Audrain County Court, 27 Mo. 329. (2) Respondent admitted that relator was made a party defendant on his order and duly summoned into court, and that relator took all of the statutory prerequisites to perfect the three appeals. Secs. 1184, 1186 and 1187, R.S. 1939. (3) Relator's answer and cross bill sets up alternative claims to all or one-half of the personal property therein described. These claims give relator an interest in the subject matter of the suit. However, in this mandamus proceeding, the court will not review the merits of relator's appeal but will only determine relator's right to appeal. State ex rel. Speckerman v. Allen, 92 Mo. 20; State ex rel. Adamson v. Collier, 62 Mo. App. 38; High's Extraordinary Legal Remedies (3 Ed.), sec. 188, p. 190. (4) It is relator's duty as administrator to assert the claims presented in his answer and cross bill so as to recover the personal property held by the plaintiff trustees. (a) It is the duty of the administrator to collect and take into his possession all of the personal property of his decedent. Secs. 38, 57, R.S. 1939. (b) Title to personalty of one dying intestate passes to his administrator, and in the absence of an order of distribution heirs have no interest therein. Jones v. Peterson, 335 Mo. 242, 72 S.W.2d 76; Wass v. Hammontree, 77 S.W.2d 1006; Toler v. Judd, 262 Mo. 344, 171 S.W. 339; Green v. Tittman, 124 Mo. 372, 27 S.W. 391; Todd v. James, 157 Mo. App. 416, 138 S.W. 929; Johnston v. Johnston, 173 Mo. 91, 73 S.W. 202. (5) Missouri and Federal "estate taxes" accrued upon Hazlett's death and are debts secured by lien. Secs. 574, 575, R.S. 1939; 26 U.S.C.A., secs. 422, 427 (1934 Ed.); 105 A.L.R. 1265-1267; Rosenberg v. McLaughlin, 66 F.2d 271; Ewbank v. United States, 50 F.2d 409; Hodgkins v. Commissioner of Internal Revenue, 44 F.2d 43. (a) Demands for taxes need not be presented to probate court for allowance. Sec. 181, R.S. 1939. (b) The fact that estate taxes become a lien on the date of death and are payable after death does not alter the fact that they are debts. Personal property taxes assessed against an estate after decedent's death are debts but not subject to the Statute of Limitations. State ex rel. Zeigenhein v. Tittman, 103 Mo. 553, 15 S.W. 936; State ex rel. Rudder v. Hapke, 326 Mo. 788, 31 S.W.2d 788; State ex rel. Zeigenhein v. Tittman, 119 Mo. 661, 24 S.W. 1032. (6) The Missouri inheritance (legacy) tax gives the State a vested financial interest in the Hazlett Campbell Estate the same as the other distributees. (a) The taking of property by inheritance or by will is not an absolute or natural right, but one created by the laws of the sovereign power. The State may foreclose the right absolutely or partially, or it may grant the right upon conditions precedent. State ex rel. McClintock v. Guinotte, 275 Mo. 298, 204 S.W. 806; Shepherd v. Murphy, 332 Mo. 1176, 61 S.W.2d 746; Natl. Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N.E. 973. (b) An inheritance tax is a tax upon the right of succession and is not a tax upon the property itself. In re Rosing's Estate, 337 Mo. 544, 85 S.W.2d 495; State ex rel. McClintock v. Guinotte, 275 Mo. 298, 204 S.W. 806; Natl. Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N.E. 973. (c) The right of the State to inheritance taxes vests upon the death of the decedent. Sec. 578, R.S. 1939; Natl. Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N.E. 973. (d) The State has a vested financial right in the estate of every decedent which is subject to the payment of an inheritance tax, and that right is equal in degree to that of the personal representative, the heir, or the devisee of the decedent and it vests at the same moment of time that the interest of the personal representative, heir or devisee vests. Natl. Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N.E. 973; People v. Graw, 363 Ill. 205, 2 N.E.2d 71; People v. Strom's Estate, 363 Ill. 241, 2 N.E.2d 94. (e) Relator as administrator is made personally liable for collection and payment of Missouri inheritance and estate taxes. Sec. 579, R.S. 1939. (7) Under the Federal statutes, relator as administrator had certain positive duties to perform and he is made personally liable for the payment of the estate taxes. (a) Administrator is compelled to give notice within two months after death of decedent that tax may be due under Section 304 of Revenue Act of 1926 and Section 403 of Revenue Act of 1932. 26 U.S.C.A., secs. 420, 537 (1934 Ed.). (b) Administrator is required to prepare and file estate tax return, in duplicate, under Section 304 (a) of the Revenue Act of 1926. 26 U.S.C.A., sec. 421 (1934 Ed.). (c) Where decedent died after August 31, 1935, tax is due and payable fifteen months from date of death. Section 305 (a) of Revenue Act of 1926 as amended by Section 203 (a) of Revenue Act of 1935. 26 U.S.C.A., sec. 422 (pocket part — 1934 Ed.). (d) Administrator is personally liable for estate tax. 26 U.S.C.A., sec. 422 (b) (1934 Ed.). He can only be released from personal liability by applying for discharge from such personal liability under Section 313 (b) and (c) of Revenue Act of 1926, 26 U.S.C.A., sec. 425 (1934 Ed.). (8) Relator as administrator is in reality a trustee for the benefit of creditors, heirs and distributees. Love v. White, 348 Mo. 640, 154 S.W.2d 759.
William M. Fitch for respondent.
(1) Mandamus is not a writ of right. Its issuance lies in the sound judicial discretion of the court. State ex rel. Cranfill v. Smith, 330 Mo. 252, 48 S.W.2d 891; State ex inf. Barker, Atty. General, ex rel. Kansas City v. Kansas City Gas Co., 254 Mo. 515, 163 S.W. 854; State ex rel. Howe v. Hughes, 343 Mo. 827, 123 S.W.2d 105; State ex rel. Crow v. Boonville Bridge Co., 206 Mo. 74, 103 S.W. 1052; High on Extraordinary Legal Remedies (3 Ed.), sec. 9. (2) The writ of mandamus is an extraordinary remedy, the granting of which rests with the sound discretion of the court, and such discretion must be exercised to deny the writ unless relator proves a clear legal right to the relief demanded. The burden of establishing such clear legal right rests upon relator. State ex rel. v. Hudson, 226 Mo. 239, 126 S.W. 733; State ex rel. Thomas v. Williams, 99 Mo. 291, 12 S.W. 905; State ex rel. People's Ry. Co. v. Talty, 139 Mo. 379; State ex rel. Kern v. Stone, 269 Mo. 334, 190 S.W. 601. (3) The extraordinary writ of mandamus should not be granted to relator in this case because relator has two statutory remedies open, each of which would afford the administrator complete relief: (1) under Section 1189, R.S. 1939, which provides that the appellant may present the record, together with his assignment of errors, to a judge of the Supreme Court, which Judge is empowered to grant the appeal upon a prima facie showing so made; and (2) under Section 1200, R.S. 1939, the administrator, relator here, had the statutory right to prosecute his writ of error in the Supreme Court, for the purpose of reviewing all proceedings in said controvesy, whether the errors complained of arise on the record proper or on exceptions preserved during the trial of such issues. A writ of error is a writ of right, and the administrator had that remedy available as a matter of right. He therefore has no right in this case to relief under the extraordinary remedy of mandamus. State ex rel. Howe v. Hughes, 343 Mo. 827, 123 S.W.2d 105; State ex rel. Spring River Electric Power Co. v. Thurman, 232 Mo. 130, 132 S.W. 1157; State ex rel. Porter v. Hudson, 226 Mo. 239, 126 S.W. 733; State ex rel. Tate v. Sevier, 334 Mo. 771, 66 S.W.2d 50; State ex rel. Crow v. Boonville Bridge Co., 206 Mo. 74, 103 S.W. 1052; State ex rel. Herriford v. McKee, 150 Mo. 233, 51 S.W. 421. (4) The writ of mandamus will be refused where, if granted, it would be unavailing, or where the act to be performed would be unlawful, for the court will not compel the performance of a vain or unlawful act. State ex rel. Cranfill v. Smith, 330 Mo. 256, 48 S.W.2d 891; State ex rel. Wilcox v. Draper, 50 Mo. 24; Harrington v. Denny, 3 F. Supp. 584; Foster v. Mansfield, C. L.M.R. Co., 146 U.S. 88, 36 L.Ed. 899; Gilbert v. Auster, 135 Wis. 581, 116 N.W. 177; Rust v. Conrad, 47 Mich. 449, 11 N.W. 265; Dixie Grain Co. v. Quinn, 181 Ala. 208, 61 So. 886; Ferris on Extraordinary Legal Remedies, secs. 196, 204. (5) The appellate court will not by mandamus compel the judge of the trial court to grant an appeal which he has refused, where it appears on the face of the record proper and the admissions of the parties that the appeal applied for could give appellant no relief if appeal be granted. State ex rel. People's Ry. Co. v. Talty, 139 Mo. 379, 40 S.W. 942; State ex rel. Fischer v. Vories, 333 Mo. 197, 62 S.W.2d 457; Hatch v. Frazer, 138 Mich. 184, 101 N.W. 228; Harrison v. McCabe, 10 Kan. App. 194, 63 P. 277; State ex rel. Culbertson Ferry Co. v. District Court, etc., 49 Mont. 595, 144 P. 159; State v. Still, 178 Ala. 442, 59 So. 628; People ex rel. Mark v. Walker, 286 Ill. 541, 122 N.E. 92; People ex rel. Dodson v. Kohlsaat, 168 Ill. 37, 48 N.E. 81; Re Buder, 271 U.S. 461, 70 L.Ed. 1036, 46 Sup. Ct. 557; State ex rel. Gold v. Secrest, 33 Minn. 381, 23 N.W. 545. (6) The affidavit for appeal presents only a prima facie claim of the appellant who makes it, and for whose benefit the affidavit is made, so far as the existence of the facts therein stated is concerned. The statute requires three separate and distinct facts to be stated: (a) that the appeal is not made for vexation; (b) that it is not made for delay, and (c) that the appellant is aggrieved by the judgment of the court from which the appeal is sought. Sec. 1186, R.S. 1939. (a) Even if the appeal be granted by order of the trial court, then the question of whether or not the appeal is vexatious is open for determination by the appellate court after reviewing the record then placed before it, and the appellate court may assess statutory penalty if the appeal is determined to be vexatious. Sec. 1230, R.S. 1939; Boillot v. Income Guar. Co., 124 S.W.2d 608; Phillips v. Phillips, 107 Mo. 361; Wittenberg v. Fisher, 183 Mo. App. 347. (b) The fact as to whether or not the appeal is merely for delay is not conclusive under the affidavit, where the trial court orders the appeal to be granted; notwithstanding the affidavit and the order granting the appeal, the appellate court may determine whether or not the appeal is taken for delay, as may be disclosed by the record. If the appellate court finds that the appeal has been taken for the purpose of delay, it may order statutory penalty against the appellant for vexatious appeal. (c) The appellant may state as a fact that he is aggrieved by the judgment sought to be appealed from, and the trial court in granting the appeal establishes as a prima facie fact that the appellant is aggrieved; however, the truth of such statement is for the appellate court to determine upon the record; the appellate court is not precluded by the affidavit from finding as a fact that the appellant is not aggrieved by the judgment. Love v. White, 154 S.W.2d 759; Shock v. Berry, 221 Mo. App. 718; Dixon v. Hunter, 204 Mo. 382, 102 S.W. 970; McClain v. Kansas City Bridge Co., 338 Mo. 7, 88 S.W.2d 1019; State ex rel. People's Ry. Co. v. Talty, 139 Mo. 379, 40 S.W. 942; O'Connell v. Dockery, 102 S.W.2d 748. (d) Where the trial court grants an appeal, the affidavit stating that appellant is aggrieved does not bind the appellate court. The appellate court may dismiss the appeal or reverse the judgment for want of jurisdiction arising on the record. Thorp v. Miller, 137 Mo. 231, 38 S.W. 929; Weil v. Greene County, 69 Mo. 281; State ex rel. Fenn v. McQuillin, 256 Mo. 693; American Constitution Fire Assur. Co. v. O'Malley, 342 Mo. 139, 113 S.W.2d 795; St. Louis v. Senter Comm. Co., 340 Mo. 633, 102 S.W.2d 103. (e) Where an appeal is granted by the trial court, the appellate court cannot reverse the judgment rendered unless it shall find that error was committed by such court against the appellant, and materially affecting the merits of the action. Sec. 1228, R.S. 1939; St. Louis v. Senter Comm. Co., 340 Mo. l.c. 343, 102 S.W.2d l.c. 110; Buck v. St. Louis Union Trust Co., 267 Mo. 644, 188 S.W. 208; Reynolds v. Reynolds, 234 Mo. 144, 136 S.W. 411. (f) Where one has made his affidavit for an appeal, and the appeal has been denied by the trial court, then the statements set out in the affidavit have lost their prima facie character of fact, and thereafter the burden is upon the appellant to prove such statements to be facts, especially his statement that he was aggrieved by the judgment. Such burden rests upon the relator here, and the alternative writ of mandamus must be quashed because he fails to carry such burden. See cases cited under Point (2), supra. (7) Whether the administrator is aggrieved by the judgment dismissing his cross bill with prejudice is a jurisdictional question, and can be raised at any time even by the court itself. Shock v. Berry, 221 Mo. App. 718, 285 S.W. 122; Springfield S.W. Ry. Co. v. Schweitzer, 246 Mo. 122, 151 S.W. 128; State ex rel. People's Ry. Co. v. Talty, 139 Mo. 379, 40 S.W. 942; State ex rel. Fischer v. Vories, 333 Mo. 197, 62 S.W.2d 457; O'Connell v. Dockery, 102 S.W.2d 748. (8) The phrase "aggrieved party" in the appeals statute is not a technical one, and the words must be given their natural meaning, and, when used with reference to legal remedies the words mean "one who is injured in a legal sense." "Aggrieved" as used in the statute giving parties "aggrieved" the right to appeal, refers to a substantial grievance, and denial of some personal or substantial property right, or the erroneous imposition upon a party of a burden or obligation. 2 Words and Phrases (Perm. Ed.), 816; 2 Cyc., p. 633. (a) The law denies the right of a party to appeal where the judgment complained of does not erroneously take from the complaining party a substantial right or title or other benefit in the property in question. Dixon v. Hunter, 204 Mo. 382, 102 S.W. 970; Hopkins v. Cooper, 235 Mo. 461, 138 S.W. 508; Shock v. Berry, 221 Mo. 718, 285 S.W. 122; State ex rel. Fischer v. Vories, 333 Mo. 197, 62 S.W.2d 457; Hall v. Goodnight, 138 Mo. 576. (b) The administrator of Hazlett K. Campbell was not under any law aggrieved by the judgment of June 19, 1941, dismissing his cross bill with prejudice, and has not under any law the right of appeal from such judgment. On the face of the record proper it appears that said administrator was not a proper or necessary party to the suit in equity brought by plaintiff trustees in order to have the title to said trust property determined, because all of the heirs at law of Hazlett K. Campbell and all claimants to said trust property were under the jurisdiction of said court, which, as a court of equity, had full power to determine all matters pertaining to the title to said trust property, to the title of the trustees to said trust estate, and to the title of all those claiming an interest in said trust property, either as heirs at law of Hazlett K. Campbell at the time of his death, or as vested remaindermen under said trust instruments. The administrator had no interest in such litigation, as administrator of Hazlett K. Campbell, deceased; his cross bill brought no claim which was within the jurisdiction of the court in such controversy. The record proper showed that no title in the trust property held under the trust instruments was vested in Hazlett K. Campbell at his death; therefore the administrator of Hazlett's estate could have no interest in the subject matter of the suit which resulted in a judgment dismissing the administrator's cross bill with prejudice. State ex rel. Fischer v. Vories, 333 Mo. 197, 62 S.W.2d 457; Love v. White, 154 S.W.2d 759. An executor or administrator as such is not aggrieved or prejudiced by a decree or judgment as to the rights of the heirs or other beneficiaries of his decedent, and therefore cannot appeal from a judgment adjudicating their interests, or determining their identities. After judgment fixing such rights to take property no right of appeal from such judgment remains in either an administrator or executor and the same rule is applied in the case of trustees and receivers. This rule is established in the following cases: As to right of an administrator to appeal: Love v. White, 154 S.W.2d 759; 2 Am. Jur., p. 960, sec. 183; Roach v. Coffey, 14 P. 840, 73 Cal. 281; King v. Buttolph, 30 F.2d 769; Virden v. Hubbard, 86 P. 113, 37 Colo. 37; Cairns v. Donahey, 109 P. 334, 59 Wn. 130; In re Nelson's Estate, 260 N.W. 205; In re Pedroli's Estate, 193 P. 852, 44 Nev. 258; As to right of executor to appeal; Shock v. Berry, 221 Mo. App. 718, 285 S.W. 122; Docray v. O'Leary, 286 Mass. 589, 190 N.E. 798; O'Connell v. Dockery, 102 S.W.2d 748; In re Estate of Marrey, 65 Cal. 287, 3 P. 896; In re Turk's Will, 226 N.Y.S. 111; Surrat v. Knight, 158 A. 1; Byrd v. Shell, 168 S.E. 692; As to right of receivers to appeal: Bosworth v. Terminal R. Assn., 80 F. 969; Grier v. Union Natl. Life Ins. Co., 217 F. 293; Herrick v. Miller, 123 Ind. 304, 24 N.E. 111; In re Correll, 129 A. 104. As to the right of trustees to appeal: Franz v. Buder, 11 F.2d 854; McMurray v. Chase Natl. Bank of City of New York, 10 F. Supp. 960; Traders' Inv. Co. v. Farber, 187 N.E. 418, 355 Ill. 413; Bryant v. Thompson, 28 N.E. 522; Ratliff v. Patten, 16 S.E. 464, 37 W. Va. 197. (9) The administrator of the estate of Hazlett K. Campbell was in no wise aggrieved, that is, injured, by the Sixteenth and Seventeenth paragraphs of the decree of June 19, 1941, under which his cross bill was dismissed with prejudice, because all persons claiming an interest in the trust property, and all the trust property itself, were then under the sole and exclusive jurisdiction of said court, and all such persons received an adjudication of their rights, some being denied and other claims being sustained. The claims denied by the court vested in such claimants the personal grievance (if any) under the judgment. Those persons alone were aggrieved and had the right to appeal; the administrator could not appeal for them. See cases under Point (8), supra. (10) The administrator had no power under the law to assert a claim in equity, as administrator, to any part of the trust property, against the legal title held by said trustees, or against the equitable title claimed by the heirs at law of Hazlett K. Campbell, he could not become an adversary party against the trustees who he admits hold the legal title to the property in controversy, nor against the heirs of his decedent, in an equity suit to determine the title to the trust property under the guise of a discovery of assets which he alleges were the property of his decedent. Bank of Willow Springs v. Lillibridge, 316 Mo. 968; Lemp Brewing Co. v. Steckman, 180 Mo. App. 320. (11) All possible beneficiaries interested in the Hazlett K. Campbell trust property were parties to the suit in equity in which the administrator filed his cross bill, and none of said beneficiaries have appealed from the judgment and decree of June 19, 1941, which determined the interests of all parties. The administrator cannot appeal from a judgment determining the rights of the heirs as between themselves, nor litigate the claims of one or more of said claimants as against another. Love v. White, 154 S.W.2d 759; Shock v. Berry, 285 S.W. 122, 221 Mo. App. 718; O'Connell v. Dockery, 122 S.W.2d 748; Franz v. Buder, 11 F.2d 854; King v. Buttolph, 30 F.2d 769. (12) "Courts of equity have always claimed and exercised exclusive jurisdiction in cases of trusts and over the conduct of those appointed to execute them. This has never been disputed ground. No other tribunal can so properly direct the manner of executing them. . . . An element of trust then may be said always to confer jurisdiction in equity." 1 Pomeroy's Eq. Jur. (3 Ed.), sec. 151; 10 R.C.L. 349, sec. 99; Sanford v. Van Pelt, 314 Mo. 175, 282 S.W. 1022. (a) Where a court of equity obtains jurisdiction over the subject matter of the suit on any equitable ground, then that court will hold the exclusive jurisdiction over the subject matter of the suit, and will retain that jurisdiction until full and final relief is granted, even though it may be necessary for the court to give legal relief as well as equitable on some phases of the controversy before the court. Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223; Waddle v. Frazier, 245 Mo. 391; Rozier v. Griffith, 31 Mo. 171. (b) The administrator having admitted the jurisdiction of the circuit court in subparagraph (XI) of paragraph 1 of his answer, and having admitted that all allowed claims against the estate were paid, was barred from his right to ask the circuit court to require the plaintiff trustees to deliver any part of the trust property in their hands to him for administration purposes, even though it be admitted that Hazlett at the time of his death was vested with some title or estate in said trust property or in a part thereof. The administrator could not, under such circumstances, take said trust property from the jurisdiction of the circuit court, nor from said trustees, nor from the heirs of deceased, who were asserting their claims as vested remaindermen in said cause. Cases cited under paragraph (a), supra. (c) The acts of the administrator have been hostile and antagonistic to the welfare of the estate and to the heirs of the deceased, and have been clearly wrongful and in violation of the duty of an administrator. Under the admitted facts and under his claims, he did not come into the court of equity under his cross bill with a good conscience or with an intention to render a service that would be beneficial to the heirs of said estate. If he should be successful, the administrator alone would benefit, in that he would receive substantial commissions; and, after his administration ended, in addition to his having delayed the distribution of said property, he would have to pay the distributive interests in the amount remaining to those same identical persons and in the same pro rata shares as were adjudged by the twenty-fifth paragraph of the decree of June 19, 1941. Such action on the part of the administrator is contrary to that good conscience and clean hands which equity requires before it will grant relief. These principles of equity are recognized as universal rules, a clear statement of them being made in the cases cited below: Keystone Driller Co. v. General Excavator Co., 290 U.S. 239, 75 L.Ed. 293; Deweese v. Reinhard, 165 U.S. 386, 41 L.Ed. 757, 17 Sup. Ct. 340; Perry v. Strawbridge, 209 Mo. 621; Re Estate of Wilkins, 211 N.W. 652, 51 A.L.R. 1106; Horton v. Little, 188 Ala. 640, 65 So. 951; Kinner v. Lake Shore M.S. Ry. Co., 69 Ohio St. 339, 69 N.E. 614. (13) It is a general rule of jurisdiction, and especially of equity jurisdiction, that the court which first acquires jurisdiction over the subject matter of the suit will retain that jurisdiction to the exclusion of any and all other courts until full and complete justice is done to all parties interested in that subject matter. State ex rel. Sullivan v. Reynolds, 209 Mo. 161, 107 S.W. 487. Cases under Point (12), par. (a), supra. (14) The admitted facts show the circuit court acquired jurisdiction when the trustees filed their original petition with the clerk of that court on March 28, 1938, at 9 A.M.; that Thomas R. Madden was appointed by the probate court as administrator of the estate of Hazlett K. Campbell, deceased, on August 8, 1938; that said administrator filed his answer and cross bill in said cause in the circuit court on February 3, 1939. The circuit court had theretofore acquired sole, original and exclusive jurisdiction over plaintiff trustees, over the trust property in their hands, and over all beneficiaries or claimants to said trust property. (15) The circuit court, as a court of equity, having acquired sole and exclusive jurisdiction over said trust property and thereby being vested with power to determine the nature, character and extent of the interests of the parties claiming said property, had power to determine whether certain property passed by inheritance, and whether thereby the shares of the distributees became liable to pay an inheritance tax, under the laws of the State of Missouri. Then such court of equity retains power to enforce such inheritance tax lien, if the distributive shares were subject thereto, against the distributive shares. Said court, as a court of equity, also had power to determine that title to said trust property passed under said trust instruments to the heirs of the life beneficiary as vested remaindermen and that they took title to said property as purchasers and not under the statutes of descent, and that, by reason thereof, had power to determine that said property was not subject to taxation. (16) The collateral inheritance tax is not a debt of or a claim against the estate as such. It is a lien against each distributive share subject to the tax, which lien may be enforced by appropriate proceedings without administration. The State Treasurer and the Attorney General are vested with power and authority, under the statutes, to enforce such tax liens. The administrator is not chargeable with the collection of such taxes, unless the property subject to such taxes is in his hands as administrator of the estate of the person from whom said property passed by the law of descent or by the will of such decedent. Bell v. Farmers Traders Bank, 188 Mo. App. 338; In re Estate of Rosing v. The State of Mo., 337 Mo. 544; Sheehan v. First Natl. Bank in St. Louis, 140 S.W.2d 1. (a) The title to the trust property was continuously vested in the trustees under the trust deed of June 12, 1885, and such title remained in such trustees until and on September 6, 1941, the date the alternative writs of mandamus were issued herein. Such title still remains in the trustees. Such property constituted no part of the estate of Hazlett K. Campbell, the life tenant under said trust deed, and the property was not subject to any inheritance or estate taxes. In re Franz's Estate, 344 Mo. 510, 127 S.W.2d 401; In re Woestman's Estate, 253 S.W. 773. (17) While it is true, as a general proposition, that the title to personal property vests in an executor or administrator, yet he is a mere trustee for creditors and for heirs or legatees; and where the property is not required for the payment of debts and is rightfully in the possession of the heirs, who have the equitable title to it, the claim of legal title of an executor or administrator is not sufficient in equity against such equitable and rightful possession. Richardson v. Cole, 160 Mo. 732, 61 S.W. 182; Todd v. James, 157 Mo. App. 416; Johnston v. Johnston, 173 Mo. 91, 73 S.W. 202; McCracken v. McCaslin, 50 Mo. App. 85; Bell v. Farmers Traders Bank, 188 Mo. App. 383; Lewis v. Lyons, 13 Ill. 177. (a) The administrator is, under ordinary circumstances, entitled to the personal property actually owned by the deceased at the time of his death. The law does not require the doing of an useless and unnecessary thing, and this would be the result in this case, if the administrator's position should be sustained. Richardson v. Cole, supra, l.c. 377. (b) "If it would not be a mockery of justice for a court of equity to require the defendants to pay over to plaintiff (administrator here) when there are no debts against the estate to pay, and no legitimate use for it in his capacity as administrator, merely for the purpose of allowing him to obtain it and use it, and then pay it back to them, less his costs and commissions, it is difficult to say what would be." Richardson v. Cole, supra, l.c. 380. (c) The equitable title is always in the distributees: where creditors have all been paid and distribution has been effected by the distributees without administration, a court of equity will not vest the title or possession so acquired by the distributees in an administrator, who is a mere trustee for the heirs and distributees, after the debts have been paid. Bell v. Farmers Traders Bank, 188 Mo. App. 383; Richardson v. Cole, 160 Mo. 372. (d) On the record in this case and the admissions of the administrator contained therein, it appears that no part of the personal property in the hands of the plaintiff trustees and under the jurisdiction of the circuit court as a court of equity was the property of Hazlett Kyle Campbell at the time of her death.
Leahy, Walther Hecker, Cox, Blair, Kooreman Wallach, H.A. Hamilton, Isaac C. Orr, Fordyce, White, Mayne, Williams Hartman, Bryan, Williams, Cave McPheeters, Edwards, Metcalfe Strong, Jones, Hocker, Gladney Grand, Harry Troll, Clarence Neudeck, H. James Sautter, James A. Henderson, G.W. Marsalek, Robert E. Hannegan, Edward J. McCarty and Jesse E. Bishop for all of the Heirs of Hazlett Kyle Campbell, deceased.
(1) Unless relator was an "aggrieved party" the respondent properly denied relator an appeal to this court from the decree of June 19, 1941. Sec. 1186, R.S. 1939; Dixon v. Hunter, 204 Mo. 382, 102 S.W. 970; Hopkins v. Cooper, 235 Mo. 461, 138 S.W. 508; Shock v. Berry, 221 Mo. App. 718, 285 S.W. 122; State ex rel. Fisher v. Vories, 333 Mo. 197, 62 S.W.2d 457; Hall v. Goodnight, 138 Mo. 576. (2) Where there are no creditors, and no legatees, distributees or heirs join with or authorize an administrator to appeal in his representative capacity, he is not an "aggrieved" party and is not entitled to an appeal. Love v. White, 154 S.W.2d 759. (3) The State of Missouri is not a creditor because any "collateral inheritance tax is not a debt or claim" giving it creditor status. R.S. 1939, secs. 570, 591; Bell v. Farmers Traders Bank, 188 Mo. App. 338; In re Estate of Rosing v. The State of Missouri, 337 Mo. 544. (4) The Federal Government is not such a creditor as will give relator any standing to warrant his taking an appeal herein because 26 1065 U.S.C.A. (1934 Ed.), secs. 427a and 427b, fix a lien which the Government can enforce against any property of a decedent, regardless of whether or not any action is taken by an administrator of an estate. 26 U.S.C.A. (1934 Ed.), sec. 427a and sec. 427b. (5) An administrator of a probate estate is not a tax collector. Sheehan v. 1st Natl. Bank, 346 Mo. 227, 140 S.W.2d 1. (6) Even if it were assumed that the State of Missouri and the Federal Government were creditors, it would be the duty of the relator as administrator to represent the "estate as against such creditors" rather than the creditors against the estate, and he should not be permitted to continue this litigation adversely to the interest of the heirs, particularly since by statute both the State and Federal Governments could collect any tax due them out of any property subject to tax without any action of any kind by the administrator. State Bank of Willow Springs v. Lillibridge, 316 Mo. 968, 293 Mo. 116.
Daniel N. Kirby, Harry W. Kroeger and Hord W. Hardin for St. Louis Union Trust Company and Allen C. Orrick, Successor Trustees, amici curiae.
(1) Relator does not represent the Federal and State Governments so as to be aggrieved in their right. Relator cannot represent the Federal and State Governments upon the issue of tax or no tax, because there was no such issue before the court below; he cannot represent them upon the issue of validity or invalidity of the remainder clause, nor upon any other property issue, because they have no interest in such controversy, but only in a controversy relating to a tax such as might ensue consequent upon a final determination of the questions of state property law. Blair v. Commissioner of Internal Revenue, 300 U.S. 5; Helvering v. Rhodes, 117 F.2d 509. As administrator he is not a tax collector. Sheehan v. First National Bank, 346 Mo. 227, 235. As administrator it is his duty to conserve the estate for the beneficiaries thereof. Bank of Willow Springs v. Lillibridge, 316 Mo. 968. (2) Relator was not aggrieved by the decree of the circuit court because it injuriously affected him in respect of his liability for the payment of estate and inheritance taxes. He does not seek an appeal because of any such liability, but in order to create such liability. He has no liability excepting to the extent of the property in his possession. Sec. 578, R.S. 1939; Bryant v. Green, 328 Mo. 1226; Sec. 822 (b) of the Internal Revenue Code, 26 U.S.C.A., sec. 422 (b), (1934 Ed.), 53 Stat. 127; Sec. 930 of the Internal Revenue Code, 53 Stat. 140; R.S., sec. 3467, 31 U.S.C.A., sec. 192; Art. 102 of the Federal Estate Tax Regulations. (3) Relator is not aggrieved by the decree of the circuit court in his capacity as administrator, because under no construction of the trust instruments would he be entitled to administer the trust property. An administrator is an aggrieved party only if he has been injured by the judgment from which an appeal is sought. Love v. White, 154 S.W.2d 759. A concededly valid support trust having existed during the lifetime of Hazlett, the trustees by their suit for instructions conferred upon the circuit court plenary and exclusive jurisdiction over the controversy. American Law Institute's Restatement of the Law of Trusts, sec. 259; Johnston v. Grice, 272 Mo. 423. Relief having been first sought in the circuit court, its jurisdiction was prior and exclusive. State ex rel. Sullivan v. Reynolds, 209 Mo. 161; State ex rel. v. Holtcamp, 266 Mo. 347; 15 C.J. 1134. The controversy being of purely equitable cognizance entailing the construction of trust instruments and the declaration of the validity of a trust, there could have been no probate jurisdiction over the controversy. Orr v. St. Louis Union Trust Co., 391 Mo. 383; Johnston v. Grice, 272 Mo. 423; Butler v. Lawson, 72 Mo. 227; Dietrich v. Jones, 227 Mo. App. 365; Lemp Brewing Co. v. Steckman, 180 Mo. App. 320. There being no debts, administration is not mandatory, even if the remainder clause in the deed of 1885 be declared invalid, because all of the distributees concur in dispensing with such administration. Richardson v. Cole, 160 Mo. 372; Bank of Willow Springs v. Lillibridge, 316 Mo. 968; Adamack v. Herman, 33 S.W.2d 135; State ex rel. Cowden v. Knight, 92 S.W.2d 610; State ex rel. v. Dixon, 213 Mo. 66. The circuit court, having taken jurisdiction of the property, may administer it until it reaches the hands of the persons ultimately entitled thereto. Real Estate Savings Institute v. Collonious, 63 Mo. 290; Hurst Co. v. Trust Co. of St. Louis County, 291 Mo. 54; Waugh v. Williams, 342 Mo. 903; 14 Am. Jur., p. 434, sec. 243.
Roy McKittrick, Attorney General, and Russell C. Stone, Assistant Attorney General, for State Treasurer as amicus curiae.
(1) The relator is an aggrieved party, therefore, the alternative writ of mandamus should be made final and absolute. (a) The administrator is the conduit, through whom the State operates in the collection of its inheritance and estate taxes. Secs. 38, 57, 575, 578, 579, R.S. 1939; Art. 24, Chap. 74, R.S. 1939; School District of Kansas City v. Smith, 342 Mo. 21, 111 S.W.2d 167; Love v. White, 154 S.W.2d 759; In re: Rosing's Estate, 337 Mo. 544, 85 S.W.2d 495; National Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N.E. 973.
In this proceeding, relator seeks to compel the respondent judge to grant three appeals, one from the final judgment and decree of June 19, 1941, and two from supplementary orders made after and in aid of said final judgment and decree in the case of St. Louis Union Trust Company and Allen C. Orrick, as successor trustees, etc., v. Clarke et al., No. 23,694-C, referred to in the companion cases. For the general facts in relation to said cause, see the statement thereof, under heading "General Facts," found in the opinion in the companion causes numbered 37,871 and 37,872. [State ex rel. Yale University v. Sartorius, 349 Mo. 1039, 163 S.W.2d 981.]
Pursuant to a motion of plaintiff-trustees, the relator herein was ordered made a party defendant in said cause and required to answer the trustees' petition by setting forth any claim of right he might have, as administrator, to the property in question. In obedience to said order, relator, as such defendant, filed an answer [988] and cross bill wherein he set up alternative claims, under one of which he would be entitled to all of the personal property held by the plaintiff-trustees, and under the other, one-half thereof. Without undertaking to set out the details, it may be said that, in substance, these claims, as in the Yale University case, were based upon contentions with respect to the effect of the deed of settlement of 1877 and the subsequent division in 1885 of the trust property into three equal parts (instead of four, Virginia, the mother, having died in the interim), and involve the validity of the provisions of the deed of 1885 limiting the remainder interests in the trust property after the death of Hazlett to his heirs; so that, as the administrator contends, either one-half or all the property (depending on which theory the court might adopt), upon the death of Hazlett, became the property of his estate and subject to distribution under the laws of descent and distribution, and not as vested remainder interests as found by the decree. The judgment and decree denied relator's claim, and dismissed his cross bill with prejudice, following which he took appropriate steps to appeal, culminating in the filing of a statutory affidavit therefor, which was denied.
A great many propositions are urged in the 184-page brief of respondent, as well as in those of amici curiae. The case turns on the question of whether the administrator is a party aggrieved, within the meaning of Section 1184, R.S. '39 [Mo. R.S.A., sec. 1184] so as to be entitled to an appeal, and this may be determined without developing all of the many questions tendered by the briefs.
We are of the opinion that the denial of the administrator's claim of right to either half or all of the personal property in the possession of the trustees undoubtedly makes him an aggrieved party under the doctrine of the Yale University case, unless it can be said that the circumstances presently to be noticed alter the situation. Of these briefly: No money or property has come into the possession of the administrator, and it is not contended that the estate consists of assets other than those sought to be recovered from the trustees. It appears that only two demands were presented against the probate estate, both of which were allowed, one for funeral expenses, and the other for additional Federal income taxes for certain years. On the trustees' motion in the circuit court, the respondent ordered said claims paid out of the trust funds in their possession, and this has been done. The time for presenting claims has expired. But it further appears that the relator-administrator has been notified by the United States Internal Revenue Department of the tentative determination of the net value of the Estate of Hazlett in an amount in excess of Two Million Dollars, and the liability of the estate for the payment to the United States of estate taxes in the sum of $582,019.58, subject to reduction in the sum of $107,140.96 if payments in that amount should be made to the State of Missouri on account of estate and inheritance taxes. Presumptively, at least, the same persons found by the decree take, and in the same proportions, either as remaindermen under the trust instruments, or as distributees under the statutes of descent and distribution.
On this state of facts, it is contended, with some degree of plausibility, that the administrator may not array himself against the heirs, and thus seek, on appeal, to establish a tax liability, as a basis for administering the property, which, under the decree as rendered, does not exist. But, as pointed out above, the heirs claim the property, and under the decree take, as remaindermen, and not as distributees under the statutes of descent and distribution. In their status as remaindermen their claims are antagonistic to the estate, at least to the extent of tax liability of the estate, and hence the administrator does not represent them in such claimed status. In this respect the same principle would seem to apply as in those instances where, prior to an order of distribution, property is claimed by one or more heirs or distributees to the exclusion of the estate, in which situation it could hardly be doubted that the administrator would have the right of appeal.
Respondent and the heirs rely upon a line of cases dealing with family settlements, where property is not required for the payment of debts, and the estate is not administered. [Richardson v. Cole, 160 Mo. 372, 61 S.W. 182; Todd, Admr., v. James, 157 Mo. App. 416, 138 S.W. 929; Johnston v. Johnston, 173 Mo. 91, 73 S.W. 202; McCracken v. McCaslin, 50 Mo. App. 85; Bell v. Farmers' Traders' Bank, 188 Mo. App. 383, 174 S.W. 196.] Richardson v. Cole [989] is typical where it was said the court "will not require an heir to pay over money to an administrator when such administrator has no debt to pay, nor any use to make of it connected with the estate, merely that he may retain it for his own benefit, or be paid his costs and commissions." (Italics ours.) These cases apply a well-recognized rule under their particular facts, but we do not regard them as controlling. Bell v. Farmers' Traders' Bank, supra, is stressed. It involved a somewhat analogous question under the former collateral inheritance tax law. The public administrator brought suit against a bank to recover the amount of a deposit made by the deceased, which the bank subsequently paid to the heirs under a family settlement. Recovery was denied, but the court pointed out that it did not have the effect of allowing the distributees to avoid payment of the tax, because it was not a debt, nor a claim, against the estate as such, but attached to the property and interest therein, passing to the individual heirs, and the statute made ample provision for collection thereof by a civil action. There the heirs took under the statutes of descent and distribution — quite a different question from the one here presented; and there the individual interests were liable under that statute, but not so here if the decree stands. Of course, in a contest between the administrator and the taxing authorities as to the liability of the estate for taxes, the administrator would not be aggrieved by a judgment absolving the estate, but again that is not the situation presented in this case. The non-liability for taxes is merely one of the effects flowing from the decree. Whether the effect of a reversal would be to divest the circuit court of jurisdiction to supervise the complete and final distribution of the property is a question which can be determined if and when it arises, and upon which we will not speculate under the state of the pleadings in this case.
But apart from what has been said above, there are considerations of public interest involved. Of the 161 persons found to be heirs, five are residents of this state; all the others are scattered throughout the United States, and several foreign countries. The resident heirs were denied Letters of Administration because, in the opinion of the Probate Court, they were not suitable persons to administer for the reason their official duties would bring them in direct conflict with their personal interests, in that their personal "interests demand a defense of the validity of the trust instruments, while the state's interest in the tax (inheritance and estate) call for a good faith challenge of their validity." Accordingly, relator was appointed, and he was brought into the circuit court under compulsory process, and required to assert his claim. If his claim, as asserted, is valid (and in this proceeding we are not in any wise concerned with its merits), the property now constituting the trust estate in the hands of the trustee is, in reality, the property of Hazlett's Estate, and subject to large Federal and State taxes; but if the decree of the circuit court is not reversed or set aside, it appears that there will be no such tax liabilities. Quite naturally, this large group of collateral, and, for the most part, nonresident heirs, are satisfied and content with the finding of the circuit court, as might be supposed. Indeed, it appears from the records of this court that after relator's appeal was denied, a proceeding on behalf of the heirs was instituted in the Probate Court to remove relator on the ground that his conduct in seeking an appeal was prejudicial to the interests of the heirs. This was denied, and certiorari was sought in this court to review that record, which was likewise denied.
The state was not a party to the proceeding in the suit below, but the administrator, the trustees, and the heirs were, and the decree rendered therein would doubtless conclude the state. We agree with the relator and the brief of the State Treasurer, as amicus curiae, that it is the administrator's duty to preserve and collect the estate for the benefit of all persons interested in it. It is also his duty to collect inheritance and estate taxes. [Sections 575, 579, R.S. '39 (Mo. R.S.A., secs. 575, 579); Bryant v. Green, 328 Mo. 1226, 44 S.W.2d 7.] What was said in Sheehan, Admr. v. First Nat'l. Bank, 346 Mo. 227, 140 S.W.2d 1, to the effect that the administrator is not a tax collector, is to be understood in reference to the point there under consideration, which was the right of the administrator to challenge the constitutional validity of certain statutes. The observation is not to be construed as denying or affecting the duty imposed by the statutes, supra, in reference to the collection of, and liability for, inheritance and estate taxes.
[990] It is manifest that relator's right to appeal is affected with a public interest, which demands that he be heard on the merits of his claim, and certainly in that sense he is a party aggrieved. Our peremptory writ is, therefore, awarded.
As to Count II of the alternative writ: The decree directed the trustees to file a statement of account of their administration of the trust estate within ten days after the rendition of said decree. It further provided for compensation to the trustees for services both prior and subsequent to the death of Hazlett upon a percentage of income and value of assets basis (plus a fixed sum), the amount thereof to be ascertained from the aforesaid statement of account. The relator excepted to the accounting, and sought to appeal from the order overruling his exceptions, which appeal respondent refused to allow. Substantially the same propositions are urged on this count as under Count I on the merits. Having determined that relator has the right of appeal from the decree on the merits, it follows that he is likewise entitled to appeal from the after judgment order overruling his exceptions to the accounting of the trustees.
Count III involves the relator's right to appeal from the order of partial distribution whereby the sum of $540,000.00 was ordered distributed. It can be assumed that had respondent allowed relator's appeal on the merits, he would not have ordered partial distribution. In any event, pending the determination, on appeal, of the validity of his claim (on the merits), the administrator has a right to the preservation of status in quo of the property claimed by him, and to effectuate that right he was entitled to appeal from the order of partial distribution.
From what has been said, it follows that the relator is entitled to the relief sought under Counts II and III. The same conclusion has been reached as to Count I, as hereinabove set forth. Accordingly, the order under each of said three counts will be that the alternative writs, and each of them, be made peremptory. Clark and Hays, JJ., and Ellison, C.J., concur; Douglas, J., concurs in result, Tipton, J., dissents and Gantt, J., absent.