
    THE STATE ex rel. STOTTS, Collector, v. KENRICK et al., Appellants.
    Division Two,
    February 12, 1901.
    Taxes: not collectible after final settlement: • heirs. An executor who has made final settlement and 'been discharged, can not be held liable in his capacity as executor for taxes assessed against the estate. Nor can such taxes be collected from the heirs or distributees, for the reason that they were assessed against the estate of deceased, and suit for personal taxes can be maintained only against the owner of the personal property, and then only when the taxes were assessed against him.
    Appeal from Mississippi Circuit Court. — Hon. Henry Q. Biley, Judge.
    Beversed.
    
      Bussell & Heal for 'appellants.
    (1) The judgment against George Kenriek, as executor, was improper, as he had made final settlement of the estate, distributed the assets and been discharged a year before this suit was filed. (2) If the estate was liable for these taxes, the bill should have been allowed against the estate. Sec. 9246, B. S. 1899. But it was not allowed, nor presented to the executor before he had, upon the order of the court, paid out all the funds of the estate. It is admitted that neither was done. This assessment was against the estate of George Kenriek, only, not against the executor; and suit could not he brought against him personally. Sec. 9246, B. S. 1899. (3) It is admitted' in the agreed facts that this assessment was made against the estate of George Kenriek, only. No lien is claimed against the specific property. The distributees did not take this property burdened with a lien, neither did they owe the debt, and a personal judgment can not properly be rendered against them. A personal judgment for taxes could not be rendered until the act of 1887, and it only authorized judgment against the party assessed. State ex rel. v. Hoyt, 123 Mo. 356. ' (4) The levying and collecting of taxes is a matter solely of statutory creation, and no means can be resorted to to coerce their payment except such methods as are pointed out by the statute. State ex rel. v. Snyder, 139 Mo. 549.
    
      Boone & Lee and U. O. O’Bryan for respondent.
   BURGESS, J.

This suit is prosecuted by the plaintiff as collector' of the revenue of Mississippi county, against George Kenriek, who had been executor of the estate of his father, George Kenriek, deceased, and Albert Kenriek, George Kenriek, William Kenriek, Emma Wilson and Annie Bur-rough, the heirs at law of said George Kenriek, deceased, for back taxes 'alleged to be due by the Kenriek estate.

The petition alleges that in 1894 George Kenriek died, leaving a large estate in the county of Mississippi. That he executed a will which was duly probated, in which he appointed his son George Kenriek, Jr., his executor, who duly qualified as such, and that $4,400, being the personal assets of the estate, were received by him. That the taxes assessed against said executor for the year 1896, amounted to the sum of $70.30, which were past due and unpaid.

The petition further 'alleges that in September, 1896, the said executor made final settlement of said estate, and distribated all of the assets in his hands as executor in equal parts to the legal heirs of said deceased. It then asks for personal judgment against the defendants.

George Kenrick, for separate answer, admitted that he had been the duly qualified executor of George Kenrick, deceased, and on June 1, 1895, had in possession the assets of said estate, but that he afterwards gave due notice of his intention to make final settlement, and at i the September term, 1896, made final settlement, and was ordered and required by the probate court to distribute to the heirs and legatees all the assets of said estate, and that he did pay same out and now has no assets of the estate in his hands. That the said claim was never presented to defendant nor to the probate court for allowance.

Albert Kenrick, William Kenrick, Emma Wilson, Annie Burrough and Erank E. Burrough, answered by way of general denial.

The ease was submitted on the following agreed statement of facts:

“It is agreed by the parties that George Kenrick, as executor, had in his possession at the days charged in the petition, viz., June 1, 1895, to September 1, 1896, the amount-of personal property assessed belonging to the estate of George W. Kenrick, deceased; that the defendants are heirs and distributees of the estate of the said George W. Kenrick; that the assessment and levy of the taxes and all other steps in relation thereto were regular, and that plaintiff, Stotts, is the collector. That George Kenrick was executor of the will of George W. Kenrick, and made final settlement about September 1, 1896, after due and legal notice had been given, and distributed all the assets belonging to the estate to the defendants in equal parts, as ordered by the probate court; that the taxes were not paid; that the amount claimed is the correct amount, and regular in all respects, assessed against the estate of George W. Eenrick, only. That the collector never presented the claim for allowance against the estate; that no demand was made for the taxes claimed before final settlement, and that the tax books came into the hands of the collector after the final settlement and distribution, and demand was made before suit brought and soon after the books came into the hands of the collector.”

The court gave judgment for $74.50 against all the defendants, and they appeal.

As the agreed statement of facts shows that the taxes sued for were assessed against the estate of George W. Kenrick, deceased, only, that the executor after giving due notice made his final settlement of the estate, and was discharged, we are unable to conceive upon what theory he can be held liable in his capacity as executor for the taxes due by the estate. After his discharge as executor he had nothing further whatever to do with the estate, his authority in that respect having ceased. He could no more be sued as executor of the estate than he could maintain an action as such in his capacity as executor.

Nor can the suit be maintained against the defendants as heirs of the estate against which the taxes were assessed, for the reason that it is only when taxes are assessed against the owner of personal property that a suit therefor may be maintained against him, and in this case the taxes were assessed against the estate of George Kenrick. Prior to the act of April 5, 1887, now section 9246, Eevised Statutes 1899, there was no authority in this State for obtaining a personal judgment .'against a person for taxes assessed against him on account of his personal property, and even in order that this may be done, the assessment of the taxes against hint is a prerequisite. [Section 9246, supra.]

The judgment is reversed.

Sherwood, P. J., and Qanit, J., concur.  