76 Mo. 459 | Mo. | 1882
This was a proceeding in the probate court of Boone county by the administrator of Cochran, against the administrator of Pierce and his securities on his bond as administrator of said estate of Cochran, under section 68, page 487, General Statutes of 1865, to recover a large sum of money which his successor, as administrator of
There is nothing whatever in the phraseology of either of. those sections which restricts its application to partnership estates. The trouble arises from the act of the revisors in placing all of those sections under a general heading, “ Of Partnership Estates,” a subdivision made by them and not the legislature. It is manifest that section 74, the last of those sections, does not relate exclusively to partnership estates. It provides that: “ This act shall not be so construed as to prohibit any justice or clerk of any county court not having probate jurisdiction, from becoming an executor or administrator, or from being security in any bond required by this chapter.”
In Brown v. Weatherby, 71 Mo. 153, the proceeding was by an administrator against his predecessor and his securities under section 67. It was an individual and not a partnership estate, and the jurisdiction of the probate court was not questioned, and seems to have been taken for granted by the court. We are all of opinion that section 68 authorized this proceeding in the probate court.
That Pierce, as administrator of Cochran’s estate, had converted to his own use assets of the estate to a large amount, prior to his receipt of the purchase money for the land, is beyond controversy. The only question is, whether his sureties on his bond as administrator, are liable to the estate for the amount received by him for the land. Defendants contend that as administrator that money never came into his hands ; that he received it as commissioner, and never transferred it to himself as administrator, nor could he have done so while the case was pending in this court on Mrs. Cochran’s appeal.
There was nothing in the appeal of Mrs. Cochran to prevent Pierce from transferring to himseíf, as administrator, the largest portion of that purchase money. What Mrs. Cochran claimed was a larger amount than was al
If another had been commissioner instead of himself, and had paid the money to Pierce, under the order of the circuit court which was made, there could be no question, we think, that his sureties would be liable. They would not be heard to say, that Pierce was not authorized to receive it as administrator, because the commissioner was not authorized to pay it to him. He would in such case, as administrator, have received money belonging to the estate, as then ascertained by the judgment of the circuit court, and subsequently by this court, and their liability would scarcely admit of a doubt. The simple fact of the receipt of the money as administrator, to all of which, within a few hundred dollars, the estate was entitled, no matter how the Supreme Court might decide the questions involved in the widow’s appeal, would have fixed their liability, whether the administrator charged himself with it or not, in a settlement or otherwise, or even executed a receipt for it to the commissioner.
The record in this cause is so voluminous that we can
Objection is made to the testimony of Judge Hinton, detailing a conversation with Pierce and Jno. W. Harris, severally, in which they seemed to have admitted, in effect, that Pierce held the proceeds of the land sale'as administrator of Cochran’s estate. Certainly, if Pierce had charged himself as administrator with this money, in any settlement in the probate court, or in any private memorandum book, kept by him of his acts and doings as administrator, or had placed it to his credit, as such administrator, in the bank, the evidence that he had done so would have been admissible against his securities. It was only by some act of his, under the circumstances, that the money could have been transferred from the commissioner to the administrator. His statement that he had done so was admissible for the same purpose, not as conclusive but as competent evidence of the fact. If he had formally declared to Judge Hinton, probate judge: “ I henceforth hold that money as administrator of Cochran’s estate,” would it not be admissible to prove that declaration, to show that he had, in obedience to the order of the circuit court, made the transfer? So, of the admission of Jno. W. Harris. He was a party to the bond and to the proceeding on the bond, and ■his admission that Pierce held that money as administrator of Cochran’s estate, was admissible against him, and the court was not asked to declare that it was admissible against him only, but the objection was general to its relevancy.
But aside from this, there was abundant other evidence to prove the fact admitted by Pierce and Harris to Hinton. All concur in affirming the judgment.