18 Mo. App. 164 | Mo. Ct. App. | 1885
delivered the opinion of the court.
This controversy arises in this way: The defendant, M. L. Gray, administrator of the estate of ConstantineMcGilway, deceased, made his final settlement in the probate court, showing a balance of $1,597.77 in his hands for distribution. The probate court ordered this balance to be distributed to the widow and children of the deceased. Thereupon these plaintiffs, Joseph A. Bauer and John Mullery, filed a motion to have the order-of distribution set aside, and for an order upon the defendant to repay to them an amount which had been paid by them in satisfaction of a certain judgment against them as sureties of the decedent upon his bond, given as surviving partner administering upon the assets of the late firm of Clement & McGilway. The probate court overruled this motion; Bauer and Mullery appealed to the circuit court; upon a hearing de novo in. that court without a jury, judgment was rendered for the defendant, and the plaintiffs, Bauer and Mullery, have-appealed to this court.
The facts of the controversy set out in their full detail would make a long story, and down to a certain point, they are told in the opinion of this court delivered by Judge Bakewell in the case of Gray, Administrator, v. Clement, Executor, 12 Mo. App. 579. The substance of it is this: Clement and McGilway were partners in St. Louis. Clement died in October, 1875, and McGilway administered upon the partnership effects, giving bond as such administrator, with Bauer and Mullery, the plaintiffs in the present action, as sureties. McGilway died in July, 1876, and Gray, the present defendant, succeeded him as administrator of his estate. In .January, 1877, Mary H. Clement, widow of the deceased Clement, gave, bond as administratix de bonis non-
Subsequently Mrs. Clement made her final settlement in the probate court as administratrix de honis non of the partnership estate, in which she claimed that the estate of McGilway was indebted to the partnership estateún the sum of $211.61. Gray, as administrator of McGilway’s estate, filed exceptions .to this final settlement, claiming that sundry credits in favor of the administratrix should be stricken out. From the order made by the probate court upon such exceptions, an appeal was taken to the circuit court, in which court a judgment was rendered in favor of Gray, as administrator
In order to solve the controversy before us, it is scarcely necessary to do more than consider the status of the opposing parties in respect of the fund in controversy. In what character did Gray receive this fund from the partnership estate of Clement and McGilway? It is not suggested that he received it in the character of agent or trustee for Bauer and Mullery, or in any other character than that of administrator of the estate of McGilway. It was in that character that he claimed it, and the record shows that it was in that character that it was awarded to him, and so does the opinion of this court confirming that award. Gray v. Clement, 12 Mo. App. 579. He then received and held this fund as administrator of McGilway’s estate ; he was bound to charge himself with it as' such ; this, as the record shows, he did ; he was bound to report it to the court as assets in his final settlement ;■ he was bound to distribute it in accordance with an order of .the probate court made upon such final settlement, or upon an order of some higher court on appeal; and if, disregarding these obligations, he had paid it over to Bauer and Mullery under the idea that he had received it as a trust fund belonging to them, he would have been answerable on his bond. ■
Such being his relation to the fund, let us inquire what was the relation of Bauer and Mullery to it. When
But this subrogation does not take place by the mere operation of law ; it cau only be had as the result of a proceeding in equity, upon a bill showing a right to the relief and bringing into court the necessary parties. The right of the surety to be thus subrogated accrues concurrently with his right of action at law against the
Now, the statute (Rev. Stat., sect. 185) made it imperative on them to exhibit such demand within two years after letters granted (advertisement having been duly made as prescribed by the statute), or suffer the same to be forever barred. They did not do this. They apparently rested upon the supposition that the estate of McGilway was insolvent, and that no contingency would bring into the hands of its administrator enough money to reimburse them. They waited until, by the diligence of the administrator, such money came, and then the two years had elapsed and it was too late to exhibit their
The payment of the $1,213.43 by Bauer and Mullery was made on the 25th of February, 1878. If they had exhibited it as a demand against McGilway’s estate within two years from that date, they would have been in a position to catch the windfall which finally came from the partnership estate. But they waited until the 20th of January, 1883, and then endeavored to reach the same result by moving the probate court to set aside the order of distribution, which it had made upon the final settlement of the defendant as McGilway’s administrator. This they could not do.
Other questions have been presented, but we do not think it necessary to consider them, nor to consider the propriety of the. instructions given and refused ; since it is apparent, for the reasons above stated, that the circuit court, in giving judgment for the defendant rendered the only judgment which could lawfully have been rendered upon the admitted facts of the case.
The judgment is accordingly affirmed.