2 Mo. 83 | Mo. | 1829
Lead Opinion
delivered the opinion of the Court.
This was an action of debt commenced in the Circuit Court, against Byrd, as the security in an administration bond. On the trial, an agreement between the defendant and the creditors of the deceased was read in evidence, hy which it appears as follows: <£ that Col. Byrd proposed to go into the Circuit Court and,©pter his appearance without writ, to such suits as the creditors of Chamberlain may institute against him, for waste on the administration bond. All creditors may inslitute suit, and he will agree with the creditors to try one to establish the amount of the waste; and that judgment shall he entered up against him for the waste in favor of each creditor in proportion to the whole amount wasted, and the parties are to permit Col. Byrd to mate use of any equitable defence he may have, &c.55
Several breaches were assigned, and on the plea of nil debet, the waste was established to the amount of $1503 39 3-4 cents. The defendant then proved, that "pre
The only question to be considered is, did the Circuit Court err in rejecting the testimony ? As to the strictlaw of the case, tlitro can be no doubt; the administratrix in building the house, made a gross misapplication of the funds of the estate, and her securities were liable for the waste committed. By the agreement,however, the defendant may well claim a credit for the improved value of the estate which had been applied towards the payment of the debts due the intestate. It will ever be a difficult matter to determine, under sucli ciicumstances, the amount to be allowed; but when the proof can be made, there can be no good reason why it should not avail the defendant; it would be any thing else than equitable, to allow the creditors to (104) receive the improved value of the estate, and then to recover the full amount of the assets which had been wasted, or misapplied toward the improvement.
The Circuit Court erred, therefore, in rejecting the testimony, and the judgment must be reversed, and the cause remanded tor further proceedings, conformably t<* this opinion.
Dissenting Opinion
dissenting.
I dissent from the opinion of the Court, believing that in equity, no allowance would be made to the administratrix for building a house on the land of the intestate. ■On the contrary, that at law and in equity, it is a waste to expend the money of the intestate in this manner; and that the administratrix would lose her money equally as if she had built a house on the land of any living person without his assent.