132 Mo. App. 466 | Mo. Ct. App. | 1908
This action was brought by plaintiff on a bond of indemnity in which W. W. Irwin was principal and tbe guaranty company is tbe surety and the only party defendant. Tbe judgment in the trial court was for tbe plaintiff.
It appears that W. W. Irwin was tbe sole heir to an estate in Vernon county and that plaintiff, tbe public administrator, was in charge of tbe estate as such administrator. Several months before tbe close of tbe administration Irwin became desirous that plaintiff turn over to him tbe greater part of tbe estate, con
It afterwards turned out, on final settlement of the estate made by plaintiff and approved by the probate court, that there was due the plaintiff the sum of $800 as commissions as administrator. That sum was allowed by the probate court and became a part of the final settlement. In consequence of plaintiff having-turned over to Irwin the notes and securities as above stated, there were no funds remaining in plaintiff’s hands Avith which to pay.such commission. Thereupon plaintiff brought this suit.
The foregoing is a sufficiently accurate and comprehensive statement to bring out the question we have for decision. That is this: Does the bond cover the matter of plaintiff’s commission as administrator? We
But besides this, if anything more were’ needed, it was produced by plaintiff introducing in evidence the judgment on final settlement. As remarked by the learned trial judge in his opinion on the case, this was conclusive between the parties and certainly constituted a claim within the meaning of the law and the bond.
Counsel state that their research has shown authority on the subject to be quite limited, there being but two cases, neither by a full bench, and one said to be opposed to the other. That of Springsteen v. Samson, 32 N. Y. 703, is much in point for the plaintiff. The condition to refund in that case was to pay “any and all lawful debts, dues, demands and claims now due, or to grow due hereafter, from said John Springsteen, and fully and amply indemnify and save harmless said administrator and estate.” The action was for expenses of administration, including a sum allowed by the surrogate for the administrator’s commissions. These were held to be a claim against the estate.
The case cited as taking the opposite view is that of Lloyd v. Rowe, 20 N. J. L. 680. The condition of refunding in that case was that if afterwards there should appear to be wanting money to discharge “any debt or debts, legacy or legacies” which the executor did not have assets to pay, etc. The court held that the words “debt or debts” meant debts due by deceased in his lifetime and that they did not include commissions
Unless a written contract carries its clear meaning on its face, any uncertainty'of meaning may be made clear by a showing of the situation and circumstances surrounding the parties. But if the instrument is free from ambiguity, it must receive the interpretation the wrords of which it is composed demand. And we therefore think the trial court properly determined the case from the bond itself. As its meaning was clear, it did not need extrinsic aid.
Among the defenses urged by defendant was one that plaintiff was not entitled to commission from the fact that he made an agreement with Irwin as heir that •he would act as administrator for a certain sum, less than his lawful commission, which he had already received. Such defense is cut off by an adjudication in the circuit court that such agreement was void. The judgment in that case was afterwards affirmed by this court in an opinion by Broaddus, P.- J., and will be found reported in 123 Mo. App. 508 (In re Irwin.)
In arriving at our conclusion in this case we have not overlooked the several points suggested against such
The judgment is affirmed.