Clark v. Collins

31 Mo. 260 | Mo. | 1860

Ewing, Judge,

delivered the opinion of the court.

The plaintiff Clark, who is administrator of Collins’ estate, presented his claim against the estate for allowance in the county court, and in connection therewith a motion to amend the inventory filed by him as such administrator. There was a judgment for the defendant, from which Clark appealed to the circuit court, where judgment going against him again, he brings the cause here by appeal.

The account filed was for four hundred dollars, which Clark alleges were sent to him from California in 1852 by his son, per Collins ; and the evidence tended to prove that the money was sent as charged, and that Collins promised to deliver it to the plaintiff.

The only question arises upon the instructions refused. The first, relating to the statute of limitations, was properly refused ; the plaintiff was the administrator, and as such it was his duty to make publication of the granting of the letters of administration to him; and if he omitted this, he can not be permitted to profit by his neglect of duty or take advantage of his own wrong.

The remaining instructions are to the effect, that upon the facts in evidence the plaintiff had a right to retain in his hands the money claimed to be due, and to correct the inventory accordingly. Whether an appeal would lie from a decision of the county court in a proceeding to correct or amend an inventory like that instituted in this case, it is unnecessary to determine, for the motion appears not have been acted on or in any way disposed of, and the only question before the court was whether the.account was barred by the statute of limitations. The last instruction therefore was a mere abstraction, not involving any question to be tried.

Judgment affirmed;

the other judges concurring.