74 Mo. 575 | Mo. | 1881
In 1865 the defendants presented an account, and obtained an allowance, against the estate of John Mabary, deceased, for $10,925, in the county court of Hickory county, and, to satisfy the same, the administrator of said estate, Jas. R. Wilson, procured an order for the ■ sale of lands belonging to said estate, and sold them at
There was abundant evidence tending to establish the fraud. The administrator testified to the contrary, but it is impossible to reconcile his testimony with his conduct. The claim was for an amount exceeding the value of the entire estate, and the administrator was urged by heirs of the intestate to spare no expense in contesting it; yet he employed no attorney, introduced no testimony, and even failed to cross-examine a witness introduced for plaintiffs, who now testifies that, if interrogated, he would have testified to facts exonerating the intestate from any participation in the alleged robbery of plaintiffs’ store at Linn Creek. The evidence warranted the verdict of the jury, but if it were more evenly balanced, we would not be inclined to disturb the finding, inasmuch as the jury and the court had the witnesses before them, and were far more competent than this court to determine the degree of credit to which the witnesses respectively were entitled.
One fact is worthy of note: Two of the defendants testified in the cause. The other, McClurg, was neither a witness nor present at the trial. In Eck v. Hatcher, 58 Mo. 239, the fact that Hatcher, who was charged with having purchased land of which Eck had been defrauded, with knowledge of the fraud, failed to appear and testify when summoned as a witness for plaintiff, was regarded as a strong circumstance against him. Henderson v. Henderson, 55 Mo. 534; Cass Co. v. Green, 66 Mo. 498. And although
Motion for rehearing overruled.