5 Mo. 106 | Mo. | 1838
delivered the opinion of the court.
It ap.pears by the record that one James T. Moss, of Boone county, on or about the 5th of January, 1827, made his last will and testament, and shortly thereafter departed this life. That by said will all his real and personal property was given to his wife, Sarah Moss, during her natural life or widowhood, to be managed by her as-she might think best, for the benefit of his children. The will orders portions to be given to children on their marriage; provides that the executrix, Sarah Moss, shall give no security, and make no settlements; and further provides that in case the widow should marry, then the county court shall appoint administrators. The widow proved the will, and took on herself the execution of the •same. The testator left several children, and considerable-estate, real and personal. That she took the charge -of the family and property, and afterwards made sever- • al contracts for goods, leather shoes, and shoemaking, for •thevexpress use and benefit of the family, and, in every instance, gave her individual note for the payment of the money. That she-did not pay the money. That about the year,1835, she made some settlement with the county court, and thereupon shortly afterwards intermarried with the plaintiff, Maupin, leaving the notes unpaid. That then the county court of Boone county appointed the defendants, Boyd and Bryant, administrators of the
Mr. Todd, of counsel for the plaintiff, insists that this claim, in the hands of Maupin, is nothing more nor less than a claim for money laid out by Maupin for the use and benefit of the estate of the testator;, and in that light, so far as his money has been used to pay a debt rightfully incur-, red by the executrix in pursuance of her trust, and remaining unpaid at the time the trust terminated, he is entitled to have his money refunded. The whole court is clearly of opinion that this view is correct; and that so tar as Maupin can prove he has paid money which eon-stitutes a just charge on the assets of the testator in the hands of the executrix during her executorship, he be entitled to it by an allowance against the present administrators., ■■
The counsel for the administrators, has further objected, that the true test in this case is,, that if the executrix was liable in her individual capacity, then the present administrators are not; and to support this proposition, cites and relies on the ease of Bryant v. McClintock, decided by this court—1 vol. Mo. R. 598. In that case the question was, whether or not Bryant et al., being commissioners for county buildings, were individually liable? McClintook had, at the request of Bryant et done the work, and to settle the matter, the court quired whether, in the first place, the county was liable? And as in that case the work had been performed, it was
Iam therefore of opinion the judgment of the circuit ■court ought to be reversed; and the other Judges concurring herein, the same is reversed. The cause is re-unanded to that court to proceed herein»