42 Mo. App. 32 | Mo. Ct. App. | 1890
This case had its origin in the probate court of Saline county, from whence it was removed by appeal to the circuit court of that county, where defendants had judgment from which plaintiff has appealed. The facts out of which this (Controversy arose are substantially as follows : Samuel McClelland, the father, who died in 1886, and the plaintiff, the son, had for several years been engaged as partners in farming and stock-raising in Saline county. The plaintiff administered on the individual • estate of his father. There was,no copartnership administration. The partnership estate was administered through the individual estate. In his inventory the plaintiff listed to his father’s estate one-half of the partnership property. His appraisement was one-half of the partnership property. His bills of sale were an accounting for a one-half interest of the partnership property, with what personal
The plaintiff and the deceased being joint makers of the Noble notes — nothing appearing to the contrary, the debts they evidenced must be presumed to have been created for the equal benefit of both debtors. Myers v. Myers, 98 Mo. 262. While there is some slight evidence that the plaintiff was but the surety of the deceased on these notes, the overwhelming preponderance of it is that he was a joint maker thereof. His own numerous explicit and unexplained admissions withdraw this question from within the pale of doubt.
The presumption of the law that this debt was ere - ated for the equal benefit of the deceased and himself is not met and overcome by any fact appearing in the evidence in the record. The business relations of the plaintiff and deceased, coupled with his own plain admissions, are convincing proof to our mind that both in morals and in law he was jointly and equally bound
As to the refusal of the trial coiirt to permit the plaintiff to testify it seems to us that he was clearly within the statutory interdict. E. S., sec. 4010.
Nor do we perceive any error in the action of the court in its refusal to permit the plaintiff .to testify, especially as to the partnership books, or the entries therein, since their relevancy to the issue on trial is not made to appear.
The plaintiff’s further contention is that “if, as the administrator of his father’s estate, he misappropriated the funds to pay the Noble allowance, then he was guilty of a devastavit, for which he could not be reached in this proceeding.” The defendants are not creditors proceeding under sections 282-285, Revised Statutes, as in Ridgeway v. Kerfoot, 22 Mo. App. 661; nor are they devisees resisting an order for the sale of real estate of the testator, as in Merritt v. Merritt, 62 Mo. 150; but they are heirs opposing the final settlement of the administrator, on the ground that he has procured a credit for a greater amount than he was entitled to on account of the. Noble allowance, and hence these authorities are not relevant. The court had the right, upon the final settlement being made, to examine the prior accounts and settlements, and .rectify all errors or mistakes that appeared therein. In re Davis, Ex'r, 62 Mo. 450; Sheetz v. Kirtley, 62 Mo. 417; Smith v. Priest, 81 Mo. 561; Julian v. Wrightsman, 73 Mo. 569. And the action of the court was within. the confines of its authority as outlined in the authorities just cited.
This was not a case where the plaintiff was entitled, under the constitution, to a trial by jury, and, if he was, he, by his course, waived it. Merrill v. St. Louis, 83 Mo. 244.
It follows, from these considerations, that the judgment of the circuit court will be affirmed.