98 Mo. 262 | Mo. | 1889
— William A. and James T. Myers were appointed administrators of the estate of Michael Myers, their father, in 1858. They, as such administrators, made six annual settlements, and in 1865, filed their seventh and final settlement. This final settlement was continued by the county court to the next term. The settlement was duly recorded by the clerk ; and in his docket, and opposite this estate and under the words “how disposed of,” is written by the clerk, “ settled.” The records of the county court, however, do not show any order of the court approving this settlement. James T. Myers, who was the active administrator, died in 1867.
The plaintiffs in error are the children of a deceased daughter of Michael Myers, and at their instance, the probate court of Scotland county ordered William A. Myers, the surviving administrator, to make final settlement. This order was made in 1884, nearly twenty years after the final settlement had been filed, and was supposed to have been duly approved. On March 4, 1884, and in obedience to this order, the surviving administrator, for final settlement, filed a statement, which is the same as that filed in 1865, showing a balance of one dollar due the administrators, and on the sixth of the same month he filed an amended final settlement which shows a balance of $573.26 due the estate. This difference is due to the fact that one item of credit in the former settlement was disallowed, and some reductions made in fees allowed the administrators, thus showing a balance against them, to which eighteen and one-half years’ interest was added. This amended final settlement was approved by the probate court, and the objectors, the plaintiffs in error, appealed to the circuit court, where, upon a trial anew, the judgment was the same as in the probate court. They then sued out a writ of error, from the St. Louis court of appeals, and the cause was transferred to this court.
1. The facts in respect of the first of these alleged errors are these: The administrators, in their first annual settlement, charge themselves with $6,557.29. In this amount they include the aggregate footing of the inventory of a long list of notes and accounts due the estate, amounting to over six thousand dollars. They then take credit for disbursements. The balance is then carried into the next settlement, and so on in the subsequent settlements. By this method of stating the accounts, there appears to have been in their hands, at the first settlement, $4,540.10. The balance diminishes in the subsequent settlements, and in the fifth, there appears in their hands a balance of $2,296.20, and in the sixth, there is in their hands but $511.77; but at. this settlement they were given credit for five or six hundred dollars on account of worthless notes and accounts.
Now, it is plain to be seen, that these balances in the hands of the administrators do not represent money; for in them is included uncollected notes and accounts. Indeed, the balances to the sixth settlement include some five or six hundred dollars of worthless notes, shown to have been worthless on the trial of this case. The administrators charge themselves with interest collected on notes and accounts, to the amount of $1,027, thus again showing that the balances do not represent money. Whilst it cannot be told, from these settlements, just how much money was on hand from
Again it is the duty of the probate court, at each settlement to exercise an equitable control in requiring administrators to account for interest on moneys of the estate loaned or used by them. This is the statute (Gr. S. 1865, p. 493, sec. 55) and the very statement of the rule shows that it is not an iron one. The power is to be exercised equitably and in view of all the circumstances. It does not appear that these administrators loaned or used any of the moneys of the estate, and under the circumstances disclosed, they should not be charged with interest on the balances appearing on the face of the settlements. The case is wholly unlike those cited in the brief of appellants.
2. In the inventory filed by the administrators, this entry appears, “Note on A. S. Myers & Bro., not come to hand, supposed to be among the papers of Michael Myers’ estate, due February 4, 1858.”
It seems figures representing the amount of the-note and the accrued interest, namely three hundred and thirty-seven dollars and sixty-four dollars, were set down in the inventory, but they were erased. On the other hand, it also appears that these figures were erased before the inventory was completed, and the amounts are not carried into the footing. On this evidence, and proof of the solvency of A. S. Myers, the objectors rest their case. W. A. Myers, the surviving administrator, says his brother James did nearly all of the business in settling the estate, that when he collected any of the notes he turned the money over to James. He says: “My attention was first called to that erasure yesterday. I have no knowledge concerning the matter whatever.”
It is to be remembered that James Myers, the administrator who was most familiar with the affairs of
3. We now pass to the contention that the court should have excluded, on the final settlement, several credits allowed to the administrators in the anhual settlements. The principle of law contended for is that these annual settlements made and approved by the court do not constitute even prima faeie evidence in favor of the administrator of the correctness of the accounts thus allowed in the annual settlements. The law is well settled in this state that these annual settlements of executors, administrators and guardians are not conclusive. They are open and subject to review and correction at the final settlement. Picot v. O'Fallon, 35 Mo. 29 ; West v. West, 75 Mo. 204.
Section 10, of chapter 124, of the General Statutes, is in these words: “Upon every settlement, the executor or administrator shall show that every claim for which disbursements have been made has been allowed by the court, according to law, or shall produce such proof as would enable the claimant to recover in a suit at law.” It seems unreasonable that the administrator should produce such proof on annual settlement, get the judgment of the court that the disbursement is one for which he is entitled to a credit, and then this all go for nothing on the final settlement. The more reasonable conclusion is, that when the probate court allows a disbursement in an annual settlement, the allowance thus made is prima-facie evidence of the
4. As to the third assigned error, the facts disclosed are these: Michael Myers and Alfred A. Myers, by the name of “M. & A. Myers,” made a note to Collins for $46.77. They executed two other notes, each signing his name in full, one for one thousand dollars payable to Gale, and the other for $734.70, payable to Davis. These notes are all dated in 1856, were allowed against the estate of Michael Myers in 1858, and were paid in full by the administrators. The small one was paid in 1859, and payments were made on the others in 1859, 1860, 1861 and 1862, and the balance due on them seems to have been paid in 1864. There can be no doubt but the administrators were entitled to •credit for the amounts paid on these notes; and the only question is whether they should be charged for the one-half of the amounts so paid because of a failure to enforce contribution from Alfred S. Myers.
The further evidence shows that Michael Myers, the deceased, and Alfred S. Myers, were partners in a mercantile business in the years 1855, 1856 and 1857; that Alfred was solvent from 1857 to 1863, and that he was dead at the time of this contest. But it does not appear that those notes were made for partnership purposes, though it may be presumed that the small one was made for such purpose, since it is made in a firm name. This presumption cannot prevail as to the two
5. The defendant in error contends, and indeed the only points made in the brief filed in his behalf are, that the merits of the case cannot be considered here, because there is nothing to show that the bill of exceptions was made a part of the record; and because the documentary evidence, such as inventories, settlements and the like are not preserved by the bill of exceptions. The first of these points is based upon a misconception of the fact and the law. The amended transcript shows that the motion for new trial was overruled in November, 1884, and by agreement of parties, time was given plaintiffs in error to file bill of exceptions in vacation on or before February 1, 1885. Had the bill of exceptions, signed by the judge, been filed with the clerk in vacation on or before the last-named date, it would have thereby become a part of the record ; but it was in point of fact filed in open court in January, 1885, and made a part of the record by the order allowing it to be filed.
As to the other point: The bill of exceptions as filed did not contain copies of the inventories, settlements, vouchers and other documents read in evidence, nor of the motion for a new trial; but they were
The judgment is reversed and the cause remanded.