15 Mo. 356 | Mo. | 1852
delivered the opinion of the court.
Thomas W. Nelson was security on a bond executed by the intestate, J. W. Russell, for a thousand dollars payable to himself, Jordan O’Bryan and Win. H. Trigg, trustees of Margaret Russell. J. H. Russell, having departed this life on the 19th September, 1843, Wm. H. Trigg and Thos. Russell became his administrators. Trigg was the active administrator and took upon himself the collection of the debts due the estate. On the 8th August 1845, Trigg, as one of the payees of the bond due by Nelson as security for J. W. Russell, presented the same to the court of probate for allowance. The demand was allowed and placed in the 6th class. The entry of the classification of the demand was made upon the minutes of the court, but not transferred to the record at large. There was a memorandum on the bond in the handwriting of the
At the January term, 1848, of the probate court of Cooper county, Jordan O’Bryan and Thomas W. Nelson, the payees of the said bond, moved to change the classification of the demand that had been previously made, and to place it in the 5th class of claims against the estate of Jas. Russell. It appeared in evidence, on this motion, that Trigg, one of the payees of the bond and also the administrator of the obligor, Russell, had had the possession of the bond from the date of its execution, and also that he was the active administrator in paying and collecting the debts of the estate. It was admitted that there was no money in the hands of the administrators when the motion was made, all the funds of the estate having been exhausted in the satisfaction of demands in the 6th and 6th classes.
The probate court sustained the motion and placed the bond in the 5th class of demands against the estate. Upon an appeal, this order was reversed by the circuit court, upon which this writ of error was sued out.
We do not see on what grounds the application of the plaintiff in error can be based. Nelson, the surety who seeks this relief, being also one of the payees of the bond, might have had it exhibited within time to be entitled to a place in the 5th class. Disappointment in his reliance on Trigg, who united in himself the character of payee of the bond and administrator of the obligor, can give himno pretence to affect the rights of others. For if the classification of this demand is changed, and thereby a deficiency uf assets should occur to satisfy the demands of the 6th class, the court would force Trigg to commit a devastavit, for a creditor cannot be forced to refundí Lowthian vs. Hassell, 4 Brown. Chan. Rep. 124. That Trigg was the active'administrator can make no difference. The classification, if erroneous, should have been appealed from when made. The omission of its entrance on the record at large, confers no right on the plaintiffs in error to come in at this time and claim a change. If it were necessary, in order to entitle a party to an appeal, that the classification should have been of record, an application might have been made to amend.
The doctrine of retainer, as it existed at common law in favor of executors and administrators, does not obtain here. The provision for exhibiting demands against an executor or administrator, when he him
The .statute does not require that a classification of a demand should be entered on the record at large. An endorsement of its class on the claim itself and an entry on the abstract book is all that is required.
The other judges concurring, the judgment below will be affirmed.
