State ex rel. Adams v. Campbell

10 Mo. 724 | Mo. | 1847

Scott, J.,

delivered the opinion of the Court,

This was an action of debt on an administrator’s bond, instituted at the instance of Nancy Adams, guardian of the infant children of Daniel Adams, and for her and their use. The defendants were the sureties of Thomas Bland, the administrator of D. Adams. There was but one count in the declaration, containing seven breaches of the condition of the bond. The first three breaches alleged in substance, that the administrator Bland had received several sums of money, for which he had failed to account. The remaining breaches allege substantially, that Bland the administrator in this State, took out letters of administration on the estate of Adams, in the State of Kentucky, and as such he had received large sums of money, for which he failed to account. One of these last counts states moreover, that the moneys received by the administrator in Kentucky, are subjuct to distribution among the heirs of * D. Adams, the intestate.

There was a general demurrer to the declaration, which was sustained, and the plaintiff sued out this writ of error.

There being but one count in the declaration, alleging several breaches of the condition of the bond, if any one of these breaches is sufficient, the demurrer must be overruled. The 18th section of the 3rd article of the act concerning practice at law, does not affect this case. By the common law, if a declaration contained several counts, one of which was good, and the others faulty, if a general demurrer was put in to the whole declaration, the demurrer must have been overruled; for the good count being sufficient to sustain the plaintiff’s right to a recovery, it could not be said, that the declaration was insufficient in law. The section above referred to, was introduced to remedy this, by making it operate as though it was put in only to the bad counts, sustaining it as to those which were bad, and overruling it as to the good ones. Here then is but one count in the declaration, and numerous breaches of the condition of the bond assigned in it; now it is evident, that if there was one good breach assigned, that the plaintiff is entitled to recover, if it is sustained by proof. There being but one count in the declaration, the section above referred to, does not apply; that was only intended when there were two or more counts, some of which were bad. It has been formerly suggested by this Court, that in cases like the present, the proper practice was., on the trial to move to exclude all evidence under the faulty breaches.. Williams vs. Madden, 9 Wend., 240.

There is no foundation for the assumption, that this suit should have been brought by an administrator de bonis non, of Daniel Adams. The suit could only have been brought as it was, in the name of the State of Missouri, the bond being made payable to her; and whether it could have been brought for the use of the heirs and distributees, would depend upon the nature of the breach of the condition, assigned in the declaration. The statute gives an action on the bond, “atthe instance of any party injured, for any breach of its conditions.” So the question is not in whose name the suit should be brought, but whether those for whom it is instituted, have shown that they are injured, by any of the breaches set forth in the declaration.

Certainly the interests of all those who are in any way concerned in the estate of deceased persons, require that such estate should be brought to a final settlement, with as little delay as possible. It is obvious, that heirs and distributees may be injured by the delay, neglect, or refusal of administrators to account for moneys received. Whether the estate will be insolvent or not, is not generally ascertained until there is an account. A want of knowledge of the condition of their deceased parent’s estate, may distract the views of his children, and prevent them from adopting that course of life, which its situation may ultimately require. Whether three years have elapsed from the date of the letters, is a matter of utter indifference. Lands may descend; there is a contingent right in the administrator to sell those lands. The existence of this right may seriously affect their sale by the heir. Suits on administration bonds, can only be brought against the securities, within seven years from the death of the principal. If administrators de bonis non and creditors fail to bring suit, must those rights which are postponed to theirs, be sacrificed by their neglect? These considerations are sufficient to show, that heirs and distributees may be injured by the failure of an administrator to account for moneys received by him. The law therefore notices, that heirs and distributees may be injured by the neglect of an administrator to account for money received. This injury accrues as soon as the neglect occured, whether it is within three years or not. The amount of the injury, is a question for the jury, to be determined by the facts in evidence before them. If the heirs and distributees should recover from an administrator, moneys or property, not accounted for, if creditors should afterwards appear, they could by bill in equity compel them to refund.

The breaches in relation to the administration in Kentucky, are insufficient. It has been held, that when there is a primary and ancillary administration, that a court of equity has jurisdiction to decree an account and distribution according to the lex domicilii of the estate of a deceased person, domiciliated abroad, which has been collected under that administration. But whether it will proceed to decree such account and distribution, or direct such assets to be remitted, to be distributed by a foreign tribunal, depends upon the circumstances of the case. Harvey vs. Richards, 1 Mason, 881, This principle has been incorporated into our Code, and'is declaratory of what seenis to have been the law on the subject. Sections '21-2-3-4-5 and 26 of the 6th art. of the act concerning administration. Story’s Conflict, secs. 414, 414 and 415. If the tribunals within the jurisdiction of an ancillary administration, can distribute or remit the assets found there, as circumstances may require, it will follow, that the courts of the primary administration, Cannot interfere with the assets, within the limits of the ancillary administration.

The other Judges concurring, the judgment will be reversed and the •cause remanded.