54 Mo. 439 | Mo. | 1873
delivered the opinion of tbe court.
This action was brought against the defendant on an executor’s bond.
William Johnson died in Cape Girardeau county in the year 1864, leaving a will in which his wife Sarah L. Johnson, John H. Clark and John H. Wilson were named as his executors. The will was proved and recorded in said county, and on the tenth day of August, 1854, the parties named as executors in the will appeared in the proper Probate court and executed their bond in the usual form as the executors of the estate of the deceased in a penalty of twenty-five thousand dollars, with Thomas Johnson, James Cannon and Alfred Lacy as sureties, procured letters testamentary, and entered upon the discharge of their duties as executors. In 1866 Mrs. Sarah L. Johnson was married to James O. Parmer, who is joined in this suit.
John H. Wilson in the year 1865, removed to the State of Mississippi where he still resides. John Clark died in 1868 and W. II. IT. Williams was appointed his administrator, and is joined as such as a defendant in this suit.
At the trial the suit was dismissed as to Wilson and Tracy who were not served with process. At the May term of the Cape Girardeau Court of Common Pleas for 1871, (that court
This suit was brought on the bond executed as aforesaid, by the executors of the estate of William Johnson, deceased, to recover certain sums of money, which, it was charged had come into the hands of said- executors as the assets of said estate, and which had not been accounted for by them in the payment of the debts of the estate or otherwise, but had been wrongfully converted to their own use.
The petition further charges, that there were debts proved up against said estate in favor of the guardian of the heirs of one McLean,'for over four thousand dollars which remained unpaid, notwithstanding there was money in the hands of the executors applicable to the payment of said debts ; but that the money had been by the executors converted to their own use, and the debts still remained unpaid.
The breaches of the bond were assigned in the petition in the usual form, and damages claimed in the sum of five thousand dollars.
The defendant, Sarah L. Farmer, in her separate answer, admits the execution of the bond sued on, but denies the indebtedness of the estate and claims that she renounced the will and that she has never acted as executrix of the estate of her late husband, and that nothing ever came into her hands as such.
The defendants, James Cannon and Thomas Johnson, deny the execution of the bond and deny that the principals in the bond were the executors of the estate, or that the will was ever probated, or that the principals in the bond ever took upon themselves the administration of the estate. They also deny that the estate was indebted as charged in the petition, and charge that the debts named in the petition as being unpaid were barred by the statute of limitations at and before the time they were proved up and allowed against the estate ; and that the demands as proved were barred by the statute
Replications were filed to all affirmative allegations in the several answers. A trial was had before the court, a jury-having been waived by the parties.
The plaintiff to sustain the issues on its part, read in evidence, the bond executed by the defendants as charged by the petition. This evidence was objected to by the defendants on the ground that it had not been approved by the Probate court, and because there was no administration- under the will. The objections were overruled by the court and the defendants excepted. The plaintiff then offered and read in evidence the letters of administration de bonis non issued to Burroughs, and an order of the Probate court directing the former executors to deliver and pay over to him the assets of the estate in their hands.
The plaintiffs then offered in evidence, two allowances of demand, as they appeared on the records of the Probate court against said estate in favor of the guardian of the heirs of McLean. One of these allowances was made on an account, and another on a note. Plaintiff also offered in evidence said note and account with the certificate of their allowance indorsed thereon, together with credits indorsed on said claims of various payments thereon.
When these allowances were read in evidence the defendants Johnson and Cannon moved the court to non-suit the plaintiff, as to said defendants, on the ground that they were the sureties "on the bond of the other defendants and that it was shown by the said allowances that they were barred by the statute- of limitations at the time they were allowed.
This motion was overruled by the court and the said defendants excepted.
The plaintiff then without objection read in evidence the annual settlement of the executors, Clark and Wilson, made in the Probate court showing the am'ount of assets in their hands, &c.
The plaintiff then read in evidence from the records of the
This evidence was objected to for the reason that it conflicted with other evidence in the case.-
This objection being overruled the defendants excepted. The plaintiff then introduced defendant Williams as a witness, who had at one time been the guardian of the McLean heirs in whose favor the claims against the estate named in ’the petition had been allowed, for the purpose of proving by said witness among other things, the amounts paid by the ex-cutor Clark to him on said claims, and also to prove that other monies of Clark, which had come into his hands while he was such guardian, had been by the direction and consent of Clark applied on other indebtedness of Clark to him in his individual capacity. The defendants objected to this evidence on the ground that Clark, one of the parties was dead, and thatWilliams- the other party to the transaction, was therefore incompetent as a witness to testify in reference to - said transaction, and because Williams was testifying in his own favor. These objections were overruled and the defendants excepted.
The plaintiff then introduced oral evidence tending to' show the amounts which had borne to the hands of the executors to be by them administered and the amount refunded to them by the distributees under the order of the court, &c. It was proved by Mrs. Parmer, that she had renounced the provisions made in her fayor by the will of her husband, and had elected to be endowed under the law, and that she had taken no part in the administration of the estate but had entrusted the whole matter to her co-executors. The other defendants objected to this evidence but their objections were overruled, and they excepted.
No instructions or declarations of law were asked on either side or given by the court, but this case was simply submitted to the court on. the facts and evidence.
The court rendered a judgment in favor of the plaintiff for the amount of the penalty of the bond and authorized an execution for the sum of $3,086.00, with costs.
The defendants filed a motion for a new trial assigning some eight or ten causes, covering all of the exceptions taken on the trial, as well as on the ground of newly discovered testimony since the trial, which last ground was siipported by several affidavits, also filed. This motion being overruled by the court, the defendants again excepted and have brought the case to this court by writ of error. ’
There are no questions of law raised in this case, except the admissibility of the evidence objected to by the defendants at the trial, and as to the proper exercise of the discretion of the court in overruling the defendant’s motion for a new trial on the ground of newly discovered evidence.
The first objection made by the defendants, is that the court permitted the executor’s bond to be read in evidence, when it did not appear that the bond had been approved by the Probate court. It has been frequently held by this court, that' an administrator’s bond was good; though not approv
The next objection made by the defendants necessary to notice, is the objection of the defendants to the introduction in evidence of the entries 'of allowances, made by the Probate court in favor of the guardian of the heirs of McLean, and also to the introduction in evidence of the claims thus allowed with the credits made of the payments thereon.
‘This evidence was objected to by the defendants, or rather the defendants as the record shows, moved a non-suit on the ground that it appeared by the said allowances that more than three years had elapsed after the granting of letters testamentary and before the demands were allowed, and that they were therefore barred by the statute of limitations.
It seems to me the defendants conducted their defense under the notion that the suit had been commenced for the use of the guardian of the McLean heirs, in place of the administrator de bonis non of Johnson’s estate.
Whether these claims were properly proved up, or were properly provable against Johnson’s estate, is a question wholly collateral to the real matters in controversy. in this suit, and could not be inquired into on the trial thereof.
The question in this case is, did monies and assets come into the hands of the executors of the estate of Johnson for which they have not accounted as such executors; but which have been converted to their own use ? It was only necessary for the plaintiff in its petition to refer to any unpaid allowances against said estáte, for the purpose of showing that the estate had not been fully administered, and finally settled, so as to authorize an administrator de boms non to be appointed. When such administrator was appointed it is made the duty of the former executors to pay over to him whatever remains in their hands, whether the estate is in
The defendants objected to the reading of the entries on the records of the Probate court, in evidence, by which it appeared that an auditor had been appointed to inquire into the condition of the estate, and his report to the court and the order of the court requiring the distributees to refund, &c. The ground of the objections was that it conflicted with other evidence in the case. This objection was properly overruledas the objection could only effect the weight to be given to the evidence and not its admissibility.
The next point urged in this court is that the court improperly permitted the defendant Williams, to testify in the case as to what application was made of¡ certain monies received by him from the executor Clark, in his life-time, and that such application had been made by the direction of, and with the consent of Clark. It was insisted that Clark being dead, the witness was not competent to prove a transaction had between him and Clark in his life-time. It was certainly competent for the witness to testify as to the payments made by Clark to him as the guardian of the McLean heirs in extinguishment
There were several other objections made by the defendants in their brief filed in the cause, but by an examination of the record the facts do not appear, upon which the objections seem to be founded.
The remaining questions presented are as to the correctness of the finding and judgment of the court on the facts and evidence, and as to the propriety of the action of the court in, overruling defendant’s motion for a new trial on the ground of newly discovered evidence.
■ It is insisted by the defendants that the court committed error in the calculations and estimates by which the amount found against the defendants was arrived at; but there is nothing in the record from which we can see how or by what rule or calculation the result was obtained. No instructions or declaration of law were asked or given so as to indicate in
We see no cause to interfere with the judgment in this case.
the judgment is affirmed.