74 Mo. App. 182 | Mo. Ct. App. | 1898
Lead Opinion
— This suit was commenced August 8, 1896, on the bond of William Stuart, administrator of the estate of Rachel Stuart, deceased. Relator sued as the sole heir of Rachel Stuart. He assigned as a breach of the administrator’s bond, that he (the administrator) had received the sum of $1,000 of moneys belonging to the estate which he had failed to inventory, and which he had wrongfully converted to his own use. The answer was first a general denial. Plea of payment of all that was due to relator and the taking of his final receipt therefor; plea of a final settlement by the administrator made September 2, 1896, and his final discharge, and other pleas not necessary to notice here. There was a trial, resulting in a verdict and judgment for relator, from which defendants duly appealed to this court.
There was evidence tending to show that Stuart failed to inventory and account for all the moneys of the estate which came into his hands as administrator,
He read in evidence, without objection, the following agreement and receipt of relator:
“Mexico, Mo., July 26th, 1893.
“In consideration of William Stuart advancing to me my interest in the estate of Rachel Stuart, deceased, and this day as administrator of the estate of said Rachel Stuart, deceased, advancing and paying me my said interest, $750, in said estate, I hereby obligate myself not to question or require said William Stuart to pay to said estate any money or claim that I may think he owes said estate, or take any proceedings in court, or otherwise, claiming William Stuart owes said estate anything, but accept this $750 in full of my interest. C. C. Caed well.7 7
“Received of William Stuart, administrator of the estate of Rachel Stuart, deceased, $750 in full payment and satisfaction of my share and interest in the estate of said Rachel Stuart, deceased, as a child and heir of said deceased. C. C. Cabdwell.77
It is not shown whether or not the administrator gave four weeks notice of his intention to make final settlement September 2, 1896, as required .by section 231 of the Revised Statutes of 1889. In the absence, however, of a showing to the contrary, we will presume that the notice was given, as without it the probate court would not have been authorized to make the final settlement and discharge the administrator. State ex rel. v. Gray, 106 Mo. 527. To have given the requisite notice, its publication was made before the beginning of this suit. Since its publication was a step, and a necessary one, to confer authority on the
The filing of the petition in the circuit court after publication of the notice of final settlement, did not have the effect to hold in abeyance the settlement until the termination of the suit, and the probate court was authorized to proceed with the settlement, notwithstanding the pendency of the suit on the bond. But the settlement is only conclusive of what is embraced within it, and is not an adjudication of moneys or other assets of the estate which were never inventoried or otherwise brought into the administration by the administrator, and to which the attention of the probate court was not called. State ex rel. v. Gray, supra. The receipt given by the relator and the contract executed by him at the same time, shows a settlement between him and the administrator of his claim as heir of Rachel.Stuart. He was full grown, thirty-two years of age, and competent to make the settlement and give the receipt. No evidence whatever was offered to impeach the receipt; its execution is not denied, nor any facts tending to show that he did not execute it with full knowledge of all the alleged misconduct of the administrator, of which he now complains. It is an acquittance of the alleged misconduct of the administrator and a bar to a recovery under the facts and pleadings in the present record. Judgment reversed.
Rehearing
ON MOTION FOR REHEARING.
— The final settlement of Stuart as administrator of the estate of Rachel Stuart is of no material importance in this case, since the item sued
To entitle Cardwell to overcome this prima facie defense, proof should have been introduced impeaching the receipt or a judgment of a court of equity setting it aside. Neither was done on the trial, or attempted to be done. Judge Biggs is of the opinion that the plaintiff; must first set aside the compromise or settlement receipt of $750 in a court of equity before he can recover in this action, and cites Jones v. Higgins, decided by this court at the October, 1897, term of this court, and Hancock v. Blackwell, 41 S. W. Rep. 205, in support of this view. To prevent what might turn out to be a failure of justice, we reverse the cause for retrial.
