94 Mo. 66 | Mo. | 1887
This cause has once before been before this court, and is reported in 83 Mo. 374, when an opinion was rendered affirming the judgment of the court of appeals (12 Mo. App. 190), reversing the judgment of the' circuit court, and remanding the cause for -retrial. On the second trial, plaintiff obtained judgment for the sum of $15,178.29, from which the defendant has appealed.
The record now before us, while it varies somewhat from the record when the cause was here before, shows that the trial was proceeded with, generally, in conformity with the theory indicated in the opinion of the court of appeals. It is, however, insisted that-in one important particular there is a material difference. It is-this: On the former trial, the following receipt was. read in evidence:
“St. Louis, Mo., March 7, 1876.
“ Received of Thomas Ryan, the sum of twelve hundred and forty-two dollars and ninety-eight cents-($1,242.98), same to be applied on any judgment which.
.“(Signed) ■ Amanda E. Christy.
“Administratrix of the estate of James Christy, deceased.”
On said trial, it was shown that this receipt was given in payment of the private debt of Mrs. Christy contracted for groceries; and it was also shown that she was entitled to one-fifth interest in the Christy estate. On this state of the evidence, the trial court refused to .allow defendant a credit or setoJf for the amount of the receipt, and in passing on the propriety of this action of the court, it is said, in the.opinion heretofore alluded to, that the “ circuit court properly refused to credit the defendant for the receipt which the administratrix had executed to Ryan for groceries delivered by him to her, on her private account. She sues in a representative capacity; and though it is admitted she has an interest in the estate, it was not shown that the estate was solvent. Ryan knew that, in delivering groceries to Mrs. Christy, he was not making payments to Christy’s administratrix as required by law.” 12 Mo. App. 204.
The record in the second trial, the one now before us, shows on this subject not only all that the record of the first trial shows, but it shows, in addition thereto, that it was .admitted by plaintifl: “that the estate of James Christy was solvent, that all the debts of the estate had been paid, and that the share of Amanda Christy in said estate amounts to more than twenty-five hundred dollars.” While it is clear that an administrator cannot, to the detriment of creditors, distributees, or legatees, discharge a debt due the estate by a cancellation of his individual liability to such debtor of the estate, it does not, therefore, necessarily follow, that under the facts above presented, defendant is not
The only effect of allowing the credit, so far as the estate is concerned, would be to diminish her distributive share as heir or devisee by the amount of the credit allowed. This defence might have been more specifically pleaded as an equitable setoff, but the evidence in regard to it having been received without objection, and being thus before the court with the implied admission that the pleadings were broad enough to allow its reception, we cannot see any sufficient reason why such judgment should not be passed or given upon the facts as the right of the matter required. 1 Pom. Eq. Jur., p. 160, sec. 175; Barnes v. McMillen, 78 Mo. 271. By the allowance of this credit as an equitable setoff, and subjecting Mrs. Christy’s interest as legatee, distributee, or devisee of the estate to administration, to the extent of the credit allowed, no wrong is done either to the estate or Mrs. Christy, inasmuch as she would thereby only be required to do, what in effect she agreed to do by her receipt.
In other respects than the one noted, the cause was tried on the theory indicated in the opinion when the cause was here before. That interest was properly chargeable on the judgment is settled by section2725, Revised Statutes, 1879, and that the interest was properly computed, is settled by the rule stated in Riney v. Hill, 14 Mo. 501.
Judgment reversed and cause remanded.
