State ex rel. Coste v. Fulton, 35 Mo. 323

State ex rel. Coste v. Fulton

35 Mo. 323 | Mo. | 1864

Bates, Judge,

delivered the opinion of the court.

- Octavia Lesseur, widow of Alexander Lesseur, became ad-ministratrix of his estate, and the defendants were the secu*325rities in her bond as such administratrix ; she subsequently married Beneke, by means of which marriage her letters of administration were revoked, and an administrator de bonis non was appointed; she made in the probate court a settlement of her administration, and a balance being found in her hands, she was ordered to pay it to her successor in the administration. More than seven years afterward, the plaintiffs, who are the children and heirs-at-law of Alexander Lesseur, bring this suit by their curator, and allege that the administratrix (Octavia Lesseur) had never paid the balance in her hands to any one authorized to receive it, and that there were no debts of the estate remaining unpaid, and that they were entitled to the fund.

There was judgment in the court below for the defendants, and the plaintiffs appealed. The case was decided in favor of the defendants upon this instruction: “The marriage of Octavia Lesseur to Mr. Beneke w.as a revocation of the letters of administration granted to said Lesseur; and if more than seven years elapsed after the said marriage and before the suit was commenced, the plaintiff cannot recover.”

We think it unnecessary to examine into the proper application of the statute of limitations to this case, for the reason that the judgment is for the right party, independently of the lapse of time. The administratrix, whose securities the defendants are, having made a settlement final as to her administration, and having been ordered by the court to pay the balance in her hands to her successor, the administrator de bonis non, she and her securities were liable to that successor, and not to the plaintiffs or other persons interested in the estate. The remedy of the plaintiffs is against the administrator de bonis non.

Judgment affirmed.

Judges Bay and Dryden concur.