State ex rel. Crider v. Wagers, 47 Mo. App. 431

47 Mo. App. 431 | Mo. Ct. App. | 1892

Smith, P. J.

This was an action brought by Arimilda Crider with whom was joined as co-relator her husband, Frank Crider, against defendant Wagers and the other defendants as sureties on his bond, as executor of the last will of Simpson M. Wagers, deceased. The breach alleged that there was due the plaintiff, Arimilda Crider, who was a daughter of the deceased, the sum of §183.33, which sum was in the hands of defendant Wagers as executor of said will, and which had been ordered by the probate court of DeKalb county to be paid over by said executor to the said Arimilda Crider, which he had refused to do.

The defendant answered as follows: “They admit the execution and delivery of the bond, as alleged and set forth in said petition; that there was due from defendant Wagers, as executor, to Arimilda Crider, the sum of §183.33, as alleged in said petition, and that said sum was ordered by the probate court of DeKalb county, Missouri, to be paid to said Arimilda Crider, as plaintiff alleges. And, further answering, the defendants state that immediately thereafter said Wagers wrote to said Arimilda Crider to send him a receipt for the sum then owing by him, as executor, to her ; that immediately after said Wagers received said answer from said Arimilda Crider, and received such receipt, he bought a bill of exchange from one bank upon another bank, payable to the order of said Arimilda Crider, and mailed the same to .her at her address at that time, and she duly received the same; that she afterwards deposited said draft or bill in bank for collection, and before the same reached the drawer of said draft or bill the bank drawing the said draft or bill suspended and failed, and said draft or bill was protested for non-payment. Defendants further say that said Wagers bought said draft of the bank drawing the same ; that said bank at the time of the purchase of said draft and at all times heretofore was a reputable bank in the community where situated, and at all times prior to its actual suspension and failure had the confidence of the people in the community as a solvent bank; and that said Wagers had not, prior to the actual suspension and failure of said bank, any knowledge, information or suspicion of its failing or unsound condition. Defendants further state that said Wagers on the-day of November, 1888, filed his final settlement as said executor; the same was duly approved, and he was finally discharged by said probate court. Wherefore, defendants pray to be dismissed with their costs in this behalf expended.”

A reply in the nature of a general denial of the new matter set up in the answer was filed, and the cause tried at the April term, 1890, before the court, without the intervention of a jury. At the trial, befoi’e proceeding with the introduction of any evidence, the plaintiff moved for judgment on the pleadings, which motion was overruled. The defendants then introduced evidence tending to sustain the allegations of the answer. The evidence is quite voluminous,- covering more than fifty pages of closely printed matter, but, in the view of the case which we shall presently express, it will be found unnecessary to set forth even an epitome of it in order to get a clear understanding of the questions presented. At the conclusion of the evidence, the relators requested the court to declare the law to be that under pleadings and evidence the judgment should be for the relators. This was refused by the court. Judgment was then rendered for defendants. The relators bring the case here by appeal.

I. A preliminary question is presented which must be here determined. The relators, in their abstract of the record, state that leave was given them at the April term, 1890, of the court, the term at which the case was tried, to file a bill of exceptions at the following November term. The defendants in their points and authorities state that no such leave was given relators as is shown in their abstract, and for this reason this court cannot review the evidence or rulings of the trial court. In this the defendants are in error. By reference to section 2253, Revised Statutes, under which the appeal in this case was brought here, it will be seen that it' is there provided, that, “in case the opposite party shall not concur in said abstract of the record, he shall specify his objections thereto in writing and file the same with the clerk and serve the adverse party with' a copy thereof ; and thereupon the clerk of the appellate court shall forthwith issue and send an official order commanding the clerk of the trial court to send such appellate court a certified transcript of that part of the record in dispute, etc. If the course indicated in this statute had been taken by defendants, then we would have been able to decide whether the relator’s abstract is true or false in respect to the disputed particulars; but, as it is, we must accept the same as correct, notwithstanding the challenge of the defendants.

II. We think it is quite likely that the relators, upon the undisputed facts of this case, could in equity successfully impeach the final settlement of the executor on the ground of fraud; but, while this maybe so, we do not think it necessarily follows that this action at law on the obligations of the executorial bond may not be maintained, and especially so in view of the facts conceded by the answ7er. Mrs. Crider was a distributee of the estate. It was made the duty of the executor under the order of the probate court to pay her the sum of money sued for. This was one of the duties enjoined upon the executor by law, and the express obligations of the bond. The allegation is that the amount sued for at a certain date was due Mrs. Crider by the defendant executor. This is admitted by him in his answer; but, as an excuse for non-payment thereof, he alleges that he sent her a draft therefor drawn by an insolvent bank in her favor, which, though never paid, he insists was tantamount to payment, and had the effect to discharge his obligation to pay her. The rule, it is true, is quite well settled that executors and administrators are only held responsible for want of due care in protecting property of the estate from theft or loss by unavoidable accident or anything of the kind, and the care and skill which they are required to use is that which a prudent man exercises in the direction of his own affairs. Booker v. Armstrong, 93 Mo. 49; State ex rel. v. Meagher, 44 Mo. 357; Foster v. Davis, 46 Mo. 268; Fudge v. Durn, 51 Mo. 264. So these officers are only responsible for loss by the insolvency of the debtor to an estate, when they have failed to exercise the same care that a prudent man would exercise in the conduct of his own affairs. Williamson Ex’rs, 1910; Booker v. Armstrong, supra. They are not absolutely insurers of the safety of the funds réceived by them as is the case with public officers, who receive public funds into their hands virtióte officii.

But these rules, though invoked by the defendant, are believed to have no application to the facts of this case. Mrs. Crider was a non-resident, of the state, and the executor was not bound to hunt her up and send her the money ordered- to be paid to her. He could have obtained an order of the court to loan out the same (R. .S., sec. 252), which would have been sufficient excuse for withholding payment. But he elected to send her the money by draft in which he was unsuccessful-. If he had owed Mrs. Crider the amount of money due her, for the purchase money of property sold to him by her or for money loaned, would the sending of a draft, in the absence of a request to so send it, or an express agreement to receive the draft as payment, discharge the debt?

It is now the well settled law of this state that the taking of a bill of exchange or note is not payment, unless the creditor expressly agrees to take it as payment and run the risk of its being paid. Selby v. McCullough, 26 Mo. App. 66; Appleton v. Kennan, 19 Mo. 641; Leabo v. Goode, 67 Mo. 126; Riggs v. Goodrich, 74 Mo. 112; Citizens' Bank v. Carson, 32 Mo. 191; Howard v. Jones, 33 Mo. 583. It was admitted that the non-payment of the draft did not result from any negligence on her part in the presentation of the draft for payment to thb bank on which it was drawn. There was no element of negligence in the transaction chargeable to her. She -was in no respect remiss in that diligence which the law exacted of her in respect to the draft. It is thus seen, that if the amount which is owing Mrs. Crider has been due her from the executor in his individual, instead of in his executorial, capacity, the transaction under review would not have been a payment.

Is the rule different between these parties because Wagers was an executor? Does that circumstance change the rule of liability ? We do not perceive that the rules which we have stated in respect to the responsibility of executors and administrators are in the least encroached upon by holding the executor in this case still liable to Mrs. Crider for the money he undertook to pay her by draft. The case must stand just as if the executor had never sent the draft at all. There has been no payment, nor áre any facts shown in the pleadings or evidence which exonerate the executor. The trial court should have given the declaration of law requested by the relators.

The judgment of the circuit court is reversed, and cause remanded with directions to that court to enter judgment for the relators on the pleadings for $183.33, with interest thereon from November 15, 1887, at the rate of six per cent, per annum.

All concur.