106 Mo. 526 | Mo. | 1891
This is an action against the sureties upon the bond of Samuel H. Owens, deceased, who was the administrator of the estate of Charles G. Hickcox, deceased. Defendants’ demurrer to the plaintiff’s petition having been sustained in the circuit court, and judgment rendered thereupon in their favor, the relator brings the case here by writ of error. It is alleged in the jietition in substance, that the relators are husband and wife ; that Charles Gf. Hickcox was indebted to the-relator, Louisa D. Pountain, upon a promissory note-executed by him, bearing ten-per-cent, compound interest ; that said Hickcox died intestate; that on the sixteenth of June, 1879, Samuel H. Owens was appointed administrator of the estate of said deceased, and executed the bond sued on with defendants Gray and Meyer as his sureties; that on the thirtieth of August, 1879, relators’ claim was presented to, and allowed by,, the probate court of Moniteau county for the sum of $867, and placed in the fifth class of demands against said estate ; that the said deceased was also indebted to one Howard on a promissory note bearing interest at the rate of ten per cent, per annum compound ; that on the twenty-ninth of August,- 1879, the said Howard presented his said claim to said probate court, and the same was allowed for the sum of $1,200, and placed in the fifth class of demands against said estáte; that afterwards on the fifteenth day of February, 1888, the said Howard, for value, assigned said demand to the relator, Louisa D. Pountain; that said Owens, administrator, made two payments on each of said demands, and afterwards, on the - day of February, 1882, departed this life, and thereupon James M. Hardy was appointed administrator de bonis non of said Hickcox’s estate, duly qualified, and entered upon the discharge of his duties as such; that the said Hardy made two-payments on each of said demands, and on the fourteenth of February, 1888, made final settlement of the estate of said Hickcox, when the same was found to be
The relators assign as breaches of said bond: First. That said Owens as administrator as aforesaid in his first annual settlement made on the twenty-third of August, 1880, charged himself on account of notes belonging to the heirs of John English, deceased, of whom said Hickcox had been curator, with the sum of $1,695.14, their face value, and took credit on account of said notes turned over to the curator of said heirs in the sum of $2,630.01, thus obtaining a false credit of $934.87, to which said' administrator was not entitled. Second. That the said Owens in his said first annual settlement charged himself on account of assets belonging to the Thorpe heirs with the sum of $3,036.01, and in the same settlement obtained credit by amounts retained by him, the said Owens, as curator of said heirs, in the sum of $1,617.40, and that after the decease of said Owens his executor in the settlement made with the estate of said Hickcox obtained a further credit on the same account to the amount of $1,675, making the amounts of credits thus obtained $3,292.50, and thereby a credit in the two settlements for $256.50 on account of said assets was thus obtained, to which the said Owens and his estate was not entitled.
The third and fourth breaches are that the said Hickcox before and at the time of his death was curator of the estate of Jefferson L. and Valoras Thorpe, minors; that after his death the said Owens became curator of the estate of said minors; that it was ascertained that the said Hickcox was indebted to his said ward, Jefferson, in the sum of $1,108.25 and to his said ward, Valoras, in the sum of $1,138.23, and that said Owens as curator of said minors while he was administrator of said Hickcox procured said amounts to be allowed by the probate court as demands against
It is alleged in the petition that each of the aforesaid credits and allowances was fraudulently procured ; that thereby the estate of the said Hickcox was wasted and mismanaged by the said Owens to the extent of said several credits and payments, and that the relators have been damaged to the amount thereof, for which with interest thereon a right of action hath accrued to them on said bond, and judgment is asked accordingly.
It appears inferentially from the petition that, after the death of the said Owens, his executor, Wood, made settlement of his accounts with the estate of Hickcox ; in fact one of the items sued for grows out of a credit allowed in that settlement. So that the cause of action, which relators claim hath accrued to them upon the bond for the several sums of money stated in the petition, is for credits claimed to have been erroneously allowed in the settlement of the said Owens, administrator, Wood, his executor, and Hardy, administrator de bonis non, with the estate of said Hickcox, by means whereof (the same not having been corrected but the errors carried into the final settlement), the estate has been wasted to the extent of such credits.
It thus appears that notwithstanding the settlement made in the probate court of ¡Moniteau county of this account of Owens as administrator of the estate of Hickcox with said estate, made by said court between Wood, the executor of said Owens, and Hardy, administrator de bonis non of Hickcox, and the final settlement made in the same court by said Hardy, administrator de bonis non of the Hickcox estate, in which the right of these administrators to credit for the items set out in the petition was directly passed upon
I. The precise question raised in this cause has not heretofore been before this court but the principles upon which it must be decided seem to be well settled. Hardy made final settlement of his account as administrator de bonis non of the estate of Hickcox. The settlement made by Wood, executor of Owens, of the account of his testator Owens with the estate of Hickcox, must, for obvious reasons, be presumed to have been made in accordance with the requirements of law. To such a settlement the administrator de bonis non is a party and represents the creditors and others interested in the estate and his settlement is also final of the account of such former administrator with the estate. R. S. 1879, sec. 48 ; Van Bibber v. Julian, 81 Mo. 618; RoBards v. Lamb, 89 Mo. 303 ; 2 Woerner, sec. 536; State ex rel. Collins v. Dulle, 45 Mo. 269 ; State ex rel. Crane v. Heinrichs, 82 Mo. 542. The estate, therefore, was regularly and finally settled in the probate court when this suit was commenced.
II. Final settlements of administrators in the probate court have the force and effect of judgments, and are conclusive as to all matters, the proper subject of account included in such settlements and necessarily involved in the final settlement thereof. Patterson v. Booth, 103 Mo. 402; State to use of Tourville v. Roland,
The administrators in this case have regularly accounted for all the assets that came into their hands, in the manner required by law. The application of those assets to the discharge of the obligations of the decedent as made by them has, on final settlement, been approved by the probate court. The fact that the court in auditing and adjusting the accounts may have erroneously allowed credits to which the administrators were not entitled is not waste or mismanagement by the administrator within the meaning of section 287, supra; but an error of the court in its judgment, which could be corrected by appeal; or, if superinduced by fraud on the part of the administrator, by a direct proceeding in equity to set aside the settlement. This conclusion is plainly deducible from the reading of the section in
