State ex rel. Steers v. Taylor

72 Mo. 656 | Mo. | 1880

Sherwood, C. J.

I. It is unnecessai’y to say more concerning the correctness of the ruling of the court in the refusal of the declaration of law respecting the sewing machine, than this : We are all agreed that section 33. 1 Wagner’s Statutes, page 88, confers upon the widow, as her absolute property, the articles therein enumerated, whether claiming as dowress, or as in the present instance. We discover no sound reason why a sewing machine may not well be included in the expression “ other implements of iudustry,” since such machines are, nowadays, in far more common use than the wheels and looms of an earlier period. In this view of the subject, it is not worth while to make inquiry as to whether the machine was the .separate property of Mrs. Carmack or not.

II. The majority of my associates are of opinion that the law of the case was correctly declared in the first and third declarations given at the instance of relator; that there was sufficient evidence whereon to base the finding in behalf of defendant, and that, therefore, the judgment should stand affirmed. I do not concur in the opinion as to the sufficiency of the evidence, not having been able to discover any evidence in the record which should accomplish the exoneration of the defendant, so far as concerns the note due by M. G. Ward and Burr Eeagan.

Defendant qualified as administrator of Carmack’s estate, October 8th, 1872, and his letters were revoked in 1876. Between those periods, I regard the evidence ample that a portion, at least, if not all the sum of $600, the aggregate amount of those notes, could have been collected from Eeagan; and if any portion was thus collectible, the defendant was clearly answerable to that extent. On the 27th day of January, 1874, Feagan sold his home farm to his son for $6,900 — there being 276 acres in the farm; this fixes the value at $25 per acre, and corresponds with the deed of that date, made by the father to son. Prigm'ore, a witness on the part of the defendant, testifies that the land of the home farm sold at $25 per acre, thus corroborating the statement of the son as to the price he paid. Captain Ferguson also testified that the home farm was worth some $7,000 or $8,000. This differs from the son’s estimate by only $1,000, his estimate being $8,000 or $9,000. Taking, however, the price at which the home farm actually sold, we have $6,900 as an established basis of valuation; from this must be deducted the amount of the $3,000 incumbrance, leaving $3,900 to meet the demands of creditors. But it is urged that Feagan was entitled to his homestead in the home farm; grant this, aud we still have left $3,900 — $1,500, leaving $2,400 wherewith to pay debts; and there were no judgments against Feagan. This estimate of Feagan’s assets takes no account of his personal property, over 100 head of hogs, even after the cholera had swept away large numbers previously owned by him, and saying nothing.of a, “ bunch ” of cattle. I find no evidence in the record sufficient to combat and overthrow the above testimony. Evidence of the general reputation of Foagan’s insolvency certainly should not be held sufficient in the circumstances of this case for that purpose. Such evidence of reputation is but a' sorry makeshift at best, for something more reliable, and ought not to be admitted to countervail or be regarded as conflicting with positive testimony of the sort above mentioned. And I do not regard the excuse of defendant a valid one for not suing Feagan. Pie says he did not sue him because it would “ make costs against the estate.” But he did sue Ward, a joint maker of the same notes, and surely the costs would have been but trifling to have included Feagan in the same suit. For these reasons I do not think that defendant fulfilled that measure of diligence which the law required at his hands as administrator. 1 R. S. 1879, § 240; Williams v. Petticrew, 62 Mo. 460. As the majority of my associates are, however, of the contrary opinion, the judgment will be affirmed.

Hough, J., concurs with me.