Taylor v. Hunt

34 Mo. 205 | Mo. | 1863

Dryuen, Judge,

delivered the opinion of the court.

The County Court of Jefferson county allowed and classed a demand in favor of the respondent against the estate of James Hunt, the testator, and afterwards made an order requiring the executor to pay the same. The order to pay not being obeyed, the respondent took.execution against the property of the executor; and it having been returned only partially satisfied, the respondent instituted the present proceedings against the executor and his securities, on his official bond, under the provisions of the 14th and 15th sections of Art. Y. of the administration law of 1855, to recover the balance remaining unpaid. On the trial in the Circuit Court, where the case had been taken by appeal from the County Court, the appellants offered to prove, that, at the time when the order to pay was made, the executor had no money of the estate in hand applicable to the demand in question; but the court refused to admit the testimony, and this is assigned for error.

It is by law made the duty of the County Court to ascertain, at every settlement, the amount of money of the estate that has come to the hands of the executor or administrator, and to order him to pay the same to the creditors. On the trial, then, of the respondent’s motion for the order in this case, the very point in issue was whether the executor had money in hand applicable to the respondent’s demand, and the issue had necessarily to be passed upon by the court and found in the affirmative before the order to pay could be ■ made. The fact, then, as between the respondent and the executor has become res adjudicata, and upon well established principles cannot be again controverted by them in any collateral proceeding.

The executor being precluded by the order to deny the fact on which it was based, his securities are in the same condition, not because they were parties to the record, as was their principal, with the right to appeal or prosecute a writ of error, but because by the stipulations of their bond they bound themselves to the performance of whatever should be required of their principal' by the order or sentence of any court having jurisdiction. The condition of their bond is “ that the said Isaac Hunt, executor of the last will of James Hunt, deceased, shall faithfully execute the last will of said deceased, account for, pay over, and deliver all moneys and property of said estate, and perform all other things touching said administration required by law, or the order of any court having jurisdiction.” To hold the securities, therefore, con-eluded by the order is but holding them to their agreement. The court committed no error in refusing to admit the evidence. (State to use of Griffith v. Holt et al., 28 Mo. 340.)

Let the judgment be affirmed.

The other judges concur.