62 Mo. 460 | Mo. | 1876
delivered the opinion of the court.
Dr. David Petticrew died in 1847, leaving a will, by which he devised and bequeathed to his only child, William D. Petticrew, his entire estate. John P. Williams was appointed and qualified as executor of said will, and qualified also as testamentary guardian of the person and curator of the estate of said W. D. Petticrew. On the 12th day of September, 1860, W. D. Petticrew became of age. On the 13th or 14th day of the same month, Williams made a final settlement of his accounts as executor, guardian and curator. On the day after the settlement W. D. Petticrew made a will, giving therein a large portion of his estate to his guardian, Williams, and to Williams’children.
In November, 1860, Petticrew died, and in January, 1861, Williams was appointed administrator of his estate with the will annexed. In April, 1863, proceedings were instituted by the heirs at law of Petticrew to contest the validity of his will, and said proceedings were twice reviewed by this court, without any final determination of the cause (44 Mo., 465 and 50 Mo., 206.) In November, 1872, said proceedings being-still pending, a compromise was effected between the heirs at law, and the claimants under the will, whereby they agreed to make an equal division between them of the property of the estate, and the further contest of the will was abandoned. Under the arrangement, it is stated, the real property has been divided. ' One of the stipulations of the compromise was as
On the 5th day of August, 1863, Williams, as administra- • tor, filed an exhibit of the estate of William D. Petticrew, showing the aggregate amount of notes, judgments and cash on hand to be $28,361.54. Accompanying the statement was a list of notes returned as insolvent in his settlement
After the compromise was entered into, Williams filed an exhibit and statement as and for a final settlement of the estate of W. D. Petticrew, which showed a balance on hand to December, 1872, of $16,544.13, behaving claimed credit for a number of notes as worthless, and uucollectable, with which he stood charged in his previous settlements.
On the 27th day of August, 1873, this final settlement, together with the objections thereto filed by the heirs at law of W. D. Petticrew, were submitted to the Judge of the probate court of Chariton county, who took the case under advisement, and on the 14th day of October, 1873, he rendered judgment charging the administrator with the sum of $56,175.54, and ordered, distribution thereof.
From this judgment the administrator appealed to the circuit court, where on the 27th day of November, 1873, upon atrial denovo, the administrator was charged with the sum of $19,918.92, and judgment was entered accordingly, and distribution was ordered according to the respective rights of the parties, as settled and determined by the agreement of compromise. From that judgment the heirs have appealed to this court.
In November, 1861, all the records and papers in the' county clerk’s office of Chariton county, including the settlements of John P. Williams, as executor of David Petticrew, and as guardian and curator of W. D. Petticrew, were destroyed by fire. These settlements, therefore, could not be introduced in evidence to show what money, notes, accounts, and other property constituted the estate of Wm. D. Petticrew at the time those settlements were made. Whether any annual settlements were made by Williams, prior to
In a proceeding to rescind or set aside the agreement of compromise, such an argument might, in connection with other circumstances, have some weight ; but it is utterly without force on an appeal from the final settlement. <
In making his final settlement after the compromise, the administrator had precisely the same rights he would have had if no such agreement had been made; and in view of the allusion by counsel to certain circumstances, which they claim affected the validity of the settlements made in 1860, soon after W. D. Pettierew attained his majority, it may be proper to remark, that neither the probate nor the circuit court had any concern with these settlements in adjusting the final settlement now under review, further than to ascertain, as far as was pertinent, what those settlements were. The present proceeding does not involve the legality or good faith of any allowances then made. Such settlements must be seasonably and directly assailed, in order to avoid their effect as judgments importing absolute verity.
This case was tried in the circuit court, on exceptions filed in the. probate court, and our inquiries must be confined to the matters there decided. The administrator, Williams, must be held to bear precisely the same relation to the property which came to his hands as administrator of William D. Pettierew, which he would sustain, if another, than himself, had been executor of David Pettierew, and guardian of William D. Pettierew, and made the final settlements in 1860. His duty as to the collection of the notes and accounts, *
Objections were made to a number of vouchers in the probate and circuit courts which have been abandoned here. The examination of the manuscript record of two hundred pages, now before us, has been no easy task. It is not very orderly in its arrangement and we have received very slight assistance from the briefs of counsel, for want of proper references to those portions of the record where the matters relied upon are tobe found.
The following credits allowed to the administrator by the circuit court, against the objections of appellants, are still objected to.
In the settlement made in 1868, a note to Thos. Lowry, dated Nov. 8th, 1860, for $735, due ten months after date, bearing interest at.ten per cent, signed Wm. D. Petticrew, per John P. Williams.
A bond to B. F. Wood, dated Nov. 28th, 1860, for $600, due one day after date with interest at ten per cent., signed W. D. Pettierew, by John P. Williams, agent.
A note from Mrs. Lyford for $200, dated September 22, 1860, payable January, 1862, to William D. Pettierew.
Expenses of a trip to Virginia to look after the interest of Pettierew in some estate there, $175.
Account of J. B. Hyde & Co., $115,40.
In the settlement made in 1869, an allowance of $100 for services in looking after the lands of the estate.
In the final settlement, credit for the note of James A. Clark for $269.32, due May 23, 1856, bearing ten per cent.; and a note of John W. and James S. Gilliam, for $5,684.81, due July, 26th, .1860, with ten per cent, interest.
Objections were also made to an allowance for taxes paid after the final settlement was filed, for the years 1872 and 3. These taxes were a lien on the estate before any division under the compromise, and we can see no objection to the allowance.
An attempt was made to show the value of the slaves inventoried by the administrator and emancipated while in his possession, with a view of charging him with the amount. The circuit court very properly refused to hear any testimony on the subject.
The notes to Wood and Lowry were for money, borrowed by Williams under a general authority by power of .attorney from ¥m. D. Petticrew, to defray the expenses of a trip to the south, advised by the physicians of Petticrew to be taken for the benefit of bis health, and during which trip he. died. An itemized account of the expenses of that trip should have been required of the administrator together with an account of the balanee in his hands, otherwise these credits should not have been allowed.
The expenses attending the trip to Yirginia to look after the interests of the estate constituted a proper credit to the administrator. It seems to have been undertaken by the advice of counsel and in good faith. The fact, that the administrator was himself interested as legatee, does not detract from the merit of the claim. ' Other persons were likewise interested in the estate under the wilL
We see no objection to the credit allowed for the note of Mrs. Lyford. This note was taken by Petticrew himself after the statement in 1860. She was insolvent at the time and continued so until her death, and the note was probated-against her estate, hut nothing was ever realized.
We cannot sky from the testimony before us, whether the allowance for looking after the lands of the estate was proper 'or not. In the absence of sufficient testimony, the exception must be sustained. The sum allowed for the redemption 'of lauds in Livingston county, in excess of the original taxes, should not have been credited to the administrator. It was through His neglect that it became necessary to pay the sum, and he should be required to bear the loss himself.
The fact that the notes of James A. Clark and John M, and Jas. S. Gilliam were returned by the administrator as part of the assets of the estate in all his settlements from 1861 to his final settlement, without any mention of the insolvency of the makers, is not conclusive evidence, that they could have been collected by him by the exercise of due diligence. By the provisions of our administration law, neither inventories nor appraisements are conclusive for or against an administrator^ nor are annual settlements. Besides the timé, fixed by the statute for obtaining credit for insolvent notes, is at the final settlement. And the.appellants could not complain, even in a proceeding where they might be properly heard on that subject, of having been deceived solely by the annual settlements of the administrator into making the compromise they did, as they were bound to take notice of the law and the rights of the administrator thereunder. The question,.therefore, is one of fact, as to whether it was possible for the administrator by the exercise of due diligence to have collected these notes at any time after he entered upon the administration of W. D. Petticrew’s estate in January, 1861. For any failure or default in that regard, prior to that time, he is not accountable in the present proceeding.
In regard to the Clark note, the testimony is conclusive, that from the time this note came to the hands of Williams, as administrator, in 1861, Clark was and continued to be insolvent. We have no doubt about the propriety of allowing the administrator credit for this note.
On the note for $12,521.00, given by Williams to W.D. Pettierew on the final settlement had with him September, 13th, 1860, the circuit court only charged him with ten per cent, simple interest. When Williams entered upon this administration of Petticrew’s estate in January, 1861, the debt represented by this note became assets in his hands. It appears from the record, that he did not report the proceeds of this note to the court as required by the statute, but on the contrary mingled this money with his own and used it for his own benefit in his own affairs, and that he neither did nor could render any separate account thereof. Under such circumstances we think the probate court did right in charging him with compound interest, and the circuit court erred in charging him with simple interest only.
On the notes in his hands bearing ten per cent, interest the administrator should be charged with ten per cent. On claims bearing 6 per cent, he should be charged the same rate. On money in his hands legally accounted for, he should be charged such interest as he actually received when invested under the orders of the court; and when such orders,’if any, were de-, parted from, then with such interest as he might have received if they had been complied with.
On money in his hands not reported according to law, but used by himself, he should be charged with ten per cent, interest, computed with annual rests. As to the notes which we have indicated were, in our opinion, property returned as insolvent, he should be credited with the principal thereof, and the same rate of interest with which he was charged on said notes up to his final settlement. The rule laid down in Gamble vs. Gibson (59 Mo., 585) can be applied to the transaction in gold.
The judgment of the circuit court will be reversed, and the cause remanded. Judges Napton, Vories and Sherwood concur; Judge Wagner absent.