133 Mo. 463 | Mo. | 1896
This case originated in the probate court of the city of St. Louis. From an order of that court overruling exceptions filed therein by Catharine Reilly as executrix of Robert Reilly, deceased, to the final settlement of Joseph "Wolfort as surviving partner administering the partnership estate of Reilly & Wolfort, and approving said settlement, the executrix appealed to the circuit court of said city where the ruling was again adverse to her, and she appealed to this court. The estate was quite large, amounting to nearly $170,000.
From the end of the first year both probate and circuit courts charged the surviving partner with inter
The evidence shows that the surviving partner kept but one bank account and mingled his own moneys with those of the partnership estate, using it as his own as his demands seemed to require, but does not show that he received any interest on account of it.
By section 224, Revised Statutes, 1889, it is provided that if executors and administrators ‘ ‘lend the money of the deceased, or use it for their own private purposes, they shall pay interest thereon to the estate.” But one meaning can be given to this statute. It is not ambiguous, indefinite or uncertain, and leaves no room for construction. By it, under the circumstances of this case, it was not discretionary with the court as to whether the surviving partner should be charged with interest on moneys in his hands belonging to the estate and used by him in his business during that year, from the time he received it until his annual settlement, for, by the plain letter of the statute, it is provided that he shall pay interest on moneys thus used.
If he had desired to avoid the payment of interest he should not have used the money received by him belonging to the partnership estate, and it makes no difference that he may at all times have had ample funds on hands to meet all demands of creditors or legatees. This may be true.and still he would be liable for interest. His mere ability to pay at any time
The authorities cited by counsel in behalf of the surviving partner on this question are not in conflict with what has been said. In no one of them had the administrator used the funds in his own private business.
Whether an administrator shall be charged with interest on money in his hands belonging to the estate in his charge is in many instances to be determined by the circumstances of each case, and rests to some extent in the discretion of the court; for instance, where the administrator or trustee ought to have employed the funds and did not, but where he uses the money for his own private purposes, the law says he shall pay interest, and it is not a matter of discretion with the court. The surviving partner should be charged with interest at the rate of six per cent per annum from the different times he received the moneys which were not needed to pay the liabilities of the firm up to the time of his first settlement.
It is also insisted that error was committed in allowing the surviving partner credit for an amount paid D. Chambers, bookkeeper, attorney’s fee charged in third and final settlement, E. H. Molleneott in third and final settlement, and for expenditures claimed by the administrator for the last two years’ management of the estate. The chief objections urged against those allowances are that the services for which charges are made were unnecessary, and were oeca
As has been said, the estate was a large one, amounting to nearly $175,000, with a vast number of accounts standing out, and bills unpaid, and it would seem under such circumstances that a bookkeeper was not only necessary, but almost indispensable. The same may be said with respect of the attorney’s fees, and the services of E. H. Mollencott in looking after the assessment of the property belonging to the firm, and the payment of taxes against the same. These, as well as other credits claimed for special services rendered during the last two years’ administration, were in a great measure for the consideration of the probate and circuit courts, and there is nothing disclosed by the record which would justify us in interfering with their findings in regard thereto.' The objections to these allowances are extremely technical, and seemingly without merit.
On final hearing in the probate court there was found to be due the Eeilly estate the sum of $2,460.40, which was then tendered to Mrs. Eeilly, the executrix, by Wolfort, but she refused to receive it. On the hearing in the circuit court this amount was increased about $116. No interest from the date of the tender to the hearing in "the circuit court was allowed on the amount tendered, and in this it is insisted by the executrix that error was committed.
As to whether or not Wolfort should be charged with interest on the amount thus tendered depends upon his ability to loan the money, or whether he made use of it after Mrs. Eeilly refused to receive it in satisfaction of the judgment. If he made use of it as his own, or could have loaned it and failed to do so, then he should be charged with interest; otherwise, not.
Moreover, had she accepted the tender, which the evidence clearly shows was made in satisfaction of the judgment rendered in the probate court, she could not thereafter have prosecuted her appeal from that judgment. Cassell v. Fagin, 11 Mo. 207. Á party can not receive satisfaction of a judgment in his own favor, and thereafter prosecute his appeal from the same judgment in the hope of obtaining a more satisfactory one. There was no error in allowing Wolfort counsel fees for defending the exceptions to his final settlement in the probate and circuit courts. His management of the estate, considering its amount, property and interests, seems to have been quite successful and free from fraud or advantage to himself, other than the use of the funds of the estate. The judgment is reversed and the cause remanded.