2 Mo.App. 451 (Mo.App. 1876), Cocker v. Cocker

Citation:2 Mo.App. 451
Opinion Judge:GANTT, P J.
Party Name:CATHERINE H. COCKER, Respondent, v. JOHN COCKER, Appellant.
Attorney:Dryden & Dryden, for respondent, Seymour Voullaire and Sternberg & Morris, for appellant,
Case Date:June 10, 1876
Court:Court of Appeals of Missouri
 
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Page 451

2 Mo.App. 451 (Mo.App. 1876)

CATHERINE H. COCKER, Respondent,

v.

JOHN COCKER, Appellant.

Court of Appeals of Missouri, St. Louis.

June 10, 1876

          1. A and B were co-executors of C. Money came into the hands of A, which he temporarily committed to B, taking his note, by which B promised to pay the amount to A, with interest. Held, that in a suit on the note it was no defense that the money belonged to the estate of C.

         2. If interest be paid within ten years on a note which had been due for more than that period, the bar of the statute of limitations is thereby avoided.

         APPEAL from St. Louis Circuit Court.

          Affirmed.

          Dryden & Dryden, for respondent, cited: Edmons et al. v. Crenshaw, 14 Pet. 166; Lawrence v. Lawrence, 3 Barb. Ch. 71; Abila v. Bennett, 33 Cal. 667; Hope v. Jones, 24 Cal. 92; Daly's Estate, 1 Tuck. Sur. 95.

         Seymour Voullaire and Sternberg & Morris, for appellant, cited: Carr v. Dings, 58 Mo. 400.

         OPINION

         GANTT, P J.

         This action was commenced to the December term, 1871, and, on October 26, 1872, an amended petition was filed stating the making by defendant to the plaintiff, on December 31, 1860, of a note for $655; that the interest thereon was paid up to February 17, 1865, and that the principal, with interest from that date at the rate of 10 per cent. per annum, was due.

          The answer denied indebtedness; denied that defendant had paid interest up to February 17, 1865; denied all payments on said note; alleged that in 1858 Abraham Cocker died at Kankakee, Illinois, leaving a will by which he devised and bequeathed to the plaintiff (his wife) and to the defendant (his son) all his real and personal estate upon trust that they would, immediately after his decease, convert the same into money, pay his debts, and apply the residue as therein directed; that he gave to plaintiff one-third of all his estate, real and personal, during her natural life, and, at her decease, such share should belong to her unborn child; * * * and, should all the children of said plaintiff by testator die, then one-sixth part of said property should descend to his granddaughter, Amelia Ball; and the residue be divided between his sons, John and James, and his daughter, Elizabeth, equally. To his said granddaughter, Amelia Ball, he gave $150 on her reaching the age of twenty-one years; to John he gave three-eighths of his estate; the residue to James and Elizabeth, equally; and he appointed John and Catherine executors of his will. By a codicil he appointed plaintiff and defendant trustees of the trusts of his will; that defendant alone resumed the duties of trustee, and was then performing the same; that plaintiff and defendant became executors; had not made final settlement of the estate; that the net balance of the estate was $10,501.80. Defendant cannot state the precise amount, because plaintiff has collected money and made no final settlement thereof; that, for many years, he has estimated the value of plaintiff's interest in the estate of Abraham Cocker at the interest on $3,500 annually; that plaintiff collected money to the estate of Abraham Cocker belonging, and handed over $655 thereof to defendant on December 31, 1860, as trustee and in his representative capacity, and not in his individual capacity; that since then said money has already been treated by them both as part of the estate; that this, and no other, was the consideration of the note; that, on final settlement, plaintiff will be largely indebted to the estate of Abraham Cocker.

         For another defense he alleged that there was another action pending between the same parties for the same cause of action in this court; and, for another defense, that the cause of action did not accrue within ten years.

         For reply plaintiff denied that the only consideration...

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