Dix v. Morris

Decision Date31 October 1877
Citation66 Mo. 514
PartiesDIX v. MORRIS, Appellant.
CourtMissouri Supreme Court

Appeal from St. Louis Court of Appeals.

The case is reported in 1 Mo. App. 93.

P. E. Bland for appellant.

Herman A. Haeussler and A. W. Slayback for respondents.

NORTON, J.

This was an action by scire facias issued from the probate court against the appellant, as surety on the executor's bond in the matter of the estate of Henry A. Dix, deceased. The decedent left a will directing the payment of his debts, and giving “the remainder” of his “estate, real, personal and mixed,” to his widow during her widowhood, “for her to use and enjoy for her sustenance and support, and for the sustenance, support and education” of his children, naming them, and providing that should his widow marry, then his “estate, real, personal and mixed, which shall then remain unconsumed and unexpended,” should be equally divided among his children, reserving to his widow all her rights under the law, as if the will had not been made. The will also authorized the executor “to sell and convey by deed or otherwise, all or any portion of my said estate, real, personal or mixed, on such terms or conditions as he shall think proper, in order to carry out the provisions of this will.” It further appoints the widow guardian of the chidren, and Joel G. Harper, executor. The executor duly qualified, giving bond with the appellant as his surety. On the final settlement of the executor's accounts, the probate court found and adjudged a balance against him of $5,813.57, and made an order directing him to pay the same to the respondent. Harper failed to perform this order, execution was issued against him thereon, and a return of nulla bona was made on such execution by the marshal of the county, and thereupon the said scire facias was issued against the appellant, who failing to appear, judgment by default was taken against him in the sum of $5,978.24, from which judgment he duly appealed to the circuit court, where the cause was tried de novo, and which gave judgment against the appellant for $6,220.57. On appeal to the general term, and thence to the St. Louis Court of Appeals, the said judgment was affirmed, and the cause is here by appeal from the latter court.

On the trial below, it was admitted that the debts of the estate amounted to the sum of $161, and that the personal assets converted into money by the executor amounted to the sum of $8,100. The breach of the bond alleged was the failure of the executor to perform the said order of the probate court, directing him to pay the said balance found against him on said final settlement. Harper, the executor, disbursed the said $8,100, paying the said debts prior to his annual settlement in 1868, at which settlement there was a balance found in his favor of $350. There was never any order of the probate court directing the executor to take charge of or to rent the real estate, nor any order for the sale of the same, or any part thereof, and without any such orders the said executor collected the rents of the realty, and brought the same into his administration by charging himself therewith in his accounts and settlements with said court, and sold a portion of the realty and brought the proceds of sale into administration, charging himself therewith in said accounts and settlements. These rents and proceeds of the sale of land wholly constitute and compose the balance found by the probate court against the executor on his final settlement--and which the said court ordered to be paid over as aforesaid. All of these facts the appellant offered on the trial, to show by the annual and final settlements, and by the records of the probate court; but the court overruled said offer and excluded said evidence, on the objection made by the respondent, who admitted the facts to be as offered to be proven, but claimed that the facts themselves were irrelevant and incompetent, and the appellant duly excepted to such ruling of the court.

It is urged as a reason for the reversal of the judgment, that the...

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  • State ex rel. v. Johnson et al.
    • United States
    • Missouri Court of Appeals
    • 6 d2 Março d2 1934
    ...Inhabitants of Carondelet, 8 Mo. 644; State v. Holt, 27 Mo. 340; State ex rel. v. Rucker, 59 Mo. 17; Henoch v. Chaney, 61 Mo. 129; Dix v. Morris, 66 Mo. 514; State ex rel. Frost v. Creusbauer, 68 Mo. 254, l.c. 257; State ex rel. Cantwell v. Stark, 75 Mo. 566, l.c. 569; State ex rel. McKown ......
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    ...bond is concluded by, and cannot attack collaterally, a final settlement from which there has been no appeal. See, also, Dix v. Morris, 66 Mo. 514; v. Creusbauer, 68 Mo. 254; Slagle v. Entrekin, 44 Ohio St. 637, 10 N.E. 675; Wehrle v. Wehrle, 39 Ohio St. 365; Casoni v. Jerome, 58 N.Y. 315; ......
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