Chandler v. Stevenson

• Decision Date: 31 October 1878
• Citation: 68 Mo. 450
• Parties: CHANDLER v. STEVENSON, Plaintiff in Error.
• Court: Missouri Supreme Court

68 Mo. 450

CHANDLER

v.STEVENSON, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1878.

Error to Bates Circuit Court.--HON. F. P. WRIGHT, Judge.

Boggess & Cravens for plaintiff in error.

D. K. Hall for defendant in error.

NORTON, J.

At the February term, 1873, of the common pleas court of Cass county, William Chandler, the defendant in error, exhibited for allowance against the estate of Jehiel C. Stevenson, of which Amanda L. Stevenson, the plaintiff in error, was administratrix, a note as follows:

HARRISONVILLE, Mo., November 11TH, 1871.

“Eight months after date, I promise to pay to the order of Thos. E. Dutro, the sum of $808.50, for value received: negotiable and payable without defalcation or discount, at the banking house of Wm. H. Allen, Harrisonville, Missouri, and with interest from date at the rate of ten per cent. per annum.

(Signed,)

JEHIEL C. STEVENSON.”

To the allowance of this demand against the estate of said Stevenson, his administratrix offered a set-off as follows: “Thomas E. Dutro in account with J. C. Stevenson. To 183 lbs. bacon at 12 cents, $21.96; to 185 lbs. lard at 12 cents, $22.20; cash received of Stevenson for house and lots, $400; cash loaned, $1,200.” Total, $1,644.16. The case was tried before the common pleas court--probate side. The court rejected the set-off and allowed the demand in favor of the defendant in error, and against the estate of Stevenson, for the full amount claimed. The plaintiff in error appealed to the circuit court of Cass county, and from thence the case was removed by change of venue to the circuit court of Bates county, where it was tried de novo. The plaintiff offered in evidence the note presented for allowance hereinbefore copied, and an assignment attached thereto, in words and figures as follows, to-wit:

“For value received, I assign the note executed by Jehiel C. Stevenson to Thomas E. Dutro, for about $808.50 dated about ______, and now about, or nearly due, to Wm. Chandler, as collateral to pay a note executed by said Dutro, Chandler, and others, to one White, for about $2,000, and now nearly, or about due, this June 4th, 1872. G. W. Feeley will deliver said note to said Chandler.

(Signed,)

CATHERINE E. DUTRO,

Administratrix of T. E. Dutro, deceased.”

1. ADMINISTRATOR: title to property.

The main and controlling question which this case presents is, does the assignment to Chandler of the note in suit, by Catherine E. Dutro, administratrix of T. E. Dutro, deceased, confer upon him the legal right thereto, and can he maintain an action thereon by virtue of it against the administrator of Stevenson who was the maker of the note. The solution of this question depends upon sec. 40 p. 89, 1 Wag. Stat., which provides “that executors and administrators may assign the notes and bonds of the estate to creditors, legatees and distributees, in discharge of an amount of their claims equal to the amount of such bond or note.” This section was brought to the attention of this court in the case of Stagg v. Linnenfelser, 59 Mo. 342, where it was held that the doctrine of the common law, that administrators took the property of the intestate in absolute ownership, “does not prevail in this State and that the power of the personal representative of the decedent, whether testator or intestate, to dispose of the assets, is limited and regulated by law.” SHERWOOD, J., in delivering the opinion observes in respect to this section, that “as declaratory of the common law right of an executor or...