Clark v. Henry's Adm'r

• Decision Date: 31 July 1845
• Parties: CLARK AND WIFE v. HENRY'S ADM'R.
• Court: Missouri Supreme Court

9 Mo. 339

CLARK AND WIFE

v.HENRY'S ADM'R.

Supreme Court of Missouri.

July Term, 1845.

APPEAL FROM LINCOLN.

CARTY WELLS, for Appellants.

BATES, for Appellee. 1. A court of equity has no jurisdiction, the subject-matter being proper for a court of law. 2. The proper parties are not made, and on this bill the court cannot do complete justice. 3. The merits are with the defendant.

NAPTON, J.

In 1836, Eleanor Erwin filed her bill in the Circuit Court of Lincoln county, against Francis Henry, executor of the last will and testament of Malcolm Henry, deceased. The bill was dismissed by the Circuit Court for want of equity. An appeal was taken to this court, and the decision of the Circuit Court for Lincoln county was reversed, and the cause remanded. See Erwin v. Henry, 5 Mo. R. 471.^(a) The substance of the original bill, as well as the grounds of the decision of this court, may be found in the report of this case. The complainant subsequently intermarried with one William Clark, who is now a co-complainant; they filed their amended bill at the November term, 1838. This amended bill represents that Malcolm Henry died in September, 1832, having made his will, in which, among other things, is found the following: “Item 1st. It is my desire and will, that my boy Adam, Juno and Cynthia, be released from bondage, on condition that Juno serve my sister Mary one year; Adam and Cynthia to serve the executor of my estate (or serve them whom he may hire them to), Adam to serve two years, and Cynthia to serve four, each then to have their perfect freedom.” The will concludes as follows: “My crop of grain, farming utensils, and household and kitchen furniture and stock, all of which I want valued and acted on according to law, after my affairs are settled, then if there is a residue from hire of negroes, crop, &c., I wish to be given to Eleanor Erwin.”

The bill charges that the executor, shortly after the death of the testator, about the 25th September, 1832, took out letters testamentary, took possession of the real and personal estate, made inventories, paid debts, and collected money due the estate; that he paid all the debts and all the specified legacies, and sold all the personal property which the will had directed to be “acted on according to law;” that in November, 1835, the said defendant made a final settlement of his executorship, and that upon said final settlement, the County Court of Lincoln county, did find, that after paying the specific legacies and funeral expenses, and the debts owing by said estate, and the expenses of settling the same, there was no residue. The bill then charges that the assets were more than sufficient to pay all debts and expenses and legacies, and that the executor had fraudulently appropriated a large amount to his own use. The complainants further allege, that the female slave, Cynthia, after the testator's death, and before she became free by the will, had a female child (named Adaline), and in relation thereto the testator died intestate, and charges that the executor failed to apply the value of the slave, Adaline, the wearing apparel of the estate, the hire of Adam for two years, and of Cynthia for four years, to the purposes of the estate, but had appropriated the same to his own use The bill charges that various articles, among others, a horse, some hides, and corn, were not inventoried as they should have been. The bill further charges that the executor opened a trunk of said testator, and calls for a discovery of its contents.

The answer admits the statements of the bill, in relation to the will, executorship, and taking possession of the assets--affirms that inventories were made of all the property of the deceased--declares that the defendant has paid all the legacies, and among others, complainant's; that he made regular settlements with the County Court as required by law, and made his final settlement at the time specified in the bill; and that upon such final settlement, it was adjudged that there was a balance due the defendant from the estate, of $77 31 3/4. The answer further declares, that the defendant paid to complainant $117, and took her written receipt for the same, which sum is the precise amount of the hire of the negroes, mentioned in the bill, after deducting the balance found in his favor as above stated, on final settlement. The answer admits his present possession of said female child. The respondent further avers that he duly accounted with the County Court for all the cash and other property which was found on the premises of the testator, or which in any manner came to his hands; denies all fraud or concealment of property, and contends that the inventories and settlements with the County Court cannot again be investigated.

The evidence read at the hearing, established that the negro man, Adam, would have hired for about ninety dollars during the year 1833 and 1834-- that the woman, Cynthia, would have hired for about $25 with the incumbrance of a child, without such incumbrance she was worth more. There was no evidence to establish any payment on the part of the defendant, as averred in the answer, except a tender of $125 in cash and notes, which was refused by the complainant. The charges in relation to the trunk, the hides, and wearing apparel, appear to have been waived.

Upon the hearing of the cause, the Circuit Court dismissed the bill, and the cause is brought here by appeal.

The first question which demands consideration, is the one relating to the jurisdiction of the court. This question was considered and determined by the court when the case was before it on a former occasion. See Erwin v. Henry, 5 Mo. R.^(b) So far as the conclusion to which the court then arrived was founded upon the phraseology of the 15th section of the act concerning Courts, it is not as we have heretofore taken occasion to observe ( Miller v. Woodward & Thornton, 8 Mo. R. 169), authorized by the language of that section. The jurisdiction of courts of equity in cases like the present, must rest upon the broad clause of our statute, which gives them the general control over executors and administrators, and upon that well settled maxim by which courts of equity retain a jurisdiction originally acquired by reason of the want of a complete and adequate relief at law, notwithstanding the common law courts have been subsequently invested by the Legislature with full power over the subject. The jurisdiction of courts of equity rests upon the same foundations as that of courts of common law, however the jurisdiction of either may have been originally acquired. It is not to statutory provisions that we look for ascertaining the limits of either. Long usage, the decisions of the courts, and the treatises of learned writers, are the chief sources to which we have recourse, when legislative enactments are silent, for the purpose of learning the province of either courts of law or courts of equity. Why should a different rule be adopted in the one case than the other? Is it because the Legislature have declared that courts of equity shall have jurisdiction in all cases where adequate relief cannot be had by the ordinary course of proceedings at law? This we understand to be a mere general definition of the nature and character of chancery courts, as contradistinguished from courts of common law. If interpreted strictly and literally, as has been urged at the bar in the present case, to what narrow limits would our courts of equity be confined? Entire branches of equity jurisprudence, heretofore and up to the present time, exercised without dispute or question, would be lopped off from the system. The whole subject of fraud, a most prolific source of equity jurisdiction, may now be fully investigated in the common law courts. The foreclosure of mortgages has been provided for, and courts of common law are as competent to sell equities of redemption, as courts of equity formerly were. Discovery can now be had at law, as well as in equity, and accidents arising from lost instruments, may be remedied as well on the common law, as on the chancery side of our dockets. Yet courts of equity in this State, have continued to exercised their accustomed jurisdiction on these, and other subjects similarly situated notwithstanding the general provision in our Code restricting them to cases where adequate relief cannot be had at law. To say the least, it would be highly impolitic, at this late day, to attempt to cut off...