Cocker v. Cocker

• Decision Date: 10 June 1876
• Citation: 2 Mo.App. 451
• Parties: CATHERINE H. COCKER, Respondent, v. JOHN COCKER, Appellant.
• Court: Missouri Court of Appeals

2 Mo.App. 451

CATHERINE H. COCKER, Respondent,

v.JOHN COCKER, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 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.

GANTT, P J., delivered the opinion of the court.

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 of the note was as stated in the answer; admitted it to be true that Cocker died, leaving a will whereby, among other things, he declared that plaintiff and defendant should be answerable each for his or her respective acts, receipts, and defaults, and should be at liberty to retain and allow to each other, out of moneys coming to their hands by virtue of said will, all expenses incurred in executing the trusts thereof; that he gave to plaintiff one-third of all his property during life, remainder to her unborn child; and, in case of the death of such child, then to any other child of plaintiff by testator; or, on failure of such issue, one-sixth thereof to go to his granddaughter, Cordelia Amelia Ball, and the residue to his sons, John and James, and his daughter, Elizabeth (stating the will as the defendant had); and plaintiff denied that defendant alone assumed and entered upon the duties of trustee under said will, or is now acting as sole trustee thereof; denies that, after paying all debts and expenses, the net value of the estate was only $10,501.80; avers that it was about $18,500; that of this money all but about $1,100 was received by defendant, and is retained by him (except about $3,000 paid to legatees other than plaintiff), and used for his own private gain; denies that under said will plaintiff is entitled to only the annual income of one-third of said estate, or that the one-third has been estimated by plaintiff and defendant at $3,500 only; that she is entitled to one-third of the whole estate, which gives her at least $5,000; admits that, prior to December 31, 1860, she collected a large sum of money belonging to the estate of Abraham Cocker, whereof she handed to defendant $655; did not give it to him as co-trustee, nor did he receive it as such; but she paid, and he received, it as her own money to her individually belonging--it having been so declared by the County Court of Kankakee county, Illinois--and defendant has full credit on account of such collection; that the said sum of $655 never has been treated by her, or by defendant, as part of the assets of the estate of Abraham Cocker; denied the pendency of another action for the same cause; and says it is not true that plaintiff's cause of action did not accrue within ten years before the commencement of this suit, or that it is barred by limitation.

The case was tried before a jury in October, 1874, and here was a verdict for plaintiff.

The note sued on was in these words:

“$655. Kankakee City, Illinois, December 31, 1860.

I promise to pay Catherine Cocker, or order, $655, with ten per cent. interest per annum until paid out, for value received.

JOHN COCKER.”

On which was indorsed the following memorandum:

“Interest paid to date in full. February 17, 1865.

CATHERINE H. COCKER.”

There was evidence tending to show that, in 1860, there had been a settlement of the estate of Abraham Cocker; that some of the money belonging to it had been collected by defendant and some of it by plaintiff; that plaintiff was a legatee of Abraham Cocker; that all the money which came into her hands was accounted for in the account filed in the County Court of Kankakee county, Illinois, the day the note sued on was given; that there was a sum of nearly $800 coming to plaintiff as legatee; that of this she lent $655 to defendant, and took therefor the note sued on in this action; that all interest thereon, up to February 17, 1865, had been paid, and that nothing had since been paid thereon. On February 17, 1865, plaintiff had, in the presence of defendant, indorsed upon the note a memorandum of the payment of interest up to that date; that defendant borrowed this money to enable him to pay for land in St. Louis, and did so pay it. There was also evidence on the part of defendant tending to show that, prior to December, 1860, plaintiff and defendant had estimated the value of the estate of Abraham Cocker, and that he agreed to pay her interest on the sum of $3,500, at 8 per cent., as her share of the estate, and that he had, for sometime prior to the bringing of this suit, paid her such interest, and that this note was part of the sum of $3,500. There was evidence on the part of plaintiff that such interest had been so paid, but that the note sued on was a...