Cruce v. Cruce

• Decision Date: 30 April 1884
• Citation: 81 Mo. 676
• Parties: CRUCE, Executor, v. CRUCE et al., Appellants.
• Court: Missouri Supreme Court

81 Mo. 676

CRUCE, Executor,

v.CRUCE et al., Appellants.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Henry Circuit Court.--HON. F. P. WRIGHT, Judge.

REVERSED.

M. A. Fyke for appellant.

The executor should be charged with compound interest, because, by the will, he was appointed testamentary guardian of Agnes and Julius, which appointment he accepted, and continued to act in that capacity until they arrived at their majority. Hinckley's Testamentary Law, § 385, and cases cited; Reeves' Dom. Rel., 467, note; White v. Parker, 8 Barb. 48. By Revised Statutes, section 2564, guardians by will are in all things upon the same footing as guardians appointed by the court or chosen by the minor, except the latter shall have no right to choose another guardian, etc. Under Revised Statutes, section 2599, and General Statutes 1865, page 471, section 41, it was the duty of the guardian to have loaned the money of his wards at the highest legal rate, to be paid annually, and if not so paid, to become part of the principal and bear interest at the same rate.

B. G. Boone with John F. Philips for respondent.

The only material points at issue in this case are: First, whether the court below should have charged the executor with the sum of $3,200 or $4,100 on sale of land to Ming. The court charged the executor with $3,200 on this sale, estimating the land at $5 per acre. The evidence of Cruce, Ming, Salmon, Cock and Holland established, as we think, beyond controversy, that $5 per acre was a full, fair and reasonable value for the land at the time of the sale; and computing interest thereon at ten per cent from date of sale until settlement in 1879, amounts to more than the land was worth at the time of the settlement, and shows that the sale was a beneficial and profitable investment for the appellants. That Cruce, and Ming estimated the land at $5 per acre, is conclusively shown by their testimony. The consideration expressed in a deed is always open to explanation--is never conclusive. Miller v. McCoy, 50 Mo. 214; Fontain v. Boatman's Sav. Ins., 57 Mo. 553; Alltringer v. Capehart, 68 Mo. 441. Under the evidence on this point, the court below acted correctly in declining to charge the executor with $4,100, and properly charged him with $3,200. Second, the second point at issue is, the rate of interest to be charged, and the rule of computing it. Under our statute, no specific rate of interest is required. The court shall exercise an equitable control in making executors and administrators account for interest received by them on debts due the estate, and for interest accruing on money belonging to the estate, loaned or otherwise employed by them, and for that purpose may take testimony, etc. In re Davis, 62 Mo. 450; R. S. 1879, §§ 231, 232; Madden v. Madden, 27 Mo. 544; Hook v. Payne, 14 Wall. 257. As to whether interest shall be charged at all, or, if charged, at what rate, is wholly within the discretion of the court in the exercise of its equitable jurisdiction of the case. And, unless that equitable discretion be improperly and unjustly exercised, this court, upon review, will not disturb it. It was the duty of the guardian to make annual settlements. R. S., § 2600. G. S., § 42, p. 471. This he failed to do; therefore, we claim that, as a matter of law, the guardian ought to be charged with ten per cent compound interest. It is contended by respondent that he is not testamentary guardian, but is simply executor, and should be held to account upon the same basis as an administrator. Even if this is so, according to the rules established by this court, he ought to be charged ten per cent compound interest. 1st, Because he has not made annual settlements of his accounts. 2nd, Because the testimony in the case clearly shows that the funds were used by respondent in his own business, and that he kept no separate account of his own money and that belonging to the estate. According to his own statement, he used the money as his own trading in hogs, and sold or traded a large body of land for a stock of dry goods, clearly bringing himself within the rule laid down by this court in a number of cases. In the matter of the estate of Camp 74 Mo. 192, and 6 Mo. Appeals, 563; Williams v. Pettigrew, 62 Mo. 460; Barney v. Saunders, 16 How. 542; Hook v. Payne, 14 Wall, 252; 1 Am. Ld. Cases 523, 535; Moore v. Beauchamp, 5 Dana, 77; Comeggs v. State, 10 Gill & J. 186. 3rd, The testimony clearly shows that the respondent could have loaned the funds in his hands at ten per cent compound interest.

MARTIN, C.

This suit originated in the probate court of Henry county and commenced with certain exceptions taken by an executor to a final settlement adjuged against him by that court, which made him a debtor in the sum of $10,940.12. On appeal to the circuit court, the balance against him was reduced to $5,291.73, from which action of the court the heirs have appealed.

It appears from the evidence that Columbus E. Cruce died testate in December, 1860, designating in his will J. M. Cruce, his brother, as executor of his estate. The testator left two children of tender years, who have since grown up and are the appellants in this case. Agnes became twenty-one in 1874, and Julius in 1878. His will provided that the whole of his property, real and personal, should remain under the control and management of the executor as completely as it was under his own, until his children became of age. He was vested with full power to sell or dispose of any of the property, as he might deem best for the interest of the devisees, who were the two children. He was specially requested to take control and attend to the raising and education of the children.

Shortly after the executor took charge of the property, the war broke out, and he felt compelled to leave his home in Henry county and go to St. Louis. Owing to the disturbed condition of the country, he made no collections until the troubles abated. The courts in Henry county were suspended until 1864. His first annual settlement was made on the 8th of June, 1864. He made six settlements at irregular intervals, and exhibited his seventh and final settlement on the 21st of May, 1878, which, after exceptions and findings by the court, was settled in due form on the 20th of February, 1879, after the heirs had attained their majority. Upon appeal to the circuit court, another settlement was adjudged as his final settlement, which found a balance in his hands of $5,291.73. This was entered at the April adjourned term, 1879, and is the one appealed from by the heirs. They except to the settlement for two reasons; 1st, that the executor ought to have been charged with compound interest; 2nd, that he should have been charged with $4,100, instead of $3,200 on account of a sale of certain real estate to Mr. Ming, the purchaser. In the settlement appealed from, the executor had been charged with ten per cent interest, which was calculated upon each receipt and disbursement from the date thereof till the settlement in June, 1879. The evidence tended to show that the executor had never kept the funds of the estate separate from his own, and that he had not kept, during all the time, books of account showing the items of disbursement. It, also, tended to show that he had used the funds of the estate in his private business. There was no evidence of any profits made by him or of any loans of the funds at any rate of interest. He received the children of testator into his own family and supported and schooled them. In his settlements he takes credit for annual allowances towards their education and maintenance, most of which were approved and passed by the court. His duty in this respect may have been exemplary and considerate enough, but it has not been successful in eliciting any approbation or encomiums from the beneficiaries. In her testimony Agnes says: “Julius was three or four years old when we went to executor's. We lived there during the war. Never had any spending money, and went barefooted. Had no attention whatever. Went to school a little. I was sent off to Farmer City about the time the land was sold. I have asked uncle Marshall to make an allowance for me, but he would not do it. He said he had eight or nine thousand dollars of ours, and wanted to give me his note for that amount.”

It appears from the evidence that money could have been loaned readily at ten per cent per annum in Henry county since the war. In 1864, the executor sold the home place, consisting of 848 acres, for $4,242.50. In 1867, he sold 640 acres to one Ming. In the deed of the latter sale, the consideration, as expressed, was $4,100. In his first settlement it was reported at $3,200. This land may, and it may not, have been sold on its own merits. It appears that it was not sold for money, but that it was, along with 910 acres of his own land, sold for a stock of goods invoiced at between eleven and twelve thousand dollars. The purchaser did not want the 910 acres belonging to the executor, without the 640 acres belonging to the estate. How much the land of the estate contributed to the sale of the land of the executor, does not appear. The evidence, however, tends to show that the land was taken in the trade at $5 per acre, and that the market value of it at that time did not exceed that price. The court declined to hold him responsible for more than this price, and although the transaction has its unpleasant features, I do not feel called upon to disturb the ruling upon the evidence in the record.

The position taken by appellants, that the executor ought to be held responsible as a guardian or curator in this proceeding, cannot be maintained. His responsibility commenced as an executor, and it must necessarily continue until his final settlement and discharge as such. He received the assets in that capacity, and in submitting his annual and final settlements, he must be regarded as accounting for them in the same capacity. Nothing...