Eans' Adm'r v. Eans
| Decision Date | 31 October 1883 |
| Citation | 79 Mo. 53 |
| Parties | EANS' ADMINISTRATOR, Appellant, v. EANS. |
| Court | Missouri Supreme Court |
Appeal from Cole Circuit Court.--Trial before HENRY FLANAGAN, ESQ., sitting as Special Judge.
REVERSED.
Ewing, Pope & Hough and Belch & Silver for appellant.
Smith & Krauthoff and J. R. Edwards for respondent.
This is a proceeding begun in 1878, in the probate court of Cole county, by the administrator of the estate of Wm. H. Eans, against the widow of said Eans, to recover certain assets of the estate, and is based on the following sections of Wagner's Statutes, page 85:
Section 7. If the executor or administrator, or other person interested in any estate, file an affidavit in the proper court, stating that the affiant has good cause to believe and does believe, that any person has concealed or embezzled any goods, chattels, money, papers or evidences of debt of the deceased, and has them in his possession or under his control, the court may cite such person to appear before them, and compel such appearance by attachment, and examine him and other witnesses on oath, for the discovery of the same.
Section 8. If any person interested in any estate file a like affidavit, against an executor or administrator, the court shall have the same power to cite him and compel his appearance and examination, as in case of other persons.
Section 9. If any such person refuse to answer proper interrogatories, the court may commit him to jail until he answer or be discharged by law.
Section 10. If any person charged and cited as aforesaid, shall appear and in his answer to the interrogatories, deny the truth of the facts alleged in the affidavit, the issue shall be tried by a jury, or, if neither party require a jury, by the court in a summary manner, and judgment shall be rendered according to the finding and for costs.
Section 11. If any person be convicted of unlawfully detaining such goods, money, chattels or effects, books, papers or evidences of debt, the court may compel the delivery thereof by attachment, or in case the person convicted be the executor or administrator, shall compel him to inventory, and have the same appraised as the property of the estate.
The affidavit provided for in the 7th section of the statute, was duly filed by the administrator in this cause, and charges that the defendant had concealed and embezzled various goods, chattels, wares, merchandise, notes, accounts, books, certificates of deposit issued by the National Exchange Bank of Jefferson City, Missouri, and the First National Bank of Jefferson City, Missouri, and various other evidences of debt and choses in action of the deceased, amounting in the aggregate to about $12,500, and constituting the whole of his personal property, and that she had them in her possession and under her control, and refused to deliver them up to said administrator on demand, etc. The defendant being duly cited, appeared in the probate court, and filed her answer, which, in effect, put in issue the allegations and charges of the affidavit.
On a trial of the issues before the probate court--a jury having been waived-- the court after hearing the evidence and arguments in the cause, found that the defendant had in her possession, and refused to surrender, a large amount of goods, chattels and effects of the deceased, of the description mentioned in the affidavit and enumerated in the finding, consisting mostly of promissory notes on various parties, and certificates of deposit in certain banks, for large sums of money, and certificates of shares of stock in a certain bank, some articles of personal property, title papers to real estate, some money and other evidences of debt payable to the deceased, and also the household and kitchen furniture and other property possessed by the deceased, at his death, as alleged in the complaint; and thereupon ordered that the defendant deliver up said effects to said administrator forthwith, and that plaintiff recover his costs, etc. From this finding and judgment of the probate court, the defendant, in due time, appealed this cause to the circuit court, where, at the May term, 1879, the cause was again heard de novo, by the court, a jury having been waived, and Henry Flanagan, Esq., acting as special judge, by stipulation of the parties, the Hon. E. L. Edwards, judge of said court, having been of counsel in the cause. At this hearing before the circuit court, as appears from the bill of exceptions, a large amount of evidence was taken; but for the purpose of properly disposing of this case, it will be sufficient to state its substance generally.
It appears that plaintiff's intestate died in September, 1879; that for the last ten or twelve years of his life he had been engaged principally, in merchandising in Russellville, Cole county, Missouri. The business was conducted in his name, the bills and invoices were made in his name, the notes and accounts were taken and entered in the same manner. At the time of his death, there was on hand, in the store, where the business was conducted, a general assortment of merchandise, dry goods, groceries, shoes and boots, hats and caps, sugar and coffee, etc., estimated at the value of a little over $1,000. There were also a number of promissory notes, on various parties, for divers sums of money, aggregating in amount somewhere between $3,000 and $4,000, some of which were secured by deeds of trust. There were, likewise, certificates of deposits in banks, to the amount of $2,500 with interest; also accounts, on various parties, to the amount of $500. There were also certificates of bank stock to the amount of $200, all of which were in the name and payable to said estate. Besides these there were likewise on hand, at his death, various articles of personal property: One two-horse wagon, one spring wagon, one span of mules, one cow, two or three hogs, a small lot of corn and hay, some garden tools, fishing tackle, household and kitchen furniture generally, some money and title deeds to some four or five lots in the town of Russellville and forty acres of land near by. It also appears that upon the death of said intestate, his widow, the defendant, took and held the possession and control of all said personal property and effects, including said promissory notes, certificates of deposit and shares of bank stock, deeds of trust, title papers and other evidences of debt, claiming to be the absolute owner thereof, and as such lawfully entitled to the possession. It further appears that after the death of her said husband, the defendant sold goods and collected money to the amount of $500, which she deposited in bank, in her own name; and that she also sold the mules in question for $160, and the cow for $25; and that the remainder of said property and effects still appeared to be in her possession and control, and that she refused to surrender the same to said administrator, on demand, claiming to be the owner as aforesaid.
It also further appears that the intestate, W. H. Eans, and the defendant intermarried in 1848, and lived together as husband and wife, from that date, to the time of his death in 1878, a period of thirty years; that at the time of the marriage the wife owned a large amount of property in her own right, variously estimated at from $13,000 to $16,000, and from $15,000 to $20,000; while the husband had but two horses and two or three loads of corn. This property of the wife, it appears, came to her in fee and absolutely, under the will of her first husband, Ivan Scruggs, and consisted, mainly, of a half interest in 1,400 acres of real estate, six heads of horses, some sheep, some cattle, two yoke of oxen, one wagon, farming implements, blacksmith tools, about $1,000 in money, and five or six negro slaves.
It likewise further appears that just before the marriage, and in contemplation thereof, the defendant and the intestate, for the purpose of preserving said property of the wife, with its rents, profits and proceeds to the sole and separate use of the wife, or to such use as she might think fit to appoint; and to protect the same from all liability to the payment of his debts, and also to exclude therefrom all right, title or control of said intended husband, his executor, administrator or assignees, duly made and entered into the following marriage contract, to-wit:
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