Foster v. Davis

• Decision Date: 31 July 1870
• Citation: 46 Mo. 268
• Parties: THOMAS M. FOSTER et al., Defendants in Error, v. JAMES A DAVIS, Plaintiff in Error.
• Court: Missouri Supreme Court

46 Mo. 268

THOMAS M. FOSTER et al., Defendants in Error,

v.JAMES A DAVIS, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1870.

Error to Second District Court.

Draffen & Muir, with whom were Burke & Howard, for plaintiff in error.

Ewing & Smith, for defendants in error.

CURRIER, Judge, delivered the opinion of the court.

This is a proceeding in equity to open and readjust the account of the defendant as executor of the will of Williamson Foster, deceased. It is conceded that the facts alleged in the petition, if proved, will justify the relief prayed for. The contest is narrowed down to three items of credit which were allowed to the defendant on the final settlement of his administration account--one being for an uncollected note of $11.06, one for an uncollected note of $250, and one being for money claimed to have been stolen from the defendant, amounting to the sum of $800. It is charged that these credits were fraudulently procured. Whether so, or not, is the question for decision. The issue is one of fact, and the proofs must determine it.

It is not considered that a labored review of the evidence would answer any useful purpose. I shall, therefore, in the main, content myself with stating results. I have examined the evidence carefully, and fail to find proofs of fraud in relation to the notes which would justify the opening of the account for re-examination, because of anything done by the defendant in procuring their allowance as credits. The credit of $800 stands on a different footing. The sum of $800 was credited to the defendant, upon his representations to the Probate Court to the effect that funds of the State to that amount had been stolen from him--that he had been robbed. If these representations were false, it is conceded that the account should be reformed. The fact of the robbery is not controverted; but the question is, was the defendant robbed of his own money, or was the robbery of funds belonging to the decedent's estate?

On the 10th of March, 1864, armed men in disguise entered the defendant's dwelling-house and rummaged it for plunder. A quantity of money was found concealed in a straw bed, which the robbers seized and carried away. The defendant testifies that no part of the money was his; that at that time he had no money; that $800 of the money taken belonged to Foster's estate; that it was not the identical money which he had collected for the estate, but United States currency which he had taken in exchange for Missouri bank bills, and which he esteemed, as he testified, a better security; that $750, of the $800 taken by the robbers, was in the currency of the United States. He also testified that he had kept funds of the estate on hand from 1861 to the date of the robbery. It also appeared that he had represented, prior to the robbery, that he kept the funds of the estate buried where they could not be found, being induced to adopt this precaution on account of prevalent civil disorder.

It should be observed that where a party standing in a fiduciary relation undertakes to discharge himself from responsibility for...