Gamble v. Hamilton

• Citation: 7 Mo. 469
• Parties: GAMBLE, ADM'R, v. HAMILTON, ADM'R.
• Decision Date: 31 May 1842
• Court: Missouri Supreme Court

7 Mo. 469

GAMBLE, ADM'R,

v.HAMILTON, ADM'R.

Supreme Court of Missouri.

May Term, 1842.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

POLK & GAMBLE, for Plaintiff.

HAMILTON, for Defendant.

TOMPKINS, J.

This case originated in the Probate Court of St. Louis County. The Court of Probate, on motion of Gamble, among other things, made an order on Hamilton, as administrator of O'Neil, who had been administrator of said Nash, to pay over to said Gamble the sum of $990 83, which, it appeared by the last settlement made with the court by O'Neil in his lifetime, he admitted to be in his hands for the use of the estate of Nash. Hamilton complied with the order, except only as to that part requiring him to pay over the said sum of money; as to which he reported to the court, that said O'Neil left no money on hand at his death. Thereupon, the court ordered, that said Hamilton retain all the money which might come into his hands from the estate of said O'Neil, subject to the order of the court, for the purpose of paying all administrators and guardians such sums as should be found to be due from the estate of the said O'Neil in his character of executor, administrator, &c., in preference to all other demands, which had been or might be established against his estate, to the intent, as declared in said order, that so soon as it should be ascertained that the monies due said O'Neil, and the personal property left by him are insufficient to pay the same, an order should be made for the sale of the real property for that purpose. Hamilton moved the Probate Court to rescind so much of its order as commanded him to retain money that might come to his hands of the estate of O'Neil, for the purposes aforesaid; that court overruled the motion, and the cause was brought to the Court of Common Pleas, by writ of error. In this last mentioned court the order of the Court of Probate was rescinded. The administrator de bonis non of Nash then moved for a new trial; and his motion being overruled, he sued out his writ of error. On the part of the plaintiff in error, it is urged: 1st. That the order of the Probate Court is a mere direction, and is not of the character either to be enforced by process, or appealed from, and until the order of the court is enforced it cannot be either received or reversed. 2nd. That the Probate Court has a general jurisdiction, as well equitable as legal, and under the 34th section of the Administration law, could make the order here made. 3rd. That the record does not show what evidence was given before the Probate Court, upon which the order was made, and for anything appearing on the record, evidence may have been given, that all the property held by O'Neil was purchased with the trust fund.

On the point made by the plaintiff in error as first above stated, it is to be observed that the order of the Probate Court made in the cause was as final and conclusive as it could be. It amounted to a judgment against Hamilton, as administrator of O'Neil, for so much money of the estate when he should first be in possession of funds; and that it would be too late for him to seek redress from the appellate court, after he should have paid out the money under the order of the Probate Court. The plaintiff in error here, after redress given to the defendant in error, might have no assets to repay the money received by him under the order of the Probate Court;...