Houts v. Shepherd

• Decision Date: 31 October 1883
• Citation: 79 Mo. 141
• Parties: HOUTS et al., Appellants, v. SHEPHERD.
• Court: Missouri Supreme Court

79 Mo. 141

HOUTS et al., Appellants,

v.SHEPHERD.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

G. Will. Houts and Samuel P. Sparks for appellants.

John F. Philips for respondent.

NORTON, J.

This suit was instituted in the Johnson county circuit court by plaintiffs as residuary legatees under the will of Charles Houts, their father, against defendant, as executor of the estate, to set aside for fraud his annual and final settlements, and praying for a true accounting of the assets of said estate. The defendant in his answer denies all fraud in the settlements attacked, pleads the statute of limitations, and sets up that upon a settlement with plaintiffs, he received from each of them a full acquittance of all claims which they, or either of them, had or might have against defendant growing out of his said executorship. The replication to this answer averred that knowledge of the fraud charged in the petition first came to plaintiff's attention within five years next before the institution of this suit; that plaintiff, James W. Houts, was disabled from bringing suit prior to the 31st day of December, 1876, he being up to that time a minor under twenty-one years of age. It is also averred that the receipts and acquittances set up in the answer were procured by false representations; that the settlements of defendant were correct, and that the sum of $275.29, the amount shown by the final settlement to be the balance in defendant's hands, was all that was really due them, and by concealing from them the fact that a suit had been brought by their attorney against defendant, and the fact that defendant took credit for $301.66 more than he was entitled, and the fact that he had omitted to charge himself with a large sum of interest which he had collected. Upon the trial of the same, judgment was rendered for defendant, from which plaintiffs have appealed and seek a reversal on the ground that the judgment is against both the law and evidence.

It appears from the record before us that Charles Houts died in November, 1857, leaving a will in which he provided that all the property, both real and personal, should be sold and his debts satisfied; that the sum of $1,500 should be paid to Emma Cockrell; that whatever then remained should be paid to these plaintiffs, his children. Defendant was appointed executor of this will, and as such qualified in December, 1857, and took charge of the estate. It further appears that the entire proceeds of sale of real and personal property and rental of lands amounted to about $4,500; that this small estate, which does not appear to have been in any way complicated or difficult of management, was in process of administration eleven years, the defendant in the meantime making four annual settlements, the first of which was made on the 15th day of February, 1859; the second, on the 14th day of February, 1860; the third, on the 11th day of May, 1863; the fourth, on the 6th day of July, 1867; and on the 10th day of July, 1868, final settlement was made showing a balance of $275.29 in defendant's hands. It further appears that defendant, in August, 1860, sold his testator's real estate for the sum of $2,842.50, and received at that time, in cash, $947.50, and took from the purchaser two notes, each for $947.50, payable in one and two years with ten per cent interest, and that the notes and interest were collected. It further appears that although more than two years elapsed between the sale of the real estate in August, 1860, and the third annual settlement in May, 1863, and more than four years intervened between the settlement in 1863 and the fourth settlement in July, 1867, and that one year intervened between the last settlement and the final settlement made in 1868, defendant wholly failed and omitted to charge himself with any interest collected on the notes given for purchase money of the real estate, or on any balance in hand. It further appears from the fourth annual and final settlement, after excluding credits allowed defendant for services as executor, commission, etc., and for money lost and interest thereon, that he only disbursed the sum of $2,320.23 of the $4.500 of assets which came to his hands, and that of the sum so disbursed, about $1,500 was paid on account of the legacy to Emma Cockrell, about $200 for repairs of farm, and $112 allowed for uncollected notes, thus showing of the amount disbursed about $500 went to the payment of debts and expenses of administration, other than credits allowed defendant for services, commission and attorneys' fees, which amount in the aggregate to about $480, only about $20 less than all the debts and other expenses of administation. It further appears from the evidence, that defendant deposited in 1864 with Gilkeson, Port & Co., $1,100 of money of the estate, that this money was lost, and that defendant was unsuccessful in a suit instituted by him to recover it. It further appears that defendant, not content with taking a credit for the same as lost, took credit in his fourth settlement for the interest on said sum for $301.66, the latter sums being in excess of what was right or of what in any view of the case, he was entitled to. It also appears that while he took credit for interest on money lost to the estate, he omitted to charge either any interest actually collected by him, or any interest whatever.

1. ADMINISTRATION: fraudulent settlement.

We are of the opinion that the above statement shows such misconduct on the part of defendant as to vitiate, at least so far as the items of interest are concerned, the settlements attacked, and to entitle plaintiffs to an accounting for the improper credit of $301.66, and the interest collected by defendant and omitted to be...