Jane A. v. Morris
| Decision Date | 31 January 1876 |
| Citation | 1 Mo.App. 93 |
| Parties | JANE A. DIX, Respondent, v. WALTER B. MORRIS et al., Appellants. |
| Court | Missouri Court of Appeals |
Moneys received by an executor, proceeds of a sale of realty under a power in the will, whether the power was duly executed or not, are assets, and the sureties are liable for their misappropriation.
APPEAL from St. Louis Circuit Court.
Affirmed.
P. E. Bland and J. A. Henderson, for appellants, cited: Aubuchon v. Levy, 23 Mo. 99; Chambers v. Wright, 40 Mo. 482; Cholu v. Knapp, 1 Bradf. (N. Y.) 248; Foteaux v. Lapage, 6 Iowa, 130; Gregg v. Currier, 36 N. H. 204; Smith v. Bland, 7 B. Mon. (Ky.) 22; Stat. Ky. (1842) 240; Schwartz' Estate, 2 Harris, 47; Laws of Penn. (Dunlap's), secs. 7, 8, 9, p. 585, sec. 20, p. 587; Smith's Heirs v. Smith's Admr., 13 Ala. 329; Ill. Stat., sec. 103, p. 1213 (1856); Foultz v. Prouse, 17 Ill. 493; McCoy v. Scott, 2 Rawle (Penn.), 222; Adams v. Adams, 4 Watts, 160; Gibson v. Farley, 16 Mass. 280; Wag. Stat., sec. 10-37, p. 92; Coil v. Putnam's Admr., 46 Mo. 51-55.
Slayback & Haeussler, for respondents, cited: Gamble v. Gibson, 59 Mo. 595
It appears from the record in this case that Henry A. Dix, by his last will, bequeathed all his property to his wife, Jane, durante viduitate, for her support and the support of her five children; if she should marry, the estate then unconsumed to be divided among the children, reserving to her the interest she would have had had he died intestate. The executor, Joel G. Harper, is authorized to sell all or any portion of testator's estate, real or personal, on such terms as to him shall seem good, in order to carry out the provisions of the will.
The executor makes final settlement in the Probate Court on September 22, 1873, and judgment is thereon rendered against him for $5,813.57, balance due the estate, which he is ordered to pay the plaintiff, the widow, according to the terms of the will. From this judgment no appeal is taken.
Execution is issued against the executor, and returned nulla bona. The proper proceedings are commenced against the sureties, which being dismissed against Edmund F. Dix, not served, judgment is rendered against Walter B. Morris, the other surety, and, on appeal to the Circuit Court, on trial, the court finds for plaintiff, against Morris, $6,220.51, renders judgment for the amount of the bond, $30,000, and orders execution for the amount above.
On trial in the Circuit Court, defendant offered evidence which, if admitted, would, as the other side then and there admitted, have shown that the balance found due by the executor, on final settlement, was wholly composed of rents collected, or the proceeds of real estate. This evidence was excluded as incompetent and irrelevant, and we are asked to reverse the case on the ground that the...
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Emmons v. Gordon
...proceeds of all lands received by him from the sale or rent of lands in this State he and his sureties are liable upon his bond. Dix v. Morris, 1 Mo.App. 93; Gamble Gibson, 59 Mo. 585. Finding no reversible error in the record, the judgment is affirmed. Barclay, C. J., Gantt and Sherwood, J......
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State ex rel. Walsh v. Farrar
...v. McElhinney, 61 Mo. 540; Wernecke v. Kenyon, 66 Mo. 275. It was, however, a demand for which the sureties of Dailey were liable. Dix v. Morris, 1 Mo. App. 93; Dix v. Morris, 66 Mo. 514; State v. Creusbauer, 68 Mo. 254. Dailey, as administrator, had taken the property by virtue of the orde......
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State ex rel. Walsh v. Dailey
...61 Mo. 540; Werneke v. Kenyon, 66 Mo. 275. But would be a demand for which the administrator's sureties would be liable.-- Dix v. Morris, 1 Mo. App. 93; Dix v. Morris, 66 Mo. 514. When a surety pays a debt of his principal, he becomes ipso facto entitled to all the benefits that the credito......
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LeWis v. Carson
...sale of realty by the executor under a power unduly exercised, are assets for the sale of which the sureties are liable. Dix v. Morris, 1 Mo. App. 93. It is well settled in this state, that whilst it is a general principle, that realty descends to the heirs, and the administrator has nothin......