LaRkin v. Willi

• Decision Date: 25 April 1882
• Parties: WINIFRED LARKIN, Plaintiff in Error, v. LUCINDA WILLI, Defendant in Error.
• Court: Missouri Court of Appeals

12 Mo.App. 135

WINIFRED LARKIN, Plaintiff in Error,

v.LUCINDA WILLI, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Apr. 25, 1882.

The creditor of a corporation which became insolvent pending the adminstration of the estate of a deceased stockholder whose stock was only half paid, no call ever having been made against the stockholder or his executor, cannot, after the final settlement and distribution of the estate, maintain an action against the executor, who is also devisee and legatee, for the debt due from the corporation.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

JOHN M. & M. T. DICKSON, for the plaintiff in error.

WILLI BROWN, for the defendant in error.

LEWIS, P. J., delivered the opinion of the court.

The parties have agreed upon a statement of this case in the following terms:--

“This case comes to the court of appeals upon a writ of error sued out upon a judgment of the St. Louis Circuit Court sustaining a demurrer to the amended petition. The petition states in substance that plaintiff obtained judgment against the Butchers and Drovers' Bank; that Samuel Willi died, the owner of twenty-five shares of the bank stock, of the value of $2,500; that Samuel Willi paid only one-half that amount, and died June, 1876; that he left an estate of about $80,000 realty, and $17,500 personalty, besides said stock; that his will was probated July 1, 1876, before the probate court of St. Louis County; that by said will Lucinda Willi, the defendant, was appointed executrix, and duly qualified as such; that by said will said Samuel Willi directed that all of his just debts should be first paid out of the moneys first coming into the hands of the executrix; that he gave to D. W. C. Brown, a certain gold watch as a specific legacy; that he devised to Rebecca W. Brown, certain real estate; that he devised to Lucinda Willi, the defendant, certain lands, and also gave to said Lucinda Willi, with the exception of said watch, all his personal property, of every kind and description whatever, of which he should die owner, or in which he should have any interest at the time of his death; that said executrix made final settlement of said estate at the September term of said probate court, in the year 1878; that the said Lucinda Willi had, at the final settlement of said estate, received, as legatee under said will, personal property of the nominal value of $23,021.25, and of real value much greater than the sum of $1,250; that at the final settlement of said estate, the said Lucinda Willi, as a devisee under said will, came into the possession of all the real estate that by said will had been to her devised; and that the value of said real estate was then and is now much greater than the sum of $1,250; that...