OPINION
BAKEWELL
J.
This
was an application to the probate court by the administrator
de bonis non of John B. Carson, to ascertain the
amount of moneys and property of the estate which ought to be
in the hands of the former administrator upon a legal
settlement, and for judgment for such amounts against such
administrator and William F. Ferguson, one of the sureties
upon his bond, and for execution to enforce said judgment.
The petition specially sets up seventeen items of credits
taken by the former administrator in his settlements, to
which it is claimed he was not entitled, amounting altogether
to $32,141.44. Ferguson filed an answer, setting up in full
the facts afterwards introduced in evidence, and claiming
that the estate is indebted to him for a sixth class demand,
and that otherwise all debts, demands, and legacies are fully
paid.
On
hearing, the probate court found that the amount due by the
former administrator at the date of the revocation of his
letters, was $8,752.53, and rendered judgment accordingly. On
hearing anew in the circuit court, the finding was for the
same amount with interest, and the judgment was, therefore,
for $9,080.73.
Whilst
the proceeding was pending, Ferguson died, and the cause was
revived against his administrator.
The
testimony, with the exception of that of defendant Carson in
his own behalf, was entirely documentary. The only testimony
introduced by defendant was this evidence of Carson, and a
deed from himself and wife and Jane U. Postlethwaite and
husband to Webb.
It
appears from the evidence that the will of John B. Carson was
made on the 13th of July, 1866, and proved on the 6th of
August following. This will is as follows:--
"
I give and bequeath to my nephew, John B. Carson, my gold
watch and chain; to my niece, Ellen B. Carson, my diamond
ring; to my step-daughters, Caroline P. Smith and Ann Eliza
Smith, each the sum of twenty-five hundred dollars; to my
nephew, Norman Bruce Carson, one thousand dollars; these
three legacies to be paid as soon as practicable by my
executor, and if necessary for that purpose, he may sell all
of my real estate to pay them. All the rest and residue of my
estate, real, personal, and mixed, I devise and bequeath to
my brother James O. Carson, and my sister, Mrs. James H.
Postlethwaite, of Somerset, Pa., the same to be equally owned
and enjoyed by them and their heirs forever. Having assigned
my profits in the business of the house of J. B. Carson &
Brother, from 31st December, 1865, to my sole partner and
brother, James O. Carson, I hereby direct my executor to
respect that assignment, and to ask no account of the
business since January 1st, 1866. I hereby appoint Judge
William F. Ferguson, executor of this, my will."
James
O. Carson was appointed administrator cum testamento
annexo, and gave bonds on the 30th of October, 1866, in
the sum of $50,000, with William F. Ferguson, Cornelius
Vorhies, Hugh Boyle, and William Ballentine, as sureties.
The
inventory was filed in due time by the administrator. It
shows that the estate consisted of the following property:
Various lots and tracts of ground in St. Louis, as follows: A
tract of two and fifty-two hundredths acres on Grand Avenue,
in which deceased has an interest of an undivided
three-fourths in fee; one hundred and thirty feet on
Washington Avenue, bounded east by Leffingwell Avenue; one
hundred and fifty feet on De Kalb Street, corner of
Douchouquette; lot 38, in block 27, Stoddard Addition, corner
of Locust Street and Leffingwell Avenue, incumbered by deed
of trust for $4,000 and interest. Also one-third interest in
one hundred and nineteen acres on the Meramec river, and a
quit-claim of all the interest of Josiah Dent in a lot in St.
La. Also, the following personal property:--
An
undivided half interest in the machinery and fixtures of the
Missouri Cotton Factory and of the partnership effects of the
firm of Marriot & Co. One hundred and fifty-five shares
in fourteen different banks, business associations, hotels,
railroads, etc. Some stock not yet issued in certain
petroleum companies. The watch, chain, and ring mentioned in
the will. Five promissory notes of various persons, amounting
with interest to about $900. Book accounts on the ledger of
deceased embracing twenty-eight names, and amounting to about
$32,000.
At the
March term, 1868, Carson made his first annual settlement, in
which he charges himself with $17,096.33 and takes credit for
$18,183 paid out, showing a balance in his favor of
$1,086.67. At the September term, 1869, as we judge from the
printer's bill for the advertisement,--at any rate in
1869,-- Carson made his second settlement, after notice as
required by law for a final settlement. This settlement was
intended to be, and was accepted as, and seems to have
complied with, the conditions of a final set tlement. It
showed a balance due the administrator of $5,636.12, upon
making it the administrator was discharged. In this
settlement, the administrator returns as of no value various
stocks remaining unsold, and also returns as of no value all
the bills payable and all the book accounts, with the
exception of the account of E. C. Coulton for $565, which is
stated to be " of some prospective value." The
other names are returned, as to most of them, as discharged
bankrupts, and, as to all of them, as entirely worthless.
The
items in the two settlements may be summarized as follows:-
|
To proceeds of sale of 2 52/100 acres on Grand Avenue
|
$17,750 00
|
|
To received from Marriott, surviving partner of Marriot
& Co., on final setment in probate court
|
10,326 33
|
|
To proceeds of sale of stocks
|
4,770 00
|
|
To dividends received on stocks
|
200 00
|
|
To rents collected
|
1,692 59
|
|
The credit items may be summarized as follows:--
|
|
By costs of probate court and administration
|
$99 70
|
|
By funeral expenses
|
371 00
|
|
By allowed demand of Turney
|
88 49
|
|
By taxes delinquent
|
$157 45
|
|
By general, 1866-7-8
|
1,951 62
|
|
By taxes special
|
1,363 52
|
|
By taxes state and county, personal.
|
23 62
|
|
By taxes state; income
|
123 00
|
|
By taxes on bank stock
|
79 90
|
$3,699 11
|
|
By repairs to realty
|
155 95
|
|
By insurance, realty
|
36 00
|
|
By assessment of Laclede Race Association stock
|
867 90
|
|
By assessment of other stocks
|
247 05
|
|
By commissions paid broker selling stocks
|
27 20
|
|
By special legacy paid Carrie Smith
|
5,000 00
|
|
By special legacy paid N. B. Carson
|
1,000 00
|
|
By paid in full settlement of suit Allegheney Bank v.
Carson, deceased, in St. Louis circuit court
|
1,191 44
|
|
By attorney's fee and expenses in same suit
|
295 10
|
|
By paid to extinguish deed of trust on Locust Street
property
|
4,740 00
|
|
By paid to extinguish deed of trust on Grand Avenue
property
|
3,100 00
|
|
By commissions on sale of Grand Avenue property--discount
on notes for purchase-money and deeds
|
728 00
|
|
By purchase of 1/4 of Grand Avenue property of Hannon
under decree of court, and recording deed
|
3,001 25
|
|
By paid to Mrs. Postlethwaite as residuary legatee
|
5,900 00
|
|
By paid to James O. Carson as residuary legatee
|
7,500 00
|
|
By commissions of administrator
|
1,927 26
|
|
To balance carried down
|
5,636 03
|
|
By balance due administrator
|
$5,636 03
|
During
the lifetime of John B. Carson, suit had been begun against
him in the St. Louis circuit court by Ober and others, which
culminated on March 30, 1874, in a judgment against his
administrator. This judgment was affirmed in the supreme
court of Missouri; and the cause...
