Lich v. Bernicker

• Decision Date: 31 March 1863
• Citation: 34 Mo. 93
• Parties: GEORGE LICH, ADMINISTRATOR OF LOUIS ENGEL, Respondent, v. JOHN L. BERNICKER AND SUSAN BERNICKER, HIS WIFE, Appellants.
• Court: Missouri Supreme Court

34 Mo. 93

GEORGE LICH, ADMINISTRATOR OF LOUIS ENGEL, Respondent,

v.JOHN L. BERNICKER AND SUSAN BERNICKER, HIS WIFE, Appellants.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Circuit Court.

Kribben, for respondent.

A. M. & S. H. Gardner, for appellants.

BATES, Judge, delivered the opinion of the court.

Louis Engel died intestate, leaving a widow and several minor children. The widow is the defendant Susan Bernicker, who intermarried with the other defendant, John L. Bernicker. Upon the death of Engel, his widow took possession of his estate, and used and managed it as if it were her own property. After several years, she married Bernicker, and thereafter she and her husband managed the property. The widow seems to have acted with entire fairness, and without any design to defraud her husband's estate, but in ignorance of what was her proper course.

The plaintiff, having been appointed administrator of Engel's estate, brought this suit for an account of the assets received by the defendants, and for their delivery and payment to him.

The estate consisted principally of money, and a leasehold interest in a lot in the city of St. Louis. The lease had nearly expired; but contained a clause for its renewal for five years longer, if the lessee should have performed all his convenants, including that to pay rent. At the time of Engel's death an instalment of rent was due and unpaid, and shortly thereafter another instalment, and the last, became due and remained unpaid; and thus the right to a renewal of the lease became forfeited. The widow afterward, upon paying up all the back rent, procured a lease to herself of the property for twenty years, and sublet a portion of it, and improved with buildings another portion, using for that purpose money of the estate.

In the progress of this cause, after the defendants had, under the order of the court, delivered up to the plaintiff a note for $3,500, which represented a large portion of the money of the estate, a commissioner was appointed “to take and state an account of all the moneys belonging to said estate, and the use and profits which had come to the hands of the said defendants, or either of them, and of the rents and profits of the leasehold estate aforesaid, up to January first, eighteen hundred and fifty-eight, and of any sale, assignment or transfer of any portion of the same which have come to the hands of said defendants, or either of them, and of any moneys which defendants, or...