Mary A. Hanenkamp's Adm'r v. Borgmier

• Decision Date: 31 July 1862
• Parties: MARY A. HANENKAMP'S ADMINISTRATOR, Defendant in Error, v. FRANCIS BORGMIER, Plaintiff in Error.
• Court: Missouri Supreme Court

32 Mo. 569

MARY A. HANENKAMP'S ADMINISTRATOR, Defendant in Error,

v.FRANCIS BORGMIER, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1862.

Error to Cole Circuit Court.

J. L. Smith, for plaintiff in error.

The plaintiff had no right to recover on the evidence offered and given in the cause. There was no evidence tending to show that Borgmier, administrator of John Hanenkamp, had notice of the fact that Ewing had administered on the estate of the minor child of his intestate in Cole county, or that there was any demands against her unpaid. Now, Mary Adelaide Hanenkamp and Mary Ann Hanenkamp, on the death of their father, John Hanenkamp, became joint tenants in their father's estate; and after the payment of all debts they would take the money in the hands of the administrator in equal parts; but in the event, as was the case, one died before the estate was finally settled or placed in their possession, then the survivor would take the whole estate, of course subject to the debts of the ancestor. (Black. Com. 149.) The said Mary Ann Hanenkamp being a minor and not having come actually into the possession of her interest in her father's estate, the same, unless there had been distribution before her death, could not pass into the hands of an administrator. Now, if there had been a final settlement of her father's estate, and an order of distribution made before her decease, money in the hands of the administrator would clearly have been payable to an administrator of her own estate. But in this case the said Mary Ann Hanenkamp was a mere girl, fifteen years old, entitled to a joint interest with a sister in her father, John Hanenkamp's, estate, and who died unmarried without issue. Now, then, with this knowledge, the administrator gives notice of final settlement and makes it. Order of distribution is made to pay over the money in his hands to those entitled under the law to the same. Who now, after the death of Mary Ann Hanenkamp, would be entitled to said money but the sister of the deceased? It might be said that if the administrator had knowledge of the fact of there being an administrator of the estate of the said Mary Ann Hanenkamp, and of these allowances, that then the administrator could not pay the money to the survivor; but in this case there was no notice of administration or indebtedness of the estate of the said Mary Ann Hanenkamp.

White, for defendant in error.

I. The first instruction asked by the defendant in error and given by the court, if sustained by the evidence, is certainly correct.

II. If the first instruction is in accordance with the law and the evidence, the second must be; otherwise an administrator might do such a...