Moses v. Imoses

• Decision Date: 31 July 1873
• Parties: MOULTRIE MOSES et al., plaintiffs in error. v. ISAAC I.MOSES, executor, defendant in error.
• Court: Georgia Supreme Court

50 Ga. 10

MOULTRIE MOSES et al., plaintiffs in error. v. ISAAC I.MOSES, executor, defendant in error.

Supreme Court of the State of Georgia

July Term, 1873.

(Atlanta, July Term, 1873.)

Administrators and executors. Partnership. Settlement. Returns. Investments. Attorney's fees. Before Judge James Johnson Muscogee Superior Court. October Term, 1872.

This bill is filed by Moultrie Moses, Montefiore Moses, Flora Moses, and her husband Otto L, Moses, Sarah Davega, and her husband, Isaac Davega, and Felix T. Moses and Jacob Moses, minors, who sue by their next friend, Moultrie Moses, against Isaac I. Moses, executor of Jacob I. Moses, deceased. It is charged that Jacob I. Moses, died, leaving a large estate of real and personal property, and a will, and codicil, by which he dis posed of the same. Under this will, legacies were bequeathed *to the said Sarah, who was the widow of said Jacob I., and divers other persons. It also gave to Moultrie and Montefiore, and their brother, Rynear, a legacy of $20,000 00, and provided the same should be placed in the hands of three respectable and responsible gentlemen of New York, in trust, to be invested in the best six per cent, securities until Montefiore arrived at twenty-one, when it should be divided into three equal parts, one to be given to Montefiore, and the balance to be kept until Moultrie arrived at twenty-one, when he should have half, and the balance to be kept until Rynear became twenty one.

The balance of the estate might be continued in business by his executors as long as it might be considered perfectly safe to do so, for terms of three years, and should pay an interest of seven per cent, clear profit, payable monthly. Of this interest he gave his wife, for her own and the support of the said Flora and such other children as might be born, $100 00 per month, and for the support of his three sons, $75 00 per month. The codicil raised the amount to his wife $50 00 per month, and to his sons $25 00 per month, making, in all, a monthly sum of $250 00.

The residue of the interest and profits to be invested as fast as received for accumulation, and so with any part which may be withdrawn from business until January 1, 1870, when the whole of that part was to be divided between all his children equally To this will his wife, Sarah, was appointed executrix, and his brother Isaac and brother-in-law, A. J. Brady, and friend, Hervey Hall, and his three sons, as they became twenty one, executors

The testator died in 1854, and his estate consisted of real estate, $200,000 00; one-half interest in mercantile house of Hall & Moses, at Columbus, and Hall, Moses & Roberts, at Montgomery, the assets of which were of the value of $300,000 00 over and above liabilities; also, heal estate in Georgia, $100,000 00, and personal property and cash $50,000 00.

The will was proven, and said Isaac I. qualified and took the burden of administering the estate. It is charged that he *received all the estate, and after paying all the debts, there was $250,000 in his hands to be paid the legatees;

that the said Isaac continued said mercantile business for...... years and received large profits; that he sold divers parcels of real estate; that the interest of said testator, when withdrawn from business, was worth $100,000 00; that the executor made no return but managed the estate as his own, and has made large profits by trade and speculation; that the executor has not paid over the $20,000 00 to any persons to hold, as directed by the will, but has kept it in his own hands and used it as his own; that, in settling up the Montgomery interest with Hervey Hall, the surviving partner of Hall & Moses, the said executor himself became the purchaser of said interest, and gave his notes to Hall for $30,000 00 in payment, and afterwards received his said notes from Hall in settlement of the portion of his testator in the concern at Montgomery; that said executor thereby became indebted to the estate in the amount of said notes; that, afterwards, he sold, or pretended to sell, the interest so obtained by him to Wyman, Moses & Company, for a large profit, to-wit: $20,000 00, and received in payment the notes of said purchasers.

That the executor pretended that an amount of said notes received from Wyman, Moses & Company equal to the amount of his own notes received by him from Hervey Hall, were the property of the estate, but that the balance of the notes of Wy-man, Moses & Company were his own property, and having thus disposed of the interest of his testator in the Montgomery concern, he pretended, during the late war, that the estate was in great danger of losing the claim on Wyman, Moses & Company, and in order to save it, it was necessary to receive Confederate money in payment, although the claim existed before the war. But the executor did not receive such money in payment from said Wyman, Moses & Company of the notes belonging to him, and held them after the war. So complainants say theinterest of the testator in the Montgomery concern was lost to the estate by the mismanagement *and illegal actings and doings of defendant, and that he ought to account for the value of the same.

The claimants pray for a discovery and account. Montefiore and Moultrie claim each one-third of the $20,000 00, and each claim one sixth of the residue of the estate.

The defendant answered, giving an account of each item of the assets which came to his hand, substantially, as follows:

The estate consisted of a house and lot, with furniture, in New York, and also several unimproved lots in New York. The balance of the estate consisted of the one-half interest in the firm of Hall & Moses of Columbus The house and lot was given by the will to the wife and children during life, and the furniture to wife and children. The unimproved lots had not been disposed of but were turned over to the heirs and they have sold and divided them amongst themselves, leaving a small balance of $511 66 of personal property in New York, in the hands of the executor, which he has administered in New York

The assets of Hall & Moses consisted of the stock in trade, and notes and accounts in Columbus of the value of $106,264 15, which includes the assets of Jacob I Moses & Company; one-half interest in the firm of Hall, Moses & Roberts, in Montgomery, of the value of $34,932 05; certain real estate in Girard and Columbus. At the death of Jacob I. Moses, Mr. Hall, as surviving partner of the firm of Hall & Moses, took charge of the assets of Hall & Moses, including the real estate and interest in Montgomery, and retained and managed the same until the division which was made in January, 1860.

The share of Jacob I. Moses was not continued in business, not only because the executor did not think proper to do so, but Mr. Hall positively refused to allow it to be done, and the firm was dissolved by the death of said Jacob I. On the 1st of January, 1855, a balance sheet was struck which shows the assets, of every kind, belonging to Hall & Moses, and the nominal value of these assets, giving the cost of property purchased by the firm, and the amount due on the notes and accounts *due the firm, and the amount of capital invested in the firm of Hall, Moses & Roberts A copy of this balance sheet is set out, which is correct. The nominal value of the assets is $208,515 94.

After deducting the capital in Hall, Moses & Roberts, andthe real and personal property, which is otherwise accounted for, the individual accounts of the partners, the expense account, charges account and some bank bills, which were worthless, there remained of available assets for division, supposing every dollar due the firm was collected without expense, $136,823 21, one-half of which belonged to Jacob I. Moses.

The stock of goods was sold by the survivor to a new firm, consisting of the said Hall, William A. Beach, Jacob P. Hendricks and the defendant. The amount it sold for was $66,762 90, and this was its value. It was understood between Mr. Hall, as survivor, and defendant, that it should be the special business of defendant to settle up the affairs of Hall & Moses, and bring them to such a condition that a division could be made of the assets.

The debts due by Hall & Moses amounted to $93,491 82. The amount due the firm upon open accounts, $87,501 57, and by note, nearly $70,000 00. These notes and accounts were the accumulations of many years' business, and were due, perhaps, by three thousand different persons, in various amounts, scattered over portions of Georgia and Alabama.

It required great labor and vigilance to pay off the debts and collect the notes and accounts, and it was not until 1860 that defendant could get the assets in a condition to be divided. On the 1st of October, 1860, a settlement was had with H. Hall, as survivor, and defendant then took charge of the half interest belonging to Jacob I. Moses, except the real estate, which was held in common..

Previous to this division, defendant had none of the assets of Hall & Moses in his hands as executor, and all payments of legacies and debts made by defendant, as executor, in New York, and by A. J Brady, who first qualified in Georgia, *were made through H. Hall, survivor, and charged against the interest of Jacob I. Moses.

The amounts so paid by Brady and defendant, as executors, were included in the settlement with Mr. Hall.

This defendant, as executor, in New York, has made returns to the Surrogate, and has fully accounted for all that came into his hands as such.

Defendant gives a statement of the amount of the assets received from H. Hall, survivor, which does not include the real estate, but does include the rents up to the settlement, as follows:

                -------------------------------------------------------------------------------
                |The account of Jacob I.Moses, on books of Hall & Moses.          |$ 6, 993 12|
                |-----------------------------------------------------------------|-----------|
                |Amount paid A. J.

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