Pattison v. Coons

• Decision Date: 31 March 1874
• Parties: EVERETT W. PATTISON, Administrator de bonis non of the estate of PHILIP GIBSON, deceased, Plaintiff in Error, v. EDWARD COONS, Defendant in Error.
• Court: Missouri Supreme Court

56 Mo. 169

EVERETT W. PATTISON, Administrator de bonis non of the estate of PHILIP GIBSON, deceased, Plaintiff in Error,

v.EDWARD COONS, Defendant in Error.

Supreme Court of Missouri.

March Term, 1874.

Error to St. Louis Circuit Court.

E. W. Pattison, for Plaintiff in Error.

Cline, Jamison & Day, for Defendant in Error.

VORIES, Judge, delivered the opinion of the court.

The plaintiff in this case as the administrator de bonis non of the estate of Philip Gibson, deceased, brought this action to surcharge the final settlement made by the defendant as the former administrator of said estate, on the ground that defendant, as such administrator, had received nine hundred and sixty-two 61-100, dollars as assets of said estate, which he had fraudulently failed to inventory as assets belonging to said estate, and had in his final settlement with the Probate Court, after having been removed from said office of administrator, fraudulently withheld said sum and failed to charge himself therewith, thereby defrauding said estate of said sum, etc.

The facts charged in the plaintiff's petition were denied by the defendant's answer. The facts of the case as shown by the bill of exceptions, are about as follows: Philip Gibson prior to the year 1863, was the owner of a small tract of land at or near the City of St. Louis, in St. Louis county, Missouri that said land was laid out into town lots, in said year of 1863, and was called, Gibson's addition to the City of St. Louis. In that year, one E. G. Obear, who was a land agent in St. Louis, was employed by said Gibson, to act as his agent in making sale of these lots. Obear had from time to time, made sale of lots or portions of said land through the year 1863, and the forepart of 1864. On the 6th day of May, 1864, Philip Gibson by deed of that date, conveyed to his wife Elizabeth Gibson, a considerable number of these lots, or in other words, he conveyed the lots to the agent Obear, to be held in trust for the sole and separate use of said Elizabeth, free from the control of her husband, and to be sold at her discretion, the proceeds to become her property free from the control of her husband. After this deed, Obear continued to act as the agent of Philip Gibson as well as the trustee for the said Elizabeth as to the lots conveyed to him for her. He sold a number of the lots belonging to Philip Gibson, as well as several of the lots conveyed to him in trust for said Elizabeth.

Obear had in 1863, opened an account on his books with Philip Gibson in which he made entries of amounts received by him, for lots sold for Philip Gibson, and credited himself with amounts paid out to, or for said Gibson; and after the lots had been conveyed to Obear, in trust for Elizabeth Gibson, he sold several of said lots for her, and in place of opening another account in her name, he entered the amounts received for the lots sold for her use, in the same account opened with Philip Gibson as aforesaid. This account was read in evidence, from which it was shown that various amounts had been paid out to Philip Gibson, amounting in all to several thousand dollars, and that there was still in the hands of Obear, the sum of nine hundred and sixty-two dollars and sixty-one cents. It was also shown, that a larger sum had been received by Obear for lots sold by him, which were held by him in trust for Elizabeth Gibson, than the whole amount still remaining in his hands, and there was no evidence...