Richardson v. Adams

• Decision Date: 30 June 1836
• Citation: 4 Mo. 311
• Parties: RICHARDSON v. ADAMS AND OTHERS.
• Court: Missouri Supreme Court

4 Mo. 311

RICHARDSON

v.ADAMS AND OTHERS.

Supreme Court of Missouri.

June Term, 1836.

APPEAL FROM THE FRANKLIN CIRCUIT COURT

GEYER, for Appellant. The appellant contends, 1st, that Frier or his assignee, was entitled to satisfaction of the legacy to him out of the estate of William M. Fullerton. 2nd. That the recovery by the assignee of Frier is conclusive to establish the extent of his demand. 3rd. That the estate of William M. Fullerton, having been appropriated by Sarah, the widow and administratrix to her own use, she in her life-time was, and her administrator now is liable to pay the amount of said recovery.--2 Johns. Ch. R. 614. 4th. That the recovery having been against the complainant as adm'r of Fullerton, and the amount paid by him, is in equity a just claim against the adm'r and residuary legatee of Sarah Fullerton, to the extent of the assets in his hands. 5th. The fact that plaintiff and defendants were parties to the bill of Harrison, does not conclude the plaintiff, because it does not appear that the bill was dismissed as against the present defendants on the merits, and secondly, the matters now in controversy were not litigated, in that action, new and distinct rights are introduced. Neafie v. Neafie, 7 Johns. Ch. R. 1.

The case of Davoue v. Fanning, 4 Johns. Ch. R. relied on by defendant was an attempt to open an account settled in a former suit, in which plaintiff was a defendant and in which precisely the same rights and interests of the plaintiff, sought to be enforced in the new suit had been expressly decided.

Counsel for the Appellee cited: 1st point. Davoue v. Fanning, 7 Johns. Ch. R. 199; Pevine v. Dunn, 140; French v. Shatwell, 6th vol. 235; Holmes v. Remson, 7th vol. 2, 6; Senifrar v. Hoot, 1st, vol. 47; Lupton v. Lupton,, 2nd, vol. 626-7; also 5 Cranch R.

2nd point. White v. Aylesworth and Wood, 9 Johns. R. 232; also, Jones v. Savien, 8 Johns. R. 453; also, Lansing v. Eddy, 1 Johns. Ch. R. 49; also, Penny v. Martin, 4 Johns. R. 566; Foster v. Wood, 6 Johns. R. 87.

WASH, J.

This was originally a suit in chancery, commenced in the Franklin Circuit Court, by Richardson, the appellant, against the appellees; Richardson's bill was demurred to in the Circuit Court, and a decree entered up against him dismissing his bill, to reverse which he has appealed to this court. The bill states that one William M. Fullerton died in July, 1829, having previously made and published his last will and testiment, whereby he devised to his wife, Sarah, all his property, real and personal, during her life: and upon her death the one-half of his said estate (except the slaves, Brister and Winney, who were to be free) was devised to one Jesse Frier, provided he should cotinue to live with said Sarah, until he arrived at the full age twenty-one years, and Frier was to have also one year's schooling, to be paid for out of the said estate. In case of the forfeiture of the legacy by Frier, the said Sarah was to have the whole estate. The will was duly proved and letters of administration with the will annexed, granted to the complainant and said Sarah Fullerton; that Sarah Fullerton took possession of the whole estate, an inventory and appraisement of which was made out and returned, showing an amount of property to the value of $1580 55 including the two slaves, Brister and Winney, who were valued at $762 50--that none of the property or effects of said estate came into the hands or possession of the complainant, who merely aided said Sarah in the administration thereof; that Sarah Fullerton died in the month of December, 1831, having made and published a will which was duly proved, whereby she devised to Mark W. Ware, one of the defendants, a horse worth forty-five or fifty dollars, and a saddle and bridle, and directed that he should be taught to read, write and cypher, &c., to the defendant, Nancy Ware, she devised one hundred dollars; to the negro man Brister, another of the defendants who was to be free at her death, she devised a horse worth forty-five or fifty dollars; to the wife of the other defendant, Phineas Adams, she devised the negro woman, Winney, for life--remainder to the...