Riggin v. Creath

• Decision Date: 28 March 1899
• Citation: 60 Ohio St. 114,53 N.E. 1100
• Parties: RIGGIN et al. v. CREATH.
• Court: Ohio Supreme Court

53 N.E. 1100

60 Ohio St. 114

RIGGIN et al. v. CREATH.

Supreme Court of Ohio.

March 28, 1899

Error to circuit court, Pickaway county.

Mary E Creath brought her action against Corkwell and Riggin, as executors of the will of John McCafferty, deceased, and the sureties upon their joint bond, to recover the sum of $1,006.73, the balance of her share of the sum which the probate court had found due in the hands of the said executors for distribution. The questions to be considered here arise upon the third defense in the answer of Corkwell and the evidence relating to issues joined on that defense. That defense is as follows: ‘Third Defense. For his third defense, this answering defendant, George W. Corkwell says that prior to said April 4, 1895, said executors had collected the assets of said estate, and deposited the same in the Citizens' Bank of Mt. Sterling, Ohio, to their credit as such executors, and that the same were on deposit on April 4, 1895, and so remained until paid out in the settlement of said estate, and the payment of the sum hereinafter referred to, as paid to George V. Riggin individually, and that the sum so on deposit on April 4 1895, was sufficient to pay the entire balance remaining due upon all of the distributive shares of said estate, of all of which facts plaintiff had full knowledge. This defendant further avers that prior to said April 4, 1895, said George V. Riggin had individually made divers and sundry loans or advancements to said plaintiff upon her distributive share of said estate, the exact amount of which loans or advancements were at the time, and still are, unknown to this answering defendant, George W. Corkwell. That on said April 4, 1895 said executors and part of the legatees of said estate including plaintiff, met in the probate court of Pickaway county, Ohio, for the purpose of settling said estate, and determining the amounts of the several distributive shares of each of said legatees, and paying the same in full, of all of which plaintiff had full knowledge. That at the said time and place said George V. Riggin and plaintiff represented to this answering defendant, George W. Corkwell, that he, George V. Riggin, who is a brother-in-law of plaintiff, had an accounting to make with plaintiff of his said loans and advancements to her; and thereupon said George V. Riggin and plaintiff retired privately and apart from this answering defendant, George W. Corkwell, and made a settlement of their said accounts, and plaintiff, with a full knowledge of all of the facts aforesaid, signed for and gave to said George V. Riggin, individually, a receipt in full to said executors for her distributive share in said estate; and said George V. Riggin, individually, with the knowledge and consent of said plaintiff, presented said receipt to this answering defendant, as such executor, and represented to this answering defendant, George W. Corkwell, that he, George V. Riggin, individually, had paid to plaintiff the full amount of her distributive share in said estate, and that the same was therefore due and payable to him, said George V. Riggin, individually. Whereupon, and in reliance upon the conduct and representations of the plaintiff, and this answering defendant, George W. Corkwell, believing that plaintiff had been paid her share of said estate in full, said executors executed and delivered to said George V. Riggin, individually, their check upon said funds of said estate so deposited in said Citizens' Bank of Mt. Sterling, Ohio, as aforesaid, for the sum of $1,768.86, and which said check was on April 5, 1895, duly presented by and paid to said Riggin individually, whereby the said sum of $1,768.86 became and was and is wholly lost to, and placed beyond the control of, said executors, and this answering defendant, George W. Corkwell. This defendant further says that prior to said April 4, 1895, plaintiff borrowed a large sum of money from one A. R. Alkire, who was at that time and still is the president of the said Citizens' Bank, upon the promise of repaying the same out of her distributive share in said estate, and that both plaintiff and said Alkire knew that the funds of said estate were deposited in said Citizens' Bank, of which said Alkire was president. And, at the time of said accounting between plaintiff and said Riggin, said Riggin, as this plaintiff is since informed and believes, paid to plaintiff a part of the sum so found due her on said accounting, in currency, but the exact amount of which payment in currency this defendant is unable to state, and for the balance so found due her upon said accounting said Riggin thereupon gave her his individual check upon the Farmers' Bank of Mt. Sterling, Ohio, for the sum of $1,006.73, which sum of money in currency and said check she then accepted in full satisfaction of her said distributive share in said estate; and thereupon, and with a full knowledge of all the facts aforesaid, executed and delivered to said executors her receipt for said sum...