Skeen v. Johnson

• Decision Date: 31 January 1874
• Parties: WALTER S. SKEEN, Plaintiff in Error, v. ABRAHAM JOHNSON, et al., Defendants in Error.
• Court: Missouri Supreme Court

55 Mo. 24

WALTER S. SKEEN, Plaintiff in Error,

v.ABRAHAM JOHNSON, et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1874.

Error to Maries Circuit Court.

Ewing & Smith, for Plaintiff in Error.

I. An action for money had and received, lies wherever money has been received by the defendant, which ex equo et bono, belongs to the plaintiff, whether there is any privity between the parties or not. (Kuntz vs. Livingstone, 15 Cal., 344; Cary vs. Curtis, 3 How., [U. S.] 235; Prett vs. Ide, 3 Blackf., 240; Stratton vs. Rastall, 2 T. R., 370; Moses vs. McFerlane, 2 Bull., 1008; McLean vs. Martin, 45 Mo., 393.)

II. The statute fixes the rights of the parties. When children, by their curator, received all the money of their father's estate, to the exclusion of the mother, who is entitled by statute to one-fourth of the whole, or a child's part, can she not pursue this fund, and cannot her claim be allowed against the children's estate, and cannot the Circuit Court, in the exercise of its general jurisdiction, ascertain and determine the rights of all the parties?

G. W. Miller, for Defendants in Error.

I. Johnson is answerable, under his bond, to said minors for the amount in his hands, and if any mistake has been made by the administrator and the County Court, ought not the plaintiffs to seek a remedy in that direction, and not bring a proceeding against the curator, who has violated no duty imposed upon him?

SHERWOOD, Judge, delivered the opinion of the court.

James Hoffman died, seized of a considerable amount of property, both real and personal, and, upon the final settlement of his estate there remained, in the hands of the administrator thereof, subject to distribution, the sum of $5,107.72.

The decedent left at his death a widow and three minor children. The widow has intermarried with her co-plaintiff Walter S. Skeen. No order for the distribution of the assets, remaining in the hands of the administrator, was made. Abraham Johnson, the defendant, at the term next following the final settlement, was appointed curator of the estate of said minors, and gave bond as such curator, and to him the administrator paid over the above mentioned sum of money.

This action was brought by the widow, now Mrs. Skeen, and her present husband, against the defendant, Johnson, as curator, &c., to recover from him, on behalf of Mrs. Skeen, as widow and relict of the decedent, the sum of $1,276.93, as a child's share of the sum paid over to the curator by the administrator.

To the petition, alleging, in substance, the above recited facts, the defendant demurred, assigning among other grounds, that the petition did not state a cause of action. The demurrer was successful, and the plaintiffs have brought this cause here on writ of error.

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