Smiley v. Smiley

• Decision Date: 31 October 1883
• Citation: 80 Mo. 44
• Parties: SMILEY et al., Appellants, v. SMILEY.
• Court: Missouri Supreme Court

80 Mo. 44

SMILEY et al., Appellants,

v.SMILEY.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Pettis Circuit Court.--HON. WM. T. WOOD, Judge.

REVERSED.

Thos. P. Hoy and Geo. P. B. Jackson for appellants.

F. P. Wright and Snoddg & Short for respondents.

EWING, C.

This suit was instituted by the heirs of Henry Walker Smiley, the appellants, against George W. Smiley and the securities on his bond as administrator of Hy. W. Smiley. Afterward George W. Smiley died, and the suit was revived against his executors. One of the securities, Hunter, was not served with process, and the case was dismissed as to him. The other security, Beaman, was one of the judges of the probate court which approved the settlement of Smiley and discharged him and his securities. On the trial Beaman withdrew his answer, and no defense was made by him. The object of the suit was to set aside the final settlement of Geo. W. Smiley for fraud, and praying for a true accounting of the assets of the estate. The answer denies any fraud in the final settlement; denies that there were any fraudulent representations or suppression of truth concerning the settlement; denies that Smiley received the sums as alleged. There was a judgment for the defendants, from which appellants have appealed, and ask a reversal upon the ground that the finding of the circuit court is against both the law and the evidence.

The controlling question in this case is as to interest which plaintiffs allege the administrator collected and failed to charge himself with; and it will be to this point that attention is directed.

The inventory read in evidence shows 234 acres of land, and then, “personal property, goods and chattels as follows:” which consist of cash on hand and notes amounting to $2,235.30. Then comes the list and appraisement of personal property not included in the inventory, amounting to $967.50. These were made June 7th, 1864. July 3rd, 1865, the administrator files his first settlement, which states “This accountant charges himself as follows: inventory of real and personal, total appraisement $2,235.30. Total appraisement $967.50. Making $3,211.80.”””

But this evidently does not include the real estate. It is the amount of the cash and the notes and the appraisement of personal property. This settlement shows credits amounting to $101.38, leaving balance due the estate of $3,110.42. The second annual settlement, August, 1866, charges the administrator with $3,110.42; with credits of $88.50; leaving a balance of $3,021.92.

May 3rd, 1869, three years after the last settlement, the final settlement is filed, in which he is charged with the $3,021.92 and “interest on $1,800,” $297; making $3,318.92; with credits of $1,063.90; leaving balance due estate $2,255.02.

Taking this...