Smith v. Paris
| Decision Date | 31 October 1879 |
| Citation | 70 Mo. 615 |
| Parties | SMITH et al., Administrators, v. PARIS et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.
AFFIRMED.
This was a suit upon a note made by defendant Paris with defendants Holland and Bigbee as sureties. The note was given in settlement of a demand which had been allowed against the estate on John Young deceased, of which Paris had been administrator. The defense was that the note had been given by Paris, who was an illiterate man, under the mistaken belief that he had in his hands sufficient assets of the estate to pay the debt; that he had been led into this belief by errors in accounting committed by the officers of the probate court and his own counsel; that upon the showing made by the records of that court the plaintiff had wrongfully obtained an execution which was levied on property of defendant Paris worth more than $50,000; that to prevent the sacrifice of this property he had given the note; that as a further condition and consideration for the execution of the note, the plaintiff, through his attorney, Ellis, had agreed that a suit then pending, wherein one Headlee, as administrator de bonis non of Young, sued defendant Paris and the sureties in his administrator's bond should be dismissed, but afterwards, in violation of said agreement, Ellis had refused to cause the dismissal of said suit and it had not been dismissed until defendant Paris had paid the claim of one Anderson against the estate of Young.
J. C. Cravens for appellants.
F. S. Heffernan for respondents.
This case was sent back to the circuit court in 1873, (see Smith et al., v. Paris, 53 Mo. 274.) with a view to let in the evidence offered by defendant to establish the truth of his answer, which had been rejected by the circuit court. When the case was again called in the circuit court, it appearing to that court that the matters in issue involved the examination of long accounts as well as the entire business pertaining to the estate of John Young, deceased, of which Paris, the defendant, was administrator, the court appointed a referee, and he was required to investigate some forty-seven points of inquiry submitted by the court and report the evidence on them and his conclusions on the evidence. On the 30th day of July, 1875, the referee filed his report, which included all the evidence taken before him, and his opinion in regard to all the points submitted to him. The amount of it was, that the administrator, Paris, was then chargeable with upwards of $15,000.
On the 1st day of November, 1875, the defendants filed their exceptions to the report, which are as follows: “The said report is incomplete, defective and unjust to defendants in this, that the referee fails to give Paris credit for the expenses of administration of said estate, amounting to about $3,373.32, as follows:
Expenses of administration (Ex. D.”)
$1,800 63 Commission on $17,453.68 872 69 Attorneys' fees, Sherwood and Young 500 00 Attorney's fees, Bray 200 00 Total
And fails to deduct such credits or any credits for expenses of administration from the money which the administrator received. And in this: That the referee charges Paris with the sum of $993.50, profits by him made on the sale of the Boxley land, when the testimony shows that the administrator was charged in his inventory with the whole amount of the Boxley debt, and that he bought it in to save the estate, and then let Mrs. Boxley have it for the amount of the debt and costs in the case. And in this: The referee charges Paris with the sum of $1,478.43, as money in his hands belonging to the partnership estate of Young & Weaver, when it appears by the evidence that said partnership estate is not yet settled, and without any authority or direction from the court to inquire into the condition of said estate, and without there having been any order of any court of competent jurisdiction making distribution of the assets on hand. And in this: The referee fails to give the administrator credit for the amount paid by him to the bank of the State of Missouri, and Danforth and Sheppard and Roper and Barrett, which amounts were paid during the first year of his administration, and afterwards allowed by the probate court as vouchers in his settlement, the same not having been presented for allowance before that time and classified, to-wit, the sum of $10,287.74, viz:
G. R. Barrett $ 102 13 W. F. Roper 15 00 Bank of Missouri 2,400 00 Bank of Missouri 700 00 Bank of Missouri 500 00 Danforth, cashier 2,620 00 Sheppard, cashier 746 00 Interest to bank 102 30 Interest to bank 101 55 Total
And in this Because the evidence shows that it was a part of the consideration of said note sued on, that the suit of the State to use of Headlee, &c., v. Paris et al., was to be dismissed, and the same was prosecuted by the plaintiffs, through their attorney, Ellis, for their benefit, and that the same was not dismissed, as agreed to be, for more than two years, and then only upon Paris paying $1,200, which amount Paris was compelled, and did pay, in order to obtain a dismissal of said suit, and which amount said Paris should have credit for as against said demand sued on, and which the referee has not allowed.
Defendants, therefore, moved the court, that the whole matter be recommitted to said referee with special instructions to deduct from the amount of the inventory as found in said report, the sums of $993.50 and $1,478.43, making a total of $2,471.93, being amount erroneously charged on the Boxley land and the copartnership estate of Young & Weaver; and that he deduct from the amount of the inventory thus ascertained, the amount the administrator has paid out as costs and expenses of administration, and a commission of five per cent. on all sums paid out, and for attorneys' fees, and for all sums paid out on first, second,...
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