State ex rel. Adams v. Campbell

• Decision Date: 31 July 1847
• Citation: 10 Mo. 724
• Parties: STATE OF MISSOURI, USE OF ADAMS AND OTHERS, v. CAMPBELL, DUDLEY ET AL.
• Court: Missouri Supreme Court

10 Mo. 724

STATE OF MISSOURI, USE OF ADAMS AND OTHERS,

v.CAMPBELL, DUDLEY ET AL.

Supreme Court of Missouri.

July Term, 1847.

ERROR TO PIKE CIRCUIT COURT.

BUCKNER, for Plaintiff. The Circuit Court erred in sustaining the demurrer to the declaration. 1. Because the declaration is substantially good; and if technically defective, could only be reached by a special demurrer. 2. The 4th, 5th and 6th breaches are well assigned. After a payment of debts by a foreign administrator, the balance in his hands, is subject to distribution according to the laws of the place of the intestate's residence, at the time of his death, and ought to be transmitted to the domestic administrator, for that purpose. Story's Con. §§ 513, 514, 518; Davis v. Head, 3 Pick. 128. Bland was administrator in both jurisdictions, and having a balance in his hands, after payment of debts due in Kentucky, it was his duty to bring this balance into the home administration, to be disposed of according to our laws; and for this neglect, he and his securities on his bond here are liable. 3. But if the breaches are not well assigned (viz: 4, 5 and 6), the 1st, 2nd and 3rd are good and sufficient; and the court erred in sustaining the demurrer to the whole declaration. State, use of Darland, v. Porter and others, 9 Mo. R. 356; Rev. Stat. 1835, § 16, art. 3, Practice at Law. 4. The suit is brought by the proper parties. Rev. Stat. p. 62.

WELLS & PORTER, for Defendant. 1. The plaintiff's declaration is substantially defective in all its branches, in this, that it does not state, either that Bland's administration in Missouri, on the estate of Adams, had ever been finally settled and distribution of the residuum, after payment of debts ordered, or that the three years from the grant of letters had elapsed and the debts of Adams been paid or discharged, and consequently, it does not appear, that the persons to whose use the suit is brought, are in a situation to be “injured” by the omissions or misfeasance of Bland in his administration. Videsection 8, of article 7, Rev. Statutes; also § 3, art. 6, title Administration. 2. If the moneys charged to have been received by Bland, and not accounted for, are permitted to be recovered by the distributees of Adams' estate, instead of an administrator de bonis non, the rights of Adams' creditors may be impaired thereby, for aught that appears in the declaration; and they cite the case of The State, to the use of Ingram, v. Rankin and others, 4 Mo. R. 427; also Croslin et al. v. Baker, 8 Mo. R.; the latter case to show that the legal right to personal assets, is in the administrator, where administration has been granted. 3. The 4th, 5th and 6th breaches, seeking to hold the defendants liable for the proceeds of property, received by Bland, by virtue of administration granted to him in Kentucky, are clearly defective in this, that the securities for the administration granted to Bland in Missouri, are not primarily liable for assets or funds of Adams' estate, received by virtue of an administration in Kentucky; and the said securities are only liable, after the court in Kentucky, having jurisdiction of the administration there (administration having been settled or debts paid), shall have ordered the said assets or funds, received in Kentucky, to be remitted to Missouri for distribution. In support of which position, they rely upon Story's Conflict of Laws, §§ 512, 513, 514 and 515, also §§ 517, 518, 2nd ed. same work. And it is not averred in said declaration, that any such order was made, or said funds so remitted. 4. The fact of Bland having been appointed to administer on the estate in Kentucky, as well as on that in Missouri, does not make his Missouri securities any more liable than they would have been if some one else had administered on Adams' estate in Kentucky; and they cite Story's Conflict, §§ 520, 521. 5. The 7th breach is further defective, in not specifying whether the sum of money therein charged to have been received by Bland, was received by him, by virtue of his administration in Kentucky or his administration in Missouri.

SCOTT, J.

This was an action of debt on an administrator's bond, instituted at the instance of Nancy Adams, guardian of the infant children of Daniel Adams, and for her and their use. The defendants were the sureties of Thomas Bland, the administrator of D. Adams. There was but one count in the declaration, containing seven breaches of the condition of the bond. The first three breaches alleged in substance, that the administrator. Bland, had received several sums of money, for which he had failed to account. The remaining breaches allege substantially, that Bland, the administrator in this State, took out letters of administration on the estate of Adams, in the State of Kentucky, and as such he had received large sums of money, for which he failed to account. One of these last counts states moreover, that the moneys received by the administrator in Kentucky, are subject to distribution among the heirs of D. Adams, the intestate. There was a general demurrer to the declaration, which was sustained, and the plaintiff sued out this writ of error.

There being but one count in the declaration, alleging several...