State ex rel. Burrough v. Farmer

• Decision Date: 31 October 1873
• Parties: THE STATE OF MISSOURI to use of JACOB H. BURROUGH, Administrator de bonis non of the estate of WILLIAM JOHNSON, deceased, Defendant in Error, v. SARAH L. FARMER, et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

54 Mo. 439

THE STATE OF MISSOURI to use of JACOB H. BURROUGH, Administrator de bonis non of the estate of WILLIAM JOHNSON, deceased, Defendant in Error,

v.SARAH L. FARMER, et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1873.

Error to Cape Girardeau Court of Common Pleas.

James B. Dennis, for Plaintiffs in Error.

Louis Houck, for Defendant in Error.

VORIES, Judge, delivered the opinion of the court.

This action was brought against the defendant on an executor's bond.

William Johnson died in Cape Girardeau county in the year 1864, leaving a will in which his wife Sarah L. Johnson, John H. Clark and John H. Wilson were named as his executors. The will was proved and recorded in said county, and on the tenth day of August, 1854, the parties named as executors in the will appeared in the proper Probate court and executed their bond in the usual form as the executors of the estate of the deceased in a penalty of twenty-five thousand dollars, with Thomas Johnson, James Cannon and Alfred Lacy as sureties, procured letters testamentary, and entered upon the discharge of their duties as executors. In 1866 Mrs. Sarah L. Johnson was married to James C. Farmer, who is joined in this suit.

John H. Wilson in the year 1865, removed to the State of Mississippi where he still resides. John Clark died in 1868 and W. H. H. Williams was appointed his administrator, and is joined as such as a defendant in this suit.

At the trial the suit was dismissed as to Wilson and Tracy who were not served with process. At the May term of the Cape Girardeau Court of Common Pleas for 1871, (that court having probate jurisdiction) the letters as aforesaid were revoked and Jacob H. Burrough for whose use this suit is brought, was appointed administrator de bonis non of said estate, and qualified as such.

This suit was brought on the bond executed as aforesaid, by the executors of the estate of William Johnson, deceased, to recover certain sums of money, which, it was charged had come into the hands of said executors as the assets of said estate, and which had not been accounted for by them in the payment of the debts of the estate or otherwise, but had been wrongfully converted to their own use.

The petition further charges, that there were debts proved up against said estate in favor of the guardian of the heirs of one McLean, for over four thousand dollars which remained unpaid, notwithstanding there was money in the hands of the executors applicable to the payment of said debts; but that the money had been by the executors converted to their own use, and the debts still remained unpaid.

The breaches of the bond were assigned in the petition in the usual form, and damages claimed in the sum of five thousand dollars.

The defendant, Sarah L. Farmer, in her separate answer, admits the execution of the bond sued on, but denies the indebtedness of the estate and claims that she renounced the will and that she has never acted as executrix of the estate of her late husband, and that nothing ever came into her hands as such.

The defendants, James Cannon and Thomas Johnson, deny the execution of the bond and deny that the principals in the bond were the executors of the estate, or that the will was ever probated, or that the principals in the bond ever took upon themselves the administration of the estate. They also deny that the estate was indebted as charged in the petition, and charge that the debts named in the petition as being unpaid were barred by the statute of limitations at and before the time they were proved up and allowed against the estate; and that the demands as proved were barred by the statute of limitations as to said defendants at the time this suit was brought, &c.

Replications were filed to all affirmative allegations in the several answers. A trial was had before the court, a jury having been waived by the parties.

The plaintiff to sustain the issues on its part, read in evidence, the bond executed by the defendants as charged by the petition. This evidence was objected to by the defendants on the ground that it had not been approved by the Probate court, and because there was no administration under the will. The objections were overruled by the court and the defendants excepted. The plaintiff then offered and read in evidence the letters of administration de bonis non issued to Burroughs, and an order of the Probate court directing the former executors to deliver and pay over to him the assets of the estate in their hands.

The plaintiffs then offered in evidence, two allowances of demand, as they appeared on the records of the Probate court against said estate in favor of the guardian of the heirs of McLean. One of these allowances was made on an account, and another on a note. Plaintiff also offered in evidence said note and account with the certificate of their allowance indorsed thereon, together with credits indorsed on said claims of various payments thereon.

When these allowances were read in evidence the defendants Johnson and Cannon moved the court to non-suit the plaintiff, as to said defendants, on the ground that they were the sureties on the bond of the other defendants and that it was shown by the said allowances that they were barred by the statute of limitations at the time they were allowed.

This motion was overruled by the court and the said defendants excepted.

The plaintiff then without objection read in evidence the annual settlement of the executors, Clark and Wilson, made in the Probate court showing the amount of assets in their hands, &c.

The plaintiff then read in evidence from the records of the Probate court an order by which an auditor was appointed by the Probate court to take an account of the assets of said estate, and the indebtedness thereof, in connection with which an order was also offered showing the report of said auditor and its confirmation by the court with an order made by the court requiring the distributees to refund to the executors certain amounts out of what had been distributed to them for the purpose of paying the debts of the estate.

This evidence was objected to for the reason that it conflicted with other evidence in the case.

This objection being overruled the defendants excepted. The plaintiff then introduced defendant Williams as a witness, who had at one time been the guardian of the McLean heirs in whose favor the claims against the estate named in the petition had been allowed, for the purpose of proving by said witness among other things, the amounts paid by the excutor Clark to him on said claims, and also to prove that other monies of Clark, which had come into his hands while he was such guardian, had been by the direction and consent of Clark applied on other indebtedness of Clark to him in his individual capacity. The defendants objected to this evidence on the ground that Clark, one of the parties was dead, and that Williams the other party to the transaction, was therefore incompetent as a witness to testify in reference to said transaction, and because Williams was testifying in his own favor. These objections were overruled and the defendants excepted.

The plaintiff then introduced oral evidence tending to show the amounts which had come to the hands of the executors to be by them administered and the amount refunded to them by the distributees under the order of the court, &c. It was proved by Mrs. Farmer, that she had renounced the provisions made in her favor by the will of her husband, and had elected to be endowed under the law, and that she had taken no part in the administration of the estate but had entrusted the whole matter to her co-executors. The other defendants objected to this evidence but their objections were overruled, and they excepted.

The...