State ex rel. Collins v. Stephenson

• Decision Date: 31 July 1848
• Citation: 12 Mo. 178
• Parties: THE STATE, TO THE USE OF COLLINS ET AL., v. STEPHENSON ET AL.
• Court: Missouri Supreme Court

12 Mo. 178

THE STATE, TO THE USE OF COLLINS ET AL.,

v.STEPHENSON ET AL.

Supreme Court of Missouri.

July Term, 1848.

ERROR TO HOLT CIRCUIT COURT.

WILSON, for Plaintiff.

1st, The settlement of Margaret McGee is no evidence in this cause for defendants, because her letters were vacated upon her marriage with McGee, and she had no right to make settlement thereafter with any person but the administrator de bonis non. See Stat. 1843, § 24, and therefore the court erred in giving defendant's second instruction. 2nd. That any person interested in the estate has a right to recover upon the bond at any time that a breach thereof occurs, a denial of which principles by the court below, caused it to refuse the five instructions asked by the plaintiff, and to volunteer one of its own, assuming the ground that no suit can be maintained until three years have elapsed after the date of the letter, by any person but the administrator de bonis non, all of which is error. See State, to use of Adams, v. Dudley et al., 10 Mo. R. 724.

STRINGFELLOW, for Defendant.

1st. The record given in evidence by plaintiff shows that the administratrix had, before suit brought, made a final settlement with the County Court, and that on such settlement the estate was in debt to the administratrix. This settlement is a judgment, and conclusive, and shows that plaintiff had no right to recover against defendant. 9 Mo. R. 362; 5 Mo. R. 473; 4 Mo. R. 426; Rev. Code, p. 56, § 8. 2nd. Allowances made by the County Court, on settlements made with an administrator, are judgments, and if not appealed from cannot be reviewed in another court unless upon a charge of fraud in their being obtained. 9 Mo. R. 362; 6 Mo. R. 501; 5 Mo. R. 473; 7 Mo. R. 471. 3rd. It is submitted that suit can only be brought by the administrator de bonis non, where one has been appointed, unless it be shown that the estate has been settled, or an order has been made by the court for payment. What could be the measure of the damages in this case? The plaintiff is entitled to nothing, unless he show that, upon settlement, he would be entitled to distribution; at all events in this case, where the evidence shows no right of the distributees which has been affected by any act of the administratrix nor showing any injury to plaintiff. 4th. Should there be error in this position, still the plaintiff cannot complain, it being manifest upon the record the plaintiff has shown himself not entitled to recover. 9 Mo. R. 305. 5th. The final settlement made by the late administratrix, after her marriage and appointment of administrator de bonis non, is legal, and had to be made, although her letters were vacated. Rev. Code, p. 44, § 34.

ISAAC JONES, on same side.

1st. The declaration is insufficient in law. 2nd. The court below ought to have rendered a judgment against the plaintiff on the demurrer of said plaintiff to defendant's pleas. 3rd. There is not such a joint interest in the persons for whose use this suit is brought as to entitle them to sustain this suit in their joint names. 4th. By dismissing this suit as to some of the plaintiffs, it thereby discontinued the whole suit. 5th. This suit cannot be brought until an order of distribution has been made, or until three years elapsed from the granting of the letters of administration to the administratrix. 6th. The evidence introduced by the plaintiff shows that the administratrix, before the commencement of this suit, had made a final settlement with the County Court, and that upon that settlement the estate was indebted to her; the judgment therefore being according to the right and justice of the case, the court will not disturb it, even although the court below may have committed a technical error. 7th. This suit is brought against the administratrix in her representative capacity, and against the others in their individual capacity, and for this reason the declaration is bad. 8th. There is a variance between the declaration and the bond sued on, in this, that the declaration describes the bond as having been made payable to the plaintiff, to and for the use of the persons for whose use this suit is brought, when in truth it is payable to the State only. 9th. Neither the declaration or proof shows any liability on the part of defendants to the persons for whose use this suit is brought.

SCOTT, J.

This was an action of debt against Margaret Stephenson, as the administratrix of her deceased husband, Wm. Stephenson, and her sureties on her official bond, brought to the use of the heirs and distributees of the said Wm. Stephenson. The suit was instituted on the 2nd October, 1846. The bond was dated the 7th February, 1842, and was conditioned to administer faithfully and account for and pay over all money and property of the said estate, and perform all other things touching said administration, required by law, or the order of any court possessing jurisdiction of the matter. Breaches were assigned on all the conditions, and issue being joined, the parties went to trial. The pleadings will not be noticed, as the points in the cause arose upon the evidence and the instructions given and refused. Orders were made discountenancing the suit as to some of the parties for whose use the suit was brought.

Pending her administration Margaret Stephenson intermarried with Zachariah McGee. Upon this, the court appointed Peter Stephenson administrator de bonis non of the estate of Wm. Stephenson at the March term thereof, 1845, and made an order that the administratrix pay over to him all the effects in her hands. Afterwards, on the 7th April, the administratrix filed what is called a supplemental report to her final settlement, which consisted of a small credit which she claimed, and notified the court that she declined a compliance with its order, requiring her to deliver the effects of her deceased husband in her hands to the administrator de bonis non, on the ground that she had been appointed guardian of her infant children. Afterwards, on the 5th May, Margaret McGee, late administratrix, appeared in court and claimed an account, of which the following is a copy:

The estate of Wm. Stephenson, deceased, to Margaret McGee, as administratrix of said estate, debtor:

To clothing, boarding and schooling six minor children of the deceased three and a half years

$700 00

Do. for keeping one insane girl for three and a half years, at $200 per year

700 00

May 5th, 1845.

$1,400 00

Twelve hundred dollars of the above account was allowed. This allowance brought...