State ex rel. Coste v. Fulton

• Decision Date: 31 October 1864
• Citation: 35 Mo. 323
• Parties: STATE TO USE OF FELIX COSTE, CURATOR OF LESSEUR et als., Appellants, v. WILLIAM FULTON et als., Respondents.
• Court: Missouri Supreme Court

35 Mo. 323

STATE TO USE OF FELIX COSTE, CURATOR OF LESSEUR et als., Appellants,

v.WILLIAM FULTON et als., Respondents.

Supreme Court of Missouri.

October Term, 1864.

Appeal from St. Louis Common Pleas Court.

Glover & Shepley, for appellants.

I. In order to make any lapse of time a bar to an action, the person against whom it is to operate must be sui juris able to enforce his rights. Here the real parties in interest are infants of tender years, and for whom no curator was appointed until 1855. Until that time no suit could have been brought by them against these defendants.

II. The statute by its very words makes the limitation of seven years within which suits can be brought against the securities of an administrator relate only to suits of an administrator de bonis non.

III. The fact that the suit was not brought by the administrator de bonis non is not any defence; for the reason that, in the first place, the case shows that the debts were all paid and the estate settled up; and in the next place, that the administrator de bonis non was one of the securities and a party to the suit.

B. A. Hill, for respondent.

I. The right to sue on the bond, in this case, went, by the 44th, 45th and 46th sections of the R. C. 1845, to the successor in the administration, William Fulton, who became administrator de bonis non upon the marriage of the administratrix. Fulton, as administrator succeeding, could alone sue upon the bond; and he is made the sole representative of the estate in administration. (§ 45, p. 70, R. C. 1845.) All such suits against the securities must be brought within seven years. This suit was brought after seven years, when the action was barred. (§ 46, p. 70, R. C. 1845.)

As the administration law makes the successor of Octavia the representative of the estate, and expressly directs all suits on the bond, or for any property of the estate, to be brought by such successor in the administration within the seven years; the curator of the heirs must look to the successor and his bond for any surplus or balance of the estate, to which they may be entitled as distributees.

II. The heirs of the deceased Lesseur had no vested right to a distribution or any distributive share of the estate of their father, when the administration of Octavia, their mother, was extinguished by the marriage. (§ 1, art. 6, p. 100, R. C. 1845.) Distribution was to be made of this estate upon the settlement of the succeeding administrator (Fulton) and not upon the settlement of Octavia Lesseur, before the estate was further administered. The 6th art., p. 100, 101-2-3-4, proves this proposition to be incontrovertible. The sole right of action being by law vested in the succeeding administrator, and the estate not being subject to distribution when the letters of Octavia were revoked and her powers extinguished (§ 32, p. 67, R. C. 1845), the judgment was properly entered for the defendants, and that judgment should be affirmed.

III. On the 24th September, 1852, the court ordered Octavia, the administratrix, to pay over the moneys and deliver the property, &c., of the estate to Fulton, her successor; and this...