State ex rel. Darland v. Porter

• Citation: 9 Mo. 356
• Court: Missouri Supreme Court
• Decision Date: 31 July 1845
• Parties: THE STATE, TO USE OF JAS. DARLAND, ADM'R, &c., v. JOHN S. PORTER, GEORGE KAY, & ISAAC COTTON.

9 Mo. 356

THE STATE, TO USE OF JAS. DARLAND, ADM'R, &c.,

v.JOHN S. PORTER, GEORGE KAY, & ISAAC COTTON.

Supreme Court of Missouri.

July Term, 1845.

ERROR TO PLATTE.

ISAAS N. JONES, for Plaintiff.

DONIPHAN & BALDWIN, for Defendants. 1. It is not alleged in the declaration that the order of the County Court upon Isaac Cotton, the original administrator, to pay over the moneys and effects in his hands to the plaintiff, the administrator de bonis non--was made upon a final settlement of his, the original administrator's, accounts. This objection goes to the whole declaration. Rev. Stat. p. 44, § 34. 2. The first breach is insufficient in this, that it is not alleged in that breach, that said Cotton failed, neglected and refused to deliver the said moneys, credits, promissory notes and effects, to any particular person; and especially it is not alleged, that he failed to deliver them to the plaintiff, but generally, that he failed to deliver them.

SCOTT, J.

This was an action of debt, on an administrator's bond by an administrator de bonis non, against the former administrator (whose letters had been revoked), and his securities. The declaration contained a single count, in which two breaches were alleged. The first breach charged, that the former administrator failed to pay over the moneys, effects and credits in his hands, belonging to the estate of the deceased, without specifying to whom he failed to pay. The second breach alleged, that the former administrator failed to pay over the moneys, credits and effects in his hands, belonging to the estate of the deceased, to the administrator de bonis non, in pursuance of an order of the County Court of Platte county. A special demurrer was filed to this declaration, which being sustained, and judgment rendered for the defendants, the plaintiff has sued out this writ of error.

It seems that the objection to this declaration, in the view of the defendants, is, that there was no allegation of a final settlement of the County Court with the former administrator, and hence it is contended, that under the 34th section, of the 1st article, of the act relative to Administrators, no action can be maintained against a former administrator, until an order for payment is made by the County Court on him, after a final settlement.

The 34th section of the said article, does provide that a former administrator shall pay over the effects in his hands to his successor, at such times and in such manner as the court shall order, on final settlement.

The next succeeding section enacts, that the next succeeding administrator may proceed against the delinquent and his securities, or either of them, or against any...