State ex rel. Ingram v. Morton

• Decision Date: 31 March 1853
• Parties: STATE TO USE OF INGRAM, Plaintiff in Error, v. MORTON et al., Defendants in Error.
• Court: Missouri Supreme Court

18 Mo. 53

STATE TO USE OF INGRAM, Plaintiff in Error,

v.MORTON et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1853.

1. In a suit upon an administrator's bond, where the breach assigned was, that, the administrator had failed to pay over money to which the plaintiff was entitled as heir of the intestate, it was held, that the record of a former recovery in a suit on the same bond, where a similar breach was assigned, was only prima facie evidence that the amount claimed in the second suit was passed upon in the former one; and that parol evidence was admissible to show that it was not passed upon, although, under the declaration in the former suit, it could have been given in evidence.

2. An order of distribution, by the county or probate court, is not essential to the right of an heir to maintain a suit against the administrator for his distributive share of the estate.

Error to St. Louis Circuit Court.

Haight & Shepley, for plaintiff in error.

I. The judgment in the former suit is only prima facie evidence that the cause of action sued upon in this suit was passed upon in that; and this presumption may be rebutted by parol evidence, even if the breaches in the two suits were identical, and though the declaration in the former suit is broad enough to cover the subject matter sued for in this. (Phillips' Ev. Cowen & Hill's notes, 838; Jackson v. Wood, 8 Wend. 24, 25; 2 Johns. 227; 16 ib. 136; Perkins v. Walker, 19 Vt. 149; 4 T. R. 146; Seddon v. Tutop, 6 T. R. 607; Bridge v. Gray, 14 Pick. 60; 15 ib. 409; Brown v. King, 10 Mo. 56.) The case of Pinney v. Barnes, (17 Conn. 420,) was decided by a divided court, and does not meet this case.

II. The breaches assigned in the two suits were for distinct and separate causes of action--distinct as to time, distinct as to amount, and breaches of different conditions of the bond. The only breach sued for in the first suit, was the failure to pay over money received by the administrator. In this suit, one of the breaches assigned is the failure to make just and true accounts and proper settlements. This is certainly a different and distinct cause of action, and so the court seems to have thought, by allowing the plaintiff to recover nominal damages. But the true measure of damages for this breach, is the amount the plaintiff failed to prove at the former trial by reason of the failure to include it in the settlement. (Devon v. Pittman, 3 Mo. 179.)

III. The court improperly refused the first instruction asked by plaintiff. (Bagot v. Williams, 3 B. & C. 235.)

IV. No order of distribution by the county court was necessary to enable the plaintiff to recover. The statute does not require it. Under the facts of this case, it would be impossible to obtain it, and the law never exacts impossibilities. (R. C. 1825, sec. 20; 4 Mo. 426; 3 ib. 127; 10 ib. 726.)

Bates and Dayton, for defendants in error.

The recovery in the former suit was a bar to a recovery in this. The evidence shows that all the money the administrator ever had in his hands, was received by him long before the first suit was brought. In that suit, with the requisite evidence, there could have been a recovery of Hannah Ingram's entire share in the estate. The sum alleged in the breach to have been in the hands of the administrator for distribution, and not distributed, was large enough for that purpose. (Pinney v. Barnes, 17 Conn. 420; 1 McLean, 450; 15 J. R. 432; 3 Howard, 87; 16 J. R. 138; 10 Mo. 56.)

RYLAND, Judge, delivered the opinion of the court.

Prior to the 18th of September, 1828, Arthur Ingram and Henry Reilly were partners, doing business in the city of St. Louis. Ingram died a short time before that date, and his brother, Thomas Ingram, on that day took out letters of administration on said estate, and gave bond in the sum of $40,000, with Robert Rankin, Joseph C. Laveille and George Morton as securities, conditioned that said administrator should make a true inventory of the property of the deceased which should come to his knowledge or into his possession, and that he should administer according to law, all the said property that might come into his hands, possession or knowledge, and make, or cause to be made, just and true accounts of his administration, and make proper settlements thereof, from time to time, according to law or the judgment of any court having jurisdiction, and should perform all other matters and things touching said administration, as were or should be provided by law or enjoined by the order, sentence or decree of any court having competent jurisdiction.

On the 25th February, 1842, this suit was commenced on said bond, in the St. Louis Circuit Court, against George Morton, Robert Rankin and Joseph C. Laveille, upon an alleged breach of said bond, in that before the commencement of said suit, on the 30th May, 1834, there had come to the hands and possession of said Thomas Ingram, administrator, the sum of $6,235 14, which had been paid him by John P. Reilly, as administrator of Henry Reilly, deceased, which was never accounted for by said administrator, in any settlement made by him.

The declaration alleged that Hannah Ingram, to whose use this suit was brought, was one of the heirs and distributees of Arthur Ingram, deceased, and as such, entitled to one thirteenth part of said sum, and, by the death of Mary Ingram, another of said heirs and distributees, was entitled to one twelfth part of her share, which was also one thirteenth.

There were three breaches assigned: 1st, that the administrator never accounted for said sum, though it remained in his hands more than three years after granting of letters and after payment of all demands against said estate; 2nd, that he did not well and truly administer goods and chattels and effects which came into his hands before the commencement of suit, to-wit, on the 20th May, 1834, but did convert the same to his own use; 3d, that said administrator did not make, or cause to be made, just and true accounts of his administration, nor make proper settlements thereof from time to time, according to law.

The defendants pleaded, first, the general issue; second, that the debts due from the estate of said Arthur Ingram, were not paid by said Thomas Ingram in his life time; third, that a suit was commenced by said plaintiff, in November, 1836, against said defendants, upon the same bond, for the breach thereof, in not paying over by said Thomas Ingram to said Hannah Ingram, the money due her as distributee of the estate of Arthur Ingram, deceased; and in that suit, on the 29th March, 1841, judgment was rendered in favor of plaintiff, to use of Hannah Ingram, against said Morton, Laveille and Rankin, in the sum of $495 56 as damages, and that the recovery in said action was for the same breaches of the condition of said bond as are set forth in the declaration of this suit; fourth, that there were debts of the estate of Arthur Ingram remaining unpaid at the death of the administrator, of which the administrator had been duly notified, which, at the time of the death of the administrator, had not been closed, and that more than seven years had elapsed before the bringing of this suit.

The plaintiff filed a similiter to the first plea; to the third plea replied, that the recovery set forth in that plea was not for the same breaches of said bond set forth in the declaration in this suit; and plaintiff demurred to the second and fourth pleas, which demurrer was by the court sustained.

In the progress of the case, Rankin and Laveille died, and their representatives were made parties. Upon the trial of the case, the plaintiff introduced evidence tending to prove that Hannah Ingram was one of the sisters of Arthur Ingram; that at the time of his death, there were eleven brothers and sisters living as well as his father and mother; that afterwards, Mary Ingram died unmarried and without a will; that Thomas was one of the brothers of Arthur, and that he died in July or August, 1834; that John P. Reilly was administrator of Henry Reilly, the surviving partner of Ingram & Reilly and that as such administrator, he did, on or after the 20th day of May, 1834, pay to said Thomas Ingram, as administrator of Arthur Ingram, the sum $6,235 14, and which amount had been on that day allowed against John P. Reilly administrator of Henry Reilly, in favor of Thomas Ingram, administrator of Arthur Ingram.

The plaintiff gave in evidence a certified copy of the letters of administration upon the estate of Arthur Ingram, granted to Thomas Ingram, on the 18th September, 1828, and a certified copy of the bond executed by said Thomas Ingram, George Morton, Joseph C. Laveille and Robert Rankin. The plaintiff then rested, and the defendants gave in evidence the record, proceedings and judgment in a suit commenced on the 18th October, 1836, by the State of Missouri to the use of Hannah Ingram, against said Morton, Laveille and Rankin, upon the same bond sued on in this case; and in the declaration in that case, it was assigned for breach, that before the commencement of that suit, to-wit, on the 15th February, 1833, the said Thomas Ingram had, after payment of all demands exhibited against said estate, in his hands, as administrator, the sum of $14,362 22, and of that amount that the sum of $1,104 78 and $92 06 1/2 was due by said Thomas Ingram and was not paid. In that suit judgment was rendered on the 29th day of March, 1841, for $495 56.

The plaintiff, in rebuttal, gave in evidence the annual settlements of his administration of said estate of Arthur Ingram, made by Thomas Ingram, as administrator, with the county court of St. Louis county, and the record and proceedings of said court in relation thereto, in which settlements the last amount credited, as having been received by said Thomas Ingram, was at the February term, 1832, of $2,437 43, as having been received from John P. Reilly, administrator of Henry Reilly and which settlement showed, on the...