State ex rel. Jacobs v. Hearst

• Decision Date: 31 January 1849
• Citation: 12 Mo. 365
• Court: Missouri Supreme Court
• Parties: THE STATE, TO USE OF JACOBS & WIFE, v. HEARST, ADM'R OF HEARST.

12 Mo. 365

THE STATE, TO USE OF JACOBS & WIFE,

v.HEARST, ADM'R OF HEARST.

Supreme Court of Missouri.

January Term, 1849.

ERROR TO FRANKLIN CIRCUIT COURT.

This is a suit instituted to the use of Benjamin H. Jacobs and Polly Jacobs, against George Hearst, administrator of William Hearst, who was one of the securities of Joseph Funk, executor of the last will and testament of John Horine, deceased. Polly Jacobs, formerly Polly Horine, was one of the five children of John Horine. Horine, by his last will, dated 12th December, 1824, directed all his lands lying in Franklin, Washington and Jefferson counties, to be equally divided between his five children. He further directed the executor to sell his tract of land lying in Merrimac township, Franklin county, known as the mill tract. On the 1st April, 1825, the executor sold this tract of land for the sum of $340. On 14th July, 1830, the executor, Funk, received the sum of $548 75, for three shares or dividends which John Horine, deceased. had and was entitled to in the proceeds of the sale of a certain tract of land lying in Washington county, sold under an order of the Circuit Court of said county. Suit is brought against the administrator of the security of Funk, on his executor's bond for one-fifth of these two sums with interest from the period they were received. By reference to the evidence it will be seen that the executor returned the sale of the mill tract on the 1st April, 1845, to the office of the county clerk, and on the 4th February, 1833, he, as executor, filed an additional inventory for the sum of $548 79, which was the amount he received from the proceeds of the sale of the land in Washington county. The plaintiffs, to sustain the issue on their part, introduced the executor's bond. The will of John Horine, deceased, the letters testamentary of Funk, the sale list showing the sale of the mill tract, Funk's receipt of the land sold in Washington county--additional inventory, and the parol evidence of a witness in regard to the sale of the land in Washington county, and the identification of Polly Jacobs, and her marriage with Benjamin H. Jacobs. The defendant to sustain the issue on his part, offered and read in evidence. 1st. An order of the County Court of Franklin county, made on the 6th February, 1839, appointing Joseph Funk guardian of Solomon L. and Mary Ann Horine, 2nd. The bond of Joseph Funk as guardian with John Pritchell and William Campbell as securities in the sum of $1,000, dated 6th February, 1839. 3rd. An order of the County Court of Franklin, exempting Joseph Funk as executor from making any longer annual settlements, which order was made on the 3rd August, 1830. All this evidence was excepted to by the plaintiffs. At the close of the evidence, and at the instance of the plaintiffs, the court gave the following instruction: “If the court, sitting as a jury, find from the evidence that Joseph Funk, executor of John Horine, sold the mill tract of land for $340, on the 1st April, 1825, and that on the 14th July, 1830, he received the sum of $548 75 from the proceeds of land belonging to John Horine, sold in Washington county, then under the will of said Horine, the relators are entitled to recover one-fifth of these two amounts against the defendant, together with interest thereon at the rate of six per cent. per annum, from the time they were received to this date.” And of its own accord the court...