State ex rel. Nichols v. Adams

• Decision Date: 30 April 1880
• Citation: 71 Mo. 620
• Parties: THE STATE ex rel. NICHOLS v. ADAMS et al., Appellants.
• Court: Missouri Supreme Court

71 Mo. 620

THE STATE ex rel. NICHOLS

v.ADAMS et al., Appellants.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

REVERSED.

Belch & Silver for appellants.

R. F. Buller for respondent.

HOUGH, J.

This suit was instituted in October, 1874, on the bond of the executrix of the will of John Adams, deceased, to the use of Nancy Nichols, a legatee under said will. The first breach assigned was the failure and refusal of the executrix to pay to said Nancy Nichols the legacy left her by the will, all the debts of the estate having been fully paid, and there being ample funds in the hands of the executrix for the purpose. The second breach assigned was the failure of the executrix to collect the debts due he estate. The third breach assigned was the failure of the executrix to make a true and faithful inventory of the property of the estate, and to make the annual settlements provided by law. The fourth breach assigned was the failure of the executrix to collect from the administrator pendente lite the money and property in his hands, and that which had been loaned out by him for the estate, pending the suit contesting the validity of the will. The fifth breach assigned was that the executrix had squandered the assets of the estate. The defendants denied generally the allegations of the petition, and for a further defense set up that Nancy Nichols had instituted a suit to contest the validity of the will, and that she was thereby estopped to claim anything under it. They also pleaded the statute of limitations.

It was agreed at the trial that the sum of $500 was bequeathed to the plaintiff, Nancy Nichols; that, on the 31st day of August, 1870, the proceeding instituted by said Nancy and others to contest the validity of the will of John Adams was dismissed, and that the defendant, Jane Adams, is in charge of John Adams' estate as executrix, under the bond sued on; that, before the institution of this suit, all the debts of the estate were fully paid, and that there were at the institution of the suit assets in the hands of the executrix sufficient to pay the legacy sued for and not needed to pay debts or expenses of administration, and that, in 1870, demand was made on the defendant by the plaintiff for the payment of said legacy, and the same was not paid.

1. ACTION BY LEGATEE AGAINST EXECUTOR.

The will does not appear in the record, but it seems to be conceded by the defendants that the funds in the hands...