State ex rel. Public Admr. of Daviess Cnty. v. Lankford

• Decision Date: 28 February 1874
• Citation: 55 Mo. 564
• Parties: STATE OF MISSOURI, ex rel., Public Admr. of DAVIESS COUNTY, in charge of estate of JOHN C. LANKFORD, deceased, Plaintiff in Error v. THOMAS LANKFORD, Defendant in Error.
• Court: Missouri Supreme Court

55 Mo. 564

STATE OF MISSOURI, ex rel., Public Admr. of DAVIESS COUNTY, in charge of estate of JOHN C. LANKFORD, deceased, Plaintiff in Error

v.THOMAS LANKFORD, Defendant in Error.

Supreme Court of Missouri.

February Term, 1874.

Error to Daviess Circuit Court.

James McFerran, for Plaintiff in Error.

I. The annual settlements made by the administrator, were not judgments, and constituted no defense or impediment to a suit upon the bond, for breaches of its conditions. (Picot vs. Biddle's Admr., 35 Mo., 35, and cases therein cited; State to use, etc. vs. Flynn, 48 Mo., 413.)

J. H. Shanklin, Milt. Ewing and M. A. Low, for Defendant in Error.

I. A person seeking to falsify the allowances and accounts of the settlements of administrators must petition the Circuit Court, as a court of law and equity, for that purpose. (Jones vs. Brinker, 20 Mo., 87; State to use, etc. vs. Roland, 23 Mo., 95.)

II. Annual settlements of an administrator are adjudications of a court of competent jurisdiction, which may be corrected and adjusted, it is true, by the same court on final settlement, yet they cannot be attacked, or surcharged, or falsified, in a suit at law on the administrator's bond. (State to use, etc. vs. Roland, supra; Jones vs. Brinker, supra;Oldham vs. Trimble, 15 Mo., 225; Mitchell vs. Williams, 27 Mo., 399.) In the two last cases there is nothing to indicate that the settlements were other than annual settlements. In the case of Mitchell vs. Williams, supra, the court refers to the settlement in the plural number, and no distinction is made in the method of surcharging and falsifying them.VORIES, Judge, delivered the opinion of the court.

This action was brought by the administrator de bonis non of the estate of John C. Lankford, deceased, against the defendant, one of the sureties on the administration bond of the former administrator. The petition is in the usual form, setting forth the administration on said estate by one Thomas J. Singleton, the execution of a bond by him as such administrator, and that defendant had executed the bond as surety; that Singleton had since died, and that the relator had been duly appointed administrator de bonis non of said estate, &c. After the formal parts of the petition, the plaintiff set forth and assigned several breaches of the bond sued on, among which was the following: “Plaintiff states and assigns as breaches of said bond and the condition thereof, that the said Thomas J. Singleton, as administrator of the estate of John C. Lankford, deceased, did not faithfully administer said estate, account for, and pay and deliver all monies and property of said estate, and perform all other things touching said administration as required by law, or the order or decree of any court having jurisdiction, in this; that is to say; that at the second annual settlement of said estate by the said Thomas J. Singleton, as administrator of said estate, with the Probate Court of Daviess county aforesaid, said court having jurisdiction and charge of said estate, on the 5th day of March, 1863, the said Thomas J. Singleton, as administrator of said estate, had in his hands and was indebted to said estate, of the assets thereof, for the sum of four hundred dollars, and being so indebted for the assets thereof, he, the said Thomas J. Singleton as administrator of said estate, then and there received a credit and allowance, by fraudulent and false means and pretenses, unjustly, to the injury of the estate of the said deceased, and parties interested in his said settlement, against said estate for the sum of four hundred dollars, on account of Sarah J. Lankford's receipt of a slave, Mary, when, in truth and fact, the said Thomas J. Singleton had never been charged, as administrator or otherwise, in any of his settlements of said estate, with said slave or her value, or any part thereof, and was not entitled to said credit, or any credit against said estate on account of said slave or her value, and which sum of four hundred dollars, so due by said Singleton to said estate at said settlement, is still due and unpaid, and has never been accounted for by said Singleton or his legal representatives, or the defendant or said Milton H. Moore (the other surety on the bond), or either of them, to said estate or parties interested, or the plaintiff or this relator or either of them; by which the plaintiff has been damaged to the amount of four hundred dollars, with interest on the same from the said 5th day of March, A. D., 1863.”

There were several other breaches of the bond assigned in the petition, but it is not necessary to set them out herein, as the one already set forth is sufficient to present the principle or question involved in the decision of the case. The defendant appeared, and filed his motion to strike out the first, second, third and fifth breaches assigned in the petition, (the one before set forth being the first) on the ground: 1st. “That said several assignments of breaches are irrelevant and...