State ex rel. Richardson v. James

• Decision Date: 31 October 1884
• Parties: THE STATE ex rel. RICHARDSON, Administrator, v. JAMES et al., Appellants.
• Court: Missouri Supreme Court

82 Mo. 509

THE STATE ex rel. RICHARDSON, Administrator,

v.JAMES et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jasper Circuit Court.--HON. JOSEPH CRAVENS, Judge.

AFFIRMED.

Ewing & Hough, for appellants.

(1) The sureties are not responsible for a default of the executor made prior to the date of the bond. (2) The suit and judgment in 1878 are a bar to the present action. R. S. § 581. (3) The settlement made by James, May 29th, 1876, is conclusive that he did not have in his hands $2,523.95 as per order of the court. (4) The court had no power to make the order directing the administrator to pay to respondent $2,523.94. The order is not in conformity to R. S. §§ 233, 234, and was made without notice to the administrator.

F. P. Wright for respondent.

The settlement in 1867 was a judgment and is not presumed to be paid within twenty years. Plaintiff had the option to pursue the summary remedy provided by the statute, or to bring an action on the bond. Wickham v. Page, 49 Mo. 526. The breach sued for was a failure to obey “an order and a decree of a court of competent jurisdiction.” The action was properly brought on the second bond. State to use of, etc. v. Berning, 74 Mo. 98; State to use v. Drury, 36 Mo. 281. Suit may always be brought on the bond of a deceased executor and his securities made liable. Wickham v. Page, 49 Mo. 526. State, etc. v. Drury, 36 Mo. 281.

W. H. Phelps also for respondent.

The settlement between the relator as the successor of Elwood B. James, and the executors of said James, has the force and effect of an allowance of a demand against the estate of said James. Gen. St. 1865, chap. 147, § 47; Seymour v. Seymour, 67 Mo. 303. The defense that the settlement is not a demand or is barred by the statute of limitations, should have been made before the probate court at the time the order to pay respondent was made, and cannot be made in this suit any more than the defense that the administrator had no money in his hands out of which to pay the demand. State ex rel. Wolf v. Berning, 74 Mo. 87. The order of the probate court requiring James to pay the demand, is conclusive upon defendants, and in a suit upon the bond the defendants are not permitted to show that there was no money in his hands with which to pay it. State v. Holt, 27 Mo. 340; Taylor v. Hunt, 34 Mo. 205; State v. Rucker, 59 Mo. 17; State ex rel. Frost v. Crensbaur, 68 Mo. 254. No notice to James was necessary. The order to pay the demand was made at the time of the making his settlement when he was in court, and he filed a motion to set aside the order to pay the demand, which was sustained by the court, because the sum to be paid was not inserted, and the order in question immediately entered.

RAY, J.

The agreed abstract of the record in this cause is as follows, to-wit:

“In the year 1859 Susannah Richardson died and Elwood B. James became the executor of the last will and testament of deceased. Afterwards, in the year 1860, Elwood B. James died testate, and D. S. Holman, W. G. Bulgin and M. M. James became his executors, and entered into a joint bond as such executors, and proceeded to execute said trust. On the 12th day of July, 1867, the county court of Jasper county, on a settlement between respondent and the executors of Elwood B. James, deceased, found by its order, entered of record, that said Elwood B. James at the time of his death was indebted to the estate of said Susannah Richardson in the sum of $2,683.03 on account of assets of said estate which came to his hands as such executor. In August, 1868, the letters of executorship of W. G. Bulgin were revoked by the county court of Jasper county, and thereafter Holman and James acted as joint executors until in May, 1876, the letters of Holman were revoked by the common pleas court of Jasper county, and M. M. James was appointed sole executor, and ordered to give a new bond. That the bond sued on was given by James as sole executor, and the other appellants as securities, on the 29th day of May, 1876, and, at the same time and on the same day, said James made a settlement in said common pleas court showing a balance in his hands of $444,84, which was approved by the court. The same settlement shows that said executor, M. M. James, had paid to the heirs and legatees of Elwood B. James $3,653.93 since the allowance of plaintiff's demand, and for which he demanded and took credit. At the same time the court made an order requiring said James to pay the balance unpaid of plaintiff's demand, but did not fix the amount to be paid, and on motion of M. M. James, the executor, said order was set aside and another was immediately entered setting forth the amount ascertained to be due and unpaid on the demand on the 13th day of June, 1876, in the sum of $2,523.94. This was all done on adjourned days of the April term of said court. No notice was given to James, who testified he knew nothing of the making of said order until long after the time had elapsed.

On the 11th day of November, 1876, the letters of executorship of M. M. James were revoked, and Thomas Buckbee, public administrator, was appointed his successor, and immediately brought suit on the bond of James, Carter and Walser, and on October 4th, 1878, recovered judgment in the circuit court of Jasper county for $581.09, and afterwards this suit was brought, to-wit: October 9th, 1878.

Upon this record, the appellants insist that the sureties in the bond sued on are only liable for the amount of funds in the hands of the executor at the date of the bond, and such as might thereafter come into his hands as such; and that in no event, are they liable for any default or misconduct of the executor, occurring anterior to the date of said bond. Appellants also insist that the settlement of the probate court of Jasper county, of the 12th of July, 1867, was not a judgment or demand against the estate of Elwood B. James, deceased, and if it was, that it was barred by the statute of limitations; and further, that the court had no power or jurisdiction to make the order of June the 13th, 1876, requiring the executor to pay the balance of plaintiff's demand, due and unpaid on the settlement of July 12th, 1867; and if it had, that said order was void for want of notice to said executor. Appellants further contend that the judgment of the Jasper circuit court, of the 4th of October, 1878, recovered by Buckbee, as successor of said James in a suit on the bond in question, is a bar to this action.

In the first place, it may be well to recur to the conditions of the bond sued on, which the record shows to be as follows: “That if M. M. James, executor of the last will of Elwood B. James, deceased, shall faithfully execute the said will, account for all money and property that shall come into his hands, as the property of the deceased, according to the provisions of said will; and perform all other things touching said executorship required by law, or the order or decree of any court having jurisdiction, the above bond to be void, otherwise to remain in full force.” By the terms of the bond, it will be observed that the executor, (for whose default the sureties are liable) not only bound himself to account for all money and property that should come into his hands as the property of the deceased, according to the provisions of the will, but also, bound himself to “perform all other things touching such executorship, required by law, or the order or decree of any court having jurisdiction.” The breach of the bond complained of in this case as shown by the record, was that the defendant, James, had failed, neglected and refused to pay plaintiff the said sum of money, so ordered and required to be paid by said order of June 13th, 1876. If, therefore, the court had jurisdiction to make the order, it is final in its nature and binding on the executor with notice, so long as the same remains unappealed from and unset aside for fraud or otherwise, and if binding on the executor, it is conclusive on his sureties also. There is no pretense that said order was appealed from, or otherwise set aside.

The recovery, also is shown to be for a default of the executor, occurring subsequent to the date of the bond sued on, and for which the sureties in said bond are clearly liable. The condition of said bond, as has been seen, was that said executor should, besides other specified duties, also ...