State ex rel. Rucker v. Rucker

• Citation: 59 Mo. 17
• Parties: STATE ex rel. JNO. F. RUCKER, et al., Defendants in Error, v. JAMES E. RUCKER, et al., Plaintiffs in Error.
• Decision Date: 31 January 1875
• Court: United States State Supreme Court of Missouri

59 Mo. 17

STATE ex rel. JNO. F. RUCKER, et al., Defendants in Error,

v.JAMES E. RUCKER, et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1875.

Error to Howard Circuit Court.

Turner & Cupples with Thomas Shackleford and J. B. Clark & Son, for Plaintiffs in Error.

I. Mrs. Rucker's removal from this State did not of itself revoke her letters of administration. (Wagn. Stat., 72, § 8.) Whether she had in fact so removed as to justify a revocation, and the divesting of her rights and duties, could only be determined by the designated court in a direct proceeding for the purpose. (Wagn Stat., p. 75, § 35; p. 76, § 42.)

II. Mrs. Rucker's letters not being revoked, (Wagn. Stat., 77, § 45) however it may be construed, is not applicable to this case.

III. The sureties did not bind themselves for the separate administration of James E. Rucker, and are not responsible for his acts as sole administrator. (State to use, &c. vs. Boon, 44 Mo., 262.) Though co-administrators may in many things act separately, a final settlement having the force of a judgment, must be made by them jointly.

IV. The 6th declaration of law asked ought to have been given. (Jacobs vs. Hearst, 12 Mo., 365.) It is immaterial whether the assets were in the hands of Mrs. Rucker or of her co-administrator. In either case, in point of law, she was in possession, and this possession passed from her as administrator, to her as guardian. (Dobyns vs. McGovern, 15 Mo., 662.)

Herndon, with Lay & Belch, and Adams, for Defendants in Error.

I. The letters of Amanda K. Rucker were revoked by operation of law when she became a non-resident, and no action of the County Court was necessary. (Wagn. Stat., 72, § 8; Chouteau's Exr. vs. Burland, 20 Mo. 482.)

II. James E. Rucker then became sole administrator and the sureties were bound by all his acts and by his final settlement. (Wagn. Stat., 77, § 45; State to use vs. Boon 44 Mo., 254; Dobyns vs. McGovern, 15 Mo., 662.)

III. Amanda K. Rucker was made guardian after becoming a non-resident, and after her letters of administration were revoked, and after the final settlement by James E. Rucker, and the estate was not in law or in fact in her hands when she became guardian. And hence the sureties were not released by her qualification as such.

IV. The sureties were liable for the acts of James E. Rucker, although acting as sole administrator. If not, there is no protection for parties interested in estates when there are more administrators than one, and part resign or become non-resident.

HOUGH, Judge, delivered the opinion of the court.

This is an action to the use of John F. Rucker and Georgie Rucker, minor heirs of Franklin H. Rucker on a bond to the State of Missouri in the sum of six thousand dollars, executed by Jas. E. Rucker as administrator, and Amanda K. Rucker, as administratrix of the estate of Frank H. Rucker, deceased, as principals, and Jane Williams, Asa Thompson and Dabney C. Garth as sureties. The bond is dated August 31, 1866, is in the usual form, and contains all the conditions required by law.

The amended petition on which the cause was tried recites the guardianship of C. E. Pickett, and alleges substantially, that on the execution of said bond the said Amanda and the said James E. Rucker became administrators of said estate, and took charge thereof; that the said James E. Rucker, as administrator, took charge, possession and control of the whole of said estate; that on or about the 1st day of October, 1868, the said Amanda K. Rucker removed out of the State of Missouri and became a non-resident thereof, and thereby her letters of administration were revoked, and all her powers as administratrix ceased, and the said Jas. E. Rucker became and was the sole administrator of said estate, and had in his hands, possession and control of the whole thereof, and continued to administer the same. The breaches assigned were, that the said Jas. E. Rucker did not faithfully administer said estate according to law and the condition of said bond; that at the February term, 1870, of the County Court of Howard county he made a final settlement of said estate, on which settlement there was found to be in the hands of said Rucker, and due said estate, the sum of $1,373.51, which sum was by the said County Court ordered to be distributed, and that said Jas. E. Rucker had failed and neglected so to do, and had converted the same to his own use; that the said John F. and George Rucker were the only children and heirs of said Franklin H. Rucker, who died intestate, and that they were entitled to the whole amount found due on said final settlement.

The sureties filed a separate answer, admitting the execution of the bond, and putting in issue the other allegations of the petition. Defendant, Rucker, filed an answer admitting the execution of the bond, the making of the final settlement and the order of distribution, denying all other allegations of the petition, and alleging that immediately after the said final settlement he paid over the amount due on said settlement to Dabney C. Garth, who was duly authorized by Amanda K. Rucker, then guardian of the infant relators, to receive the same; which allegations were denied by the replication of plaintiff.

The action was originally commenced by Amanda K. Rucker, as guardian of the infant relators. During the progress of the cause, she married one England, and the name of C. D. Pickett was substituted as guardian. The cause was tried by the court without the aid of a jury. Plaintiff read in evidence the deposition of Amanda K. England, taken in Texas in 1872, which stated that before her second marriage her name was Amanda K. Rucker; that prior to February 1st. 1868, she lived in Howard county, Missouri, and at or about that date, removed to Ellis county, Texas, where she has ever since resided; that she was the mother of the infant relators, Georgie Rucker and John F. Rucker, who were then aged respectively 11 and 12 years, and were the only children and heirs of Franklin H. Rucker, deceased, her former husband; that James E. Rucker took charge of the whole estate and only paid her the amount due to her as widow, and that the whole of the remainder of the estate due from James E. Rucker was due to her two children; that no part of the amount due to them had ever been paid to her by Dabney C. Garth, or any one else; that said Garth wrote to her about two years before that time, to become guardian of her two children, or have some one else appointed.

Plaintiff then read in evidence the appointment of Amanda K. Rucker, by the District Court of the county of Ellis, and State of Texas, as guardian of the estate of the infant relators, her oath faithfully to discharge her duties as such guardian, and her bond in the sum of $3,000, with two sureties, all dated in December, 1870, together with the certificates of the clerk and judge thereto as required by act of congress in such cases; also the appointment by the same court of C. D. Pickett as guardian of the persons and estate of said infant relators; his oath as such guardian, and his bond in the sum of $2,800, with two sureties, all dated May, 1872, together with the certificate of the clerk and judge of said court according to act of congress in such cases.

Andrew J. Herndon testified that sometime in the fall of 1870, he had a conversation with defendant, Garth, in which Garth asked him the amount due on J. E. Rucker's final settlement, and stated in substance that the heirs lived in Texas; that he would write and have a guardian appointed, and pay the money that he knew he would have to pay as one of the sureties on the bond.

A certified copy of the final settlement was then read in evidence, showing the balance in the hands of Jas. E. Rucker as administrator to be $1,373.51. The certificate of the clerk shows this settlement to have been filed in his office February 10, 1870. The copy of notice of final settlement in usual form, was also read, and the order of the court approving the settlement, and directing the administrator to distribute the balance of the estate in his hands to the distributees of the deceased. Objections were made by the defendants at the proper time, and exceptions saved to the admission in evidence of that portion of the deposition of Amanda England, relating to her removal from the State of Missouri, and her residence in Texas, on the ground that it was irrelevant; also to the transcript and certificates from the State of Texas, showing the appointmeut of Mrs. Rucker as guardian, on the ground that they were irrelevant and constituted no authority to her to receive or to Rucker to pay to her the shares of the relators; also, to the transcript and certificates showing the appointment of Pickett as guardian, on the ground that they were irrelevant and having been made in the State of Texas, did not authorize him as such guardian, to prosecute this suit; also, to the whole of Herndon's testimony, on the ground that it was incompetent and irrelevant; also, to the reading of the copy of the final...