State v. Jones
Decision Date | 26 November 1895 |
Citation | 33 S.W. 23,131 Mo. 194 |
Parties | STATE ex rel. JONES v. JONES et al. |
Court | Missouri Supreme Court |
Appeal from circuit court, Warren county; W. W. Edwards, Judge.
Action by the state, on the relation of P. H. Jones, against Joseph L. Jones and others. From a judgment for defendants, plaintiff appealed to the court of appeals, where judgment was reversed, and the case is now certified to the supreme court. Court of appeals ordered to affirm judgment of trial court.
Knapp & Harris, for appellant. Johnson, Smith & Drunert, for respondents.
This is an action upon the official bond of J. L. Jones, as executor of Julia A. Dearing, deceased, and his sureties therein, for $397.46, the alleged distributive share of the relator, P. H. Jones, in the estate, as legatee under the will of said deceased, as found on final settlement of said executor to be due and owing to relator, and ordered by the probate judge to be paid him. The petition is in the usual form, charging the execution and delivery of the bond; its condition; the executorship of defendant, and that by the will P. H. Jones, the plaintiff, was entitled to one-fifteenth of the estate of Julia A. Dearing, deceased; the final settlement of defendant, and the order of the probate court to pay relator $397.47, as his distributive share; and prays for judgment of the penalty of the bond, and execution for the sum of $397.47, with interest. The answer was that the relator had, prior to the settlement of the executor and the order of distribution by the probate court, sold his interest in said estate to Juliet A. Jones, and had, for value received, in writing duly executed, assigned and transferred through her agent, J. L. Jones, his interest in said estate to said Juliet A. Jones, and that the executor, having due notice thereof, paid the sum of $397.46 so found as the interest of said relator in said estate to Juliet A. Jones, and took her receipt therefor, together with the other legatees and distributees of said estate, and deposited the same with the papers of said estate, with the filing of the probate court duly indorsed thereon, and that, having paid same to relator's assignee, nothing is now due him from said estate. Relator then filed his reply, admitting Jury being waived, the case was tried by the court, resulting in a finding and judgment for defendant. There was but little conflict in the testimony at the trial of the case, and we have given the statement of the facts, so far as they are not admitted in the pleadings, as same is found in the opinion of the St. Louis court of appeals when case was in that court for determination.
Relator, on the day and place therein named, executed this assignment: Thereafter the foregoing assignment was indorsed as follows: And also, to wit: The assignment of relator was made to the executor after some correspondence between them. The letters were not produced at the trial. Relator, in substance, testified that he was notified that he was one of the fifteen legatees under the will of Julia A. Dearing; that the executor, J. L. Jones, wrote to relator that the estate in his hands consisted of a note for $5,000, with interest, which would not be due until 1890, and a few personal effects, of small value, and inclosing an advertisement of sale of the latter; that relator thereupon offered to sell his share in the estate to the executor for $275; that the executor replied, "There were so many bills being probated against the estate, that, if any of the heirs wanted a settlement immediately, he would have to put up the $5,000 note at auction, and sell it to the highest bidder, and, not knowing what it would bring, he would risk $200 for my interest." Relator states that, believing these statements, he agreed to take $200 for his share, and influenced his sisters to do the same; that the executor sent his private check for $200, less discount, on a Missouri bank, to relator; that at the time he did not know the executor was one of the makers of the note, but was under the impression that the executor's father was a maker, who then was dead and his estate unsettled; nor did he know what interest was due on the note, or how old it was; that he would not have sold if he had known he could have gotten the cash in full for his interest in the note; that he sold because the executor had stated that "he would have to sell the note, if any of the heirs wanted settlement before it became due, and did not know what it would bring." The executor testified that he wrote relator "there was not money enough on hand to pay the bills"; that he did not write that, "so many bills were coming in, that there would not be enough to pay them, unless the note was sold"; that he mailed a copy of the inventory to all the nonresident heirs, and gave them all the information in his possession as to the condition and value of the estate; that relator wrote back a proposition to sell; that he did not sell the note, because a majority of the heirs objected; that he took the assignment in his own name because he was doing all his mother's business (the transferee), and often made contracts for her in his name; he asked his attorney to draw up the form of the assignment; did not instruct him to make it out in witness' name; supposed he did so because he had been in the habit of drawing other contracts in witness' name; that he submitted relator's proposition to sell to his mother, who, after consultation, decided to accept it, and give witness the money;...
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