State v. Morrison

• Decision Date: 20 June 1912
• Parties: STATE ex rel. WELCH et al. v. MORRISON et al.
• Court: Missouri Supreme Court

148 S.W. 907

STATE ex rel. WELCH et al. v. MORRISON et al.

Supreme Court of Missouri, Division No. 2.

June 20, 1912.

1. EXECUTORS AND ADMINISTRATORS (§ 528) —INDEBTEDNESS TO ESTATE—LIABILITY OF BONDSMEN.

Where executors were solvent when they took charge, thereafter their debts to the estate were assets in their hands as provided by

Rev. St. 1909, § 108, for which their bondsmen were liable on their joint bond.

2. EXECUTORS AND ADMINISTRATORS (§ 537) —ADMINISTRATOR DE BONIS NON—ACTION ON BOND OF PREDECESSOR.

An administrator de bonis non may sue on the bond of his predecessor for assets in his hands for which he has failed to account.

3. EXECUTORS AND ADMINISTRATORS (§ 537)— ADMINISTRATOR DE BONIS NON—ACTION ON BOND OF PREDECESSOR—SETTLEMENT.

An administrator de bonis non may sue on the bond of his predecessor, either by action in the circuit court or by summary proceedings in the probate court, without reference to whether his displaced predecessor has made a settlement showing a balance in his hands.

4. EXECUTORS AND ADMINISTRATORS (§ 26)— BONDS — EXECUTION — SIGNATURE BEFORE PROBATE JUDGE.

Rev. St. 1909, § 29, providing that an executor's bond shall be signed in the presence of the court, judge, or clerk, or acknowledged before some officer, etc., though mandatory in form, is directory in fact, and hence, after an executor has mismanaged an estate, it was no defense to his bondsmen that the bond was not in fact executed before the probate judge.

5. EXECUTORS AND ADMINISTRATORS (§ 537) —ACTION ON BOND—LIMITATIONS.

An action on a bond of executors, brought by an administrator de bonis non, is subject to the limitation of seven years specially prescribed for such cases by Rev. St. 1909, § 63, and not to the two-year limitation prescribed by section 191 for the presentation of demands against an estate.

6. EXECUTORS AND ADMINISTRATORS (§ 537)— ACTION ON BOND—ACCRUAL.

A right of action on the bond of former executors in favor of an administrator de bonis non accrued on the revocation of the prior executors' letters.

7. EXECUTORS AND ADMINISTRATORS (§ 537) —ADMINISTRATOR'S BOND—DEFENSES.

In an action on the bond of executors, an averment that the name of a surety was signed after that of defendant without his knowledge, and that the same was forged, was insufficient, in the absence of an allegation that such name was signed after the delivery of the bond, since without such allegation the averment did not negative the presumption that the principals had implied authority to secure other sureties before delivery.

8. EXECUTORS AND ADMINISTRATORS (§ 537) — BONDS — DEFENSES — SURETY'S NAME — FORGERY.

In an action on the bond of executors, a defense that the name of a surety, whose name was subsequently signed to the bond was a forgery, was insufficient in the absence of an averment that, when defendant signed he did so on agreement, or on anticipation that the subsequent surety was to sign, or that the approving officer was aware of the forgery.

9. EXECUTORS AND ADMINISTRATORS (§ 537) —BONDS—INDEBTEDNESS TO ESTATE—INSOLVENCY —EVIDENCE.

In an action on the bond of executors to recover assets unaccounted for, evidence that the executors were insolvent two and one-half years and more after they took charge of the estate was inadmissible to raise the presumption that they were insolvent when they took charge in order to prevent their indebtedness to testator from constituting assets of the estate.

10. EXECUTORS AND ADMINISTRATORS (§ 537) —DEVASTAVIT—INTEREST.

In an action by an administrator de bonis non on the bond of executors for a devastavit, plaintiff was entitled to recover interest.

11. TRIAL (§ 333) — VERDICT — EXCESSIVENESS.

A verdict for a sum in excess of the amount claimed is excessive.

12. PLEADING (§ 106)—PLEA—OTHER ACTION PENDING.

In an action on the bond of executors, a plea of other action pending which did not aver when such action had been commenced, or that it was between the same parties, but showing that it was not a suit on the bond sued on in the present action, or that any of the parties to that action except the administrator were parties to the pending suit, was insufficient.

13. TRIAL (§ 252)—INSTRUCTIONS — ASSUMED FACTS.

Where an instruction purported to cover the case and authorize a verdict on recited facts, but assumed the existence of the principal fact pleaded, and authorized the jury to return a verdict without finding such fact, and the assumption under the evidence was improper, the instruction was erroneous.

14. TRIAL (§ 251)—INSTRUCTIONS—APPLICABILITY TO PLEADING AND EVIDENCE.

Where plaintiff as administrator de bonis non sued on the bond of former executors to recover the liability of one of them to decedent or to his estate, and did not claim to recover certain land or its proceeds, which land one of the executors had agreed to buy in at a sale for the protection of testator's interest, but which he failed to do, an instruction authorizing a recovery on the theory of a constructive trust

was erroneous as not being consistent with the pleadings and evidence.

15. TRIAL (§ 191) — INSTRUCTIONS—ASSUMED FACTS.

In an action on a bond of executors, it was claimed that the name of E., one of the alleged sureties, had been forged. The court charged that, before the executors could assume their duties, they must execute and deliver a bond with not less than two solvent sureties for the faithful discharge of their duties, which must be executed in the probate court while in session, or before the judge or clerk thereof, or some officer authorized to take acknowledgments of deeds, in which event the fact of such execution in the presence of such officers was required to be certified to the probate court, and that it would be presumed that "the executors and sureties on said bond" discharged their duties, and that the probate court or judge thereof discharged his duty in requiring the bond to be executed, or subscribed by "all of said executors and the sureties thereon" (naming them), either in open court or before the judge personally. Held erroneous as assuming the genuineness of E.'s signature.

Appeal from Circuit Court, Bates County; C. A. Denton, Judge.

Action by the State on the relation of Welch and others against J. R. Morrison and others. Judgment for plaintiffs, and defendants appeal. Judgment reversed and remanded as to defendant Edwards, as to defendant Bennett, as administrator of Mains, affirmed in part, and affirmed on condition in part, and judgment as to defendant Bennett on count 34 of the complaint reversed and remanded.

Silvers & Silvers and M. S. Horn, for appellants. Thos. J. Smith, for respondents.

BLAIR, C.

Letters testamentary on the estate of J. J. Ryan having been granted to Tygard, Clark, and Morrison, and afterward revoked, this action on their bond was begun on the relation of the administratrices d. b. n. c. t. a. Fifteen of the 16 counts of the petition which survived demurrers to the evidence, and the verdict of the jury are founded on the failure of the executors to pay over and account for various sums represented by certain notes executed by Tygard and Clark, or one of them, to J. J. Ryan before his death. The other of the 16 counts had its origin in an agreement of Tygard with Ryan to buy in certain land under a trust deed and thereby protect indebtedness due Ryan and a bank of which Tygard was president, Clark cashier, and Morrison the bookkeeper. The purchase was made, but the agreement was violated. There was evidence pro and con as to the solvency of the executors at the time they took charge of the estate and thereafter, and that question was submitted to the jury. Appellant Edwards and appellant Bennett's intestate, Mains, were sureties on the bond. Several defenses were interposed which will be considered in the course of the opinion.

1. The right of the administratrices de bonis non to sue on the bond to recover for the breaches alleged is challenged but must be sustained. The jury found the executors solvent when they took charge of the estate and thereafter, and that finding is now conclusive. Being solvent, then the indebtedness due from the executors to the estate constituted assets in their hands (section 108, R. S. 1909; McCarty, Adm'r, v. Frazer et al., 62 Mo. 263), for which they were jointly liable, having given a joint bond. Their solvency and the indebtedness of Tygard and Clark being, for present purposes, established by the verdict, and such indebtedness, in consequence, being assets in their hands, there is no good reason for distinguishing between such assets and any others which came into their possession. The liability of the surety is the same as that of the principal. Bassett v. Deposit Co., 184 Mass., loc. cit. 213, 68 N. E. 205, 100 Am. St. Rep. 552, et seq.

It is settled law in this state that an administrator de bonis non may sue on the bond of his predecessor for assets in his hands for which he has failed to account. State, to use, etc., v. Hunter et al., 15 Mo. 490; State, to use, etc., v. Porter et al., 9 Mo. 356; State, to use, etc., v. Price and Lusk, 17 Mo. 431; State ex rel. v. Dulle et al., 45 Mo. 269; Scott v. Crews, 72 Mo. 261; State, to use, etc., v. Fulton et al., 35 Mo. 323; State, to use, etc., v. Flynn, 48 Mo., loc. cit. 416, 417.

These cases (see Seymour v. Seymour, 67 Mo., loc. cit. 305, 306) also settle the rule that, under our statutes, such action can be maintained whether or not the displaced executor or administrator has made settlement showing a balance in his hands, and also that the action may be instituted in the circuit court or summary proceedings pursued in the probate court. The cases cited to the contrary announce common-law rules, but the common-law system has been superseded by our statutes. Titterington, Administrator, v. Hooker, 58 Mo., loc. cit. 597, 598.

2. The attempt of the testator, by provision in his will, to "overturn the statutes of the...