State v. Shacklett

• Decision Date: 30 January 1906
• Parties: STATE ex rel. BUBB v. SHACKLETT et al.
• Court: Missouri Court of Appeals

91 S.W. 956

115 Mo. App. 715

STATE ex rel. BUBB v. SHACKLETT et al.

St. Louis Court of Appeals. Missouri.

January 30, 1906.

1. APPEAL—DECLARATIONS OF LAW—FAILURE TO REQUEST IN TRIAL COURT—EFFECT.

Where declarations of law are not requested in the court below, it devolves on the appellate court to determine whether, from all the evidence, judgment was properly rendered.

2. PARTNERSHIP — DEATH OF PARTNER—SURVIVING PARTNER—BOND—PAYMENT OF UNALLOWED DEMANDS.

Under the statute allowing the surviving member of a partnership to pay all demands against the firm without requiring the same to be exhibited to the probate court for allowance, only when he knows the partnership assets will suffice to discharge all its debts, the payment by a surviving partner of unallowed demands where there is a deficiency of assets to satisfy all creditors, constitutes a breach of his bond.

3. SAME—DEFICIENCY OF ASSETS.

In an action on the bond of a surviving partner administering the partnership estate, the petition averred that such administrator, after wrongfully paying unallowed debts, had $800 left in his hands and alleged an indebtedness to relator of $2,000. There was evidence that defendant's successor, as administrator de bonis non, had in his hands the sum of $900 and was entitled to collect other assets alleged to amount to $1,400 or more. Held not to show conclusively that there would be a deficiency of assets, authorizing a recovery on the bond; it appearing that all other claims against the estate were paid in full.

4. JUDGMENT — MATTERS INCLUDED — ORAL EVIDENCE.

Where, in an action on the bond of a surviving partner administering the partnership estate, relator alleged that defendant obligor had paid in full certain demands against the firm without exhibiting the same to the probate court for allowance, when there was a deficiency of assets to pay unallowed demands, and the pleadings showed that the matter of allowance against defendant on account of his having paid claims in full instead of pro rata was presented for adjudication, it was to be taken as embraced in the judgment on exceptions to defendant's final settlement, despite oral proofs that the referee to whom the exceptions were referred made no allowance on that account.

5. PARTNERSHIP—SURVIVING PARTNER AS ADMINISTRATOR — EFFECT OF FINAL SETTLEMENT.

In a contest over the final settlement of a surviving partner administering the partnership estate, whose letters were revoked, the administrator de bonis non represents the heirs and creditors of the estate and such final settlement has the effect of a final judgment, which, until impeached in equity, is a complete defense to an action on such surviving partner's bond as administrator.

Appeal from Hannibal Court of Common Pleas; David H. Eby, Judge.

Action by the state, on the relation of Annie Bubb, against Benjamin W. Shacklett and others. Judgment for defendants, and relator appeals. Affirmed.

Chas. Hiller and Smoot, Boyd & Smoot, for appellant. Jno. M. Jayne, for respondents.

GOODE, J.

This is an action on the bond of B. W. Shacklett, as surviving partner administering the estate of the firm of Hays & Shacklett. Said firm was organized March 2, 1892, to carry on a mercantile business in the town of Gorin in Scotland county. Hays died September 21, 1893 and Shacklett proceeded to wind up the firm's affairs. On September 27, 1893, he gave the statutory bond as surviving partner in the sum of $14,000. The present action is on that bond and the breach assigned is that Shacklett paid out of the assets of the estate claims amounting to $13,000, or more, thereby exhausting all the assets except about $800 without paying anything on relator's demand, which had been duly allowed by the probate court; that none of the demands paid by Shacklett had been allowed, and the payments were all made without an order of the court. The demand of the relator consisted of two promissory notes for $1,000 each; one dated March 2, 1892, due one day after date, payable to the order of Annie M. Hays and one dated January 21, 1893, and in other respects like the first one. Both instruments were signed Hays & Shacklett and on their face were firm obligations. The payee, Annie M. Hays, is a sister of James G. Hays, the deceased member of the firm of Hays & Schacklett. She subsequently married a man named Bubb, and hence, appears under the latter name in this action. It is conceded in the brief for the relator that Shacklett duly inventoried the assets of the firm and paid debts it owed in full "about up to the assets." It is conceded by the defendant that the debts thus paid had not been allowed by the probate court and were paid by the surviving partner on his own judgment. Several defenses were interposed. One was that the partnership estate is still unsettled and it is not shown that the remaining assets will be insufficient to discharge relator's demand. The second defense was that her demand was barred by the special limitation statute of one year when it was allowed;...