Stong v. Wilkson

• Decision Date: 31 March 1851
• Citation: 14 Mo. 116
• Parties: SOLOMON B. STONG v. WILKSON, BATES AND FIGHT.
• Court: Missouri Supreme Court

14 Mo. 116

SOLOMON B. STONG

v.WILKSON, BATES AND FIGHT.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM JEFFERSON CIRCUIT COURT.

BIRCH, J.

David Stong died in 1835, leaving Anthony Wilkson the executor of his will and the guardian of his children. In October of that year, he was qualified as executor, but never as guardian. He continued in the executorship until the fall of 1844, when he was superseded by Skeil, who was also appointed guardian of the children then living. Wilkson made settlements annually, up to and including the April term of the court in 1842, at which time a balance was found against him in favor of the estate, amounting $2,364 94. At this settlement, although he had drawn the estate notes payable to him, with interest at the rate of ten per cent., the court seem to have charged him with but six, upon the annual balances which were found to have been in his hands. As this settlement, however, was neither appealed from, nor now impeached for any fraud, it may perhaps be found allowable and proper to permit it to stand as the basis of such subsequent calculations as their review may devolve upon us. To do so, however, it need scarcely be more specifically suggested, will be eminently liberal to the defendants, at the risk of at least possible injustice to the already long delayed and long wronged plaintiffs.

At the August term succeeding this settlement, the administration was allowed as credits for “boarding, clothing and washing,” for the children the aggregate sum of $807 66, and the additional sum of $40, for hiring out the slaves for the seven preceding years. In June, 1840, Felix G. Hill was appointed guardian of the heirs, and continued so until his death, when Skeil was appointed as already stated. At the April term of the County Court in 1841, Wilkson was ordered to pay to Hill, for the use of each of the four heirs, $300; and at the August term in 1842, he was in like manner ordered to pay $50 more to each heir, making an aggregate of $1,400. Neither of these orders having been complied with, a suit was commenced in the Jefferson Circuit Court in November, 1842, and a judgment obtained against the executor and his securities in May, 1847, under an agreement which recited that as Wilkson had never finally settled up his executorship, he might establish such further credits as he was entitled to before the County Court, and that whatever balance was thereby ascertained in his favor, should be available to him upon the judgment which might go in the Circuit Court. It is set out in the record accordingly, that at the September term of the County Court in 1847, a settlement was made, which being impeached for fraud in the bill which was subsequently brought to set it aside, and which is now before us on appeal, it will best promote a ready and correct understanding of the case throughout to here copy at large.^(a) It is entitled a “final settlement,” and is as follows:

A. Wilkson, adm'r, in account with Solomon [David] Stong's estate.

1842.

DR.

CR.

April 27, To balance on annual settlement

$2,363 94

Aug. 3, By amount allowances this term of court

$847 66

Aug. 3, Interest on same to this date

254 00

Aug. 3, Amount notes returned to Skeil, adm'r

712 32

Received by Skeil of McMullen

7 40

Received by Skeil of Pully & Baker

23 33

Received by Skeil of Perkins & Anderson

16 10

Paid Dr. S. Skeil

6 50

Paid Nancy Silvers

3 50

Paid Mr. E. F. Lannier

8 00

Paid Mrs. Vineyard

5 00

Paid Collection

7 75

Paid Costs

1 50

Paid do

1 25

Paid Dr. McGready

20 00

Paid Costs

2 00

Educating, board, clothing, &c., of S. B. Stong, from Aug. 3, 1842, to 1846

200 00

Board and funeral expenses, P. B. Stong

40 00

Education of Susan Stong

57 50

Education of Mary Stong

67 50

Education of A. Stong

93 75

To amount note Cotesworth & Tucker not collected

149 00

Error in Jane Stong's account

10 00

Amount note given T. H. Richardson

28 85

Balance

176 73

$2,551 79

$2,551 79

1847.

September term, balance due the estate

$176 73

As charged in the brief, it is apparent from the foregoing record of his final settlement, that the executor not only failed to state any interest account between himself and the estate, but also neglected to charge himself with either principal or interest accruing from rent of farms and the hire of slaves during the years 1842-3-4--the principal alone amounting to the aggregate sum of $820. The presumption of fraud legally attaching to such an omission as the latter (passing by the items of interest in that connection), is too flagrant to be dispelled by the pretense in the answer, that in the fall of the latter year he handed over to his successor in the administration, certain notes due to the estate, a portion of which only is found upon examination, were taken during the three years in question, and a portion previously, and the aggregate principal of all reaching but the sum of $519 50; whereas he actually procured a credit on this score for $712 32! Aware of the loose and unmethodical manner in which the best intentional persons sometimes conduct such business as it becomes our duty thus to review, we have hypothetically given to the executor the benefit of every imaginable calculation of which the case seemed susceptible, in the hope of being able to excuse and thus to exonerate him from the effects of an apparently fraudulent neglect of the duties he had assumed; but as without a total disregard at once of figures, of facts, and of law, the attempt seems wholly impracticable, we are impelled to the conclusion that the chancery jurisdiction to which the new administrator and the heirs were in a measure forced to resort, should not have been denied them (as it was) by the dismissal of their bill.

The settlement, therefore, which we have copied, and upon which doubtless the defendant and his counsel successfully relied as a bar to this proceeding in the court below, must be set aside as having been fraudulent in law, if not fraudulent in design; and the jurisdiction of the entire case having thus attached to, and devolved upon this court, it must of course proceed according to the best lights evolved by the record, to ascertain as nearly as may be, the equitable state of the account between the parties, and render a decree accordingly.

It may be sufficient to premise, before reciting the substance of the answer, and the testimony of the defendant as to the allowances which he now claims, over and above those included in his alleged final settlement, that as the counsel of neither party seem to have bestowed any attention upon the point which respects and affirms the liability of the present securities, who (it cannot be legally doubted) took the place of the original ones in 1839, we suppose the untenableness of the adverse position, suggested and assumed in the separate answer of those securities (the new or present ones), was regarded as being too apparent to justify remark or elaboration, and that it may consequently, in like manner, be passed over here. We are impressed, also, that a similar remark, particularly if made in connection with reference to the statutory duties of an administrator, will be sufficient upon the point of the securities' exemption for the misapplication of the proceeds of land or farms.

To the bill of the complainants (who were the administrator and the two surviving heirs), the defendant, amongst other things not necessary to be further noticed, answered that if the settlement of 1847 was again opened, he protested against the original computation of the interest upon the settlement of 1842, on the ground that interest was charged upon the amount found against him, at the first annual settlement, and upon the hires and rent of farms which was omitted to be charged in that settlement,” and insists that the County Court had “no right to charge interest upon the notes uncollected, but only upon the cash in hand.”

It may be as well to state here as elsewhere, that the latter is a mistaken assumption. The notes of an estate uncollected, are drawing interest up to the time they are paid. When they are paid, the money thereby arising is either paid out to creditors or distributees, upon which disbursement counter and equivalent interest commences to run, so that under the proverbial indulgence of the County Courts, as to the fractions or periods of time in which sums may casually lie in the hands of an administrator before it is seasonably convenient for him to see the persons to whom it is to be paid (or sometimes necessarily lie so to abide the event of a pending suit or the like), no loss can thus accrue to him. If the notes are even never paid, and it has not been from his neglect, they are counted to him on his final settlement (principal and interest) as so much money. We have, in short, examined and analyzed the record in respect to the combined complaints thus brought before us, and find nothing of which the defendant can complain respecting the settlement of 1842.

The defendant next alleges that in the settlement of 1847, he was by mistake of the court, allowed but $40, instead of $70, for the hire of slaves for the years from 1835 to 1841, inclusive. We have examined the record transcript of the settlement he filed in August, 1842, to which he has referred in this behalf, and find that he is himself mistaken--that the charge is for $10 a year ($70), but that the allowance for seven years is...