Taylor v. Hunt

• Decision Date: 31 October 1863
• Citation: 34 Mo. 205
• Parties: A. R. TAYLOR, Respondent, v. ISAAC H. HUNT, EXECUTOR OF J. HUNT, deceased, et al., Appellants.
• Court: Missouri Supreme Court

34 Mo. 205

A. R. TAYLOR, Respondent,

v.ISAAC H. HUNT, EXECUTOR OF J. HUNT, deceased, et al., Appellants.

Supreme Court of Missouri.

October Term, 1863.

Appeal from Jefferson Circuit Court.

A. R. Taylor obtained an allowance in the Jefferson County Court against the estate of James Hunt, deceased, in the 7th class, on the 2d day of April, 1861, for $116.48, and afterwards, on the 10th day of October, 1861, obtained an order in the county as follows:

“A. R. Taylor, plaintiff, v. Isaac Hunt, executor of estate of James Hunt, defendant. On motion to pay over.--Now at this day come said plaintiff by his attorney and presents his motion requiring the executor of said estate to pay over to the said plaintiff the sum of one hundred and sixteen dollars and forty-eight cents, the amount of his allowance against said estate, in the 7th class; which motion being heard and fully understood by the court, it is considered by the court that said motion be sustained.” Upon this order the plaintiff Taylor had an execution issued which was returned in part satisfied, and no further goods found whereon to make the balance. On the 10th day of April, 1862, a scire facias was issued against the securities of Hunt, upon the hearing of which judgment was rendered by the court against them, and on appeal in the Circuit Court judgment again went against them. On the trial in both the inferior courts, Hunt's securities offered to prove by Hunt's settlements, that, at the time the order to pay over was made, there were no assets in his hands as executor of said deceased; which the court refused to let them do, but held that the order to pay over was conclusive upon the securities.

J. L. Thomas, for appellant.

I. The order of the County Court was not conclusive upon the securities of Hunt, and they should have been permitted to show that at the time the order was made. Hunt had neither money nor effects belonging to the estate of James Hunt in his hands sufficient to pay appellee's allowance, or any part of it. (12 Mo. 356.)

II. The case relied on by appellee, reported in 27 Mo. 340, is not a case similar to this. The order of the County Court in that case found that there was so much due from the administrator to the distributees; in this case the court ordered the payment of a demand which had already been allowed. The main issue in the case in the 27 Mo., before the County Court, was whether there was anything due from the administrator to the distributees. The final order of the court in such a case, appealed from, will bind the securities; so will the allowance in this case be conclusive upon the securities as to the amount which the estate of Joseph Hunt owes appellee. The securities cannot now say that the allowance in Taylor's favor was improper or unjust, but they certainly can allege and prove that their principal had no funds on hand with which to pay it.

III. The case in the 12 Mo. 356, is identical with the present, and it was made under a statute exactly similar to the one now in force. (Compare § 11, R. C. 1845, p. 98, and § 11, R. C. 1855, p. 161.)

IV. The principal, Isaac Hunt, has been guilty of no breach of his bond, but has fully and faithfully administered the estate confided to his care.

V. The order of the County Court is void for uncertainty in not finding facts sufficient upon which to base an order. (§ 11, R. C. 1855, p. 161.)

A. Green, for respondent.

I. The court below committed no error in rejecting the final settlement of the executor offered in evidence by the defendants. It was not competent to go behind the judgment of the County Court to show such settlement. The order of said court to pay plaintiff's demand is conclusive upon the securities. (State to use of Griffith v. Holt, 27 Mo. 340, and authorities there cited.)

II. Such order to pay over is conclusive, unless it be shown that it was obtained by fraud. This was not attempted.

III. The case of Polk v. Farrar (12 Mo. 356), referred to by appellant, is not in point. It was a general order to pay demands of a certain class, and made long before final settlement; whereas in this case the order to pay over was made when the final settlement was made. If the executor was aggrieved, he could have appealed.

IV. Whether the case of Polk v. Farrar (12 Mo. 356) be reconcilable with the case of the State to use of Griffith v. Holt or not, the latter is supported by the weight of authority, and is a case precisely in point with the case here before the court....