Wooldridge v. Draper

• Decision Date: 31 January 1852
• Citation: 15 Mo. 470
• Parties: WOOLDRIDGE, ADM'R OF MCDONALD, v. DRAPER, ADM'R OF MCDONALD.
• Court: Missouri Supreme Court

15 Mo. 470

WOOLDRIDGE, ADM'R OF MCDONALD,

v.DRAPER, ADM'R OF MCDONALD.

Supreme Court of Missouri.

January Term, 1852.

APPEAL FROM JOHNSON CIRCUIT COURT.

Appellant, administrator of Rachel McDonald, commenced a civil action in the Johnson Circuit Court against Isaac McDonald, since deceased, the object of which was to recover the worth of two negro slaves and their hire from the first of December, 1847. The petition alleges that said decedent, Rachel McDonald, died seized and possessed as of her own property of the said two slaves, and that Isaac McDonald, after the death of said Rachel, converted the said slaves to his own use. McDonald filed an answer to said petition, denying all the material allegations of the petition and claimed said negroes as his own. Before the final trial, in the Johnson Circuit Court, Isaac McDonald departed this life, and the County Court of Johnson county appointed the appellee, Draper, administrator of the estate of Isaac McDonald. Draper took upon himself the burden of administering the estate of said McDonald and was duly made a party to this action, and adopted the answer of McDonald. At the October term of Johnson Circuit Court, this cause came on to be tried and was submitted to a jury. The jury found a verdict for the appellee. The appellant then moved to render judgment, on the verdict of the jury, against him for costs in his representative capacity as administrator, which the court refused to do, and rendered judgment against the appellent de bonis propriis; and thereupon appellant prayed an appeal from said judgment for costs, which was granted, and the cause comes here by appeal. As no motion for a new trial was made, no bill of exceptions filed and no evidence preserved, the only matter on the record, that can be drawn in question in this court, is the propriety of the judgment of the court below, in rendering judgment for costs against the appellant de bonis propriis instead of de bonis testatoris.

HAYDEN, for Appellant, cited: 4 Tenn. R. 280, Cockerill and Wife v. Kynaston; Goldthwayte and Wife v. Petrie, 5 Term R. 235-6; 7 Tenn. R. 358; 11 Johns. 403; Adm'r of Tilton v. Williams, 6 Tenn. R. 654-5-6; Higg's Adm'r v. Marry, 3 Monroe, 17; Holley's Adm'r v. Christopher, 6 Monroe, 410; 1 Mo. R. 490; 8 Mo. R. 38; 4 Cowen, 87; 3 Dana, 157, 158, 287; 18 Wend. 635, 636; 3 Dana, 315; 2 East, 398-9; 2 J. J. Marsh. 501; 2 Bos. & Pull. 255-6; 1 Bos. & Pull. 445-6; Toller's Law of Ex'rs, 349; 4 Term R. 280-1; 5 Wend. 91; 2 Johns. 377; 2 Bac. Abr. 46, 47, 48; 1 Salk. 207-8; 4 Bac. Abr. 100; 7th art. new Code, §§ 5, 12; same Code, art. 19, § 18.

HICKS, for Respondent, cited: Section 6, art. 1, Rev. Stat. of Mo. 1845, p. 224, title Costs; 16 Mass. R. 530; Brooks v. Stephens, 2 Pick. 68; Healy v. Root, 11 Pick. 389; Ketchum v. Ketchum, 4 Cowen, 87; Pugton v. McKinney, 3 Dana, 314; 1 J. J. Marsh. 499; 2 J. J. Marsh. 396; 3 Mon. 17; 5 Term R. 129.

RYLAND, J.

The question as to the liability of the administrator, Wooldridge, for the costs of the suit below, is the only one for the consideration of this court. The general rule of law upon this subject is, that where the cause of action accrued to the testator or intestate in his life-time, there the executor or administrator suing and failing to recover, is not liable for cost de bonis propriis; the judgment for costs will be de bonis testatoris. In suits brought by an executor or administrator upon contracts made with the testator or intestate in his life-time, the same rule prevails.

But where the cause of action accrues to the administrator or to the executor and he sues and fails to recover, he shall pay costs himself. The powers and duties and rights of an administrator or executor relate back to the death of the intestate or testator. All causes of action accruing after the death and before letters testamentary or of administration have been taken out, are nevertheless causes of action accruing to the executor or administrator; and in such, if he fail to obtain judgment, the defendant is entitled to judgment for costs against him in his personal character.

In the case of Goldthwayte v. Petrie, 5 Term R. 235, Lord Kenyon, C. J., delivered the opinion of the court after stating the case: “In general, it is an established rule that where an action is brought by an executor, as executor, for transactions arising in life-time of the testator, he is not liable to pay costs though he fail in the action But in this case, it was not necessary to name the wife as executrix; she might have brought the action in her own right, for it is stated in both counts that the money was received and the promises made by the defendant after the testator's death. We have looked into the authorities, which we find have settled this point and which decide that the plaintiffs in this case are liable to pay costs.” In the case of Tattersall v. Groote, 2 Bos. & Pull. 255, Lord Eldon, C. J., said: “After looking into all the cases, we are of opinion that if the cause of action arose in the time of the administratrix, and if it was not absolutely necessary for her to sue in her character of administratrix, she will be liable for costs. Some cases are to be found in which the simple fact that the cause of action has arisen subsequent to the death of the testator or intestate, has been held sufficient to subject the executor or administrator to costs. But on a review of the cases, we think that the sound doctrine to be collected from them is, that if the executor or administrator must sue as such on the contract made with the testator or intestate, he is not liable to the payment of costs, though the cause of action arose after the death of the testator or intestate.” In Bigland v. Robinson, 3 Salk. 105, it is laid down that wherever an executor or administrator must sue as such, as for instance, where he brings debt on bond due to his testator, ...