text:
    Stephens, Defendant in Error, v. Hume et al., Plaintiffs in Error.
    1. The first judgment in an action for partition is interlocutory; a writ of error will not lie thereto.
    2. Upon a descent cast no entry or actual possession is necessary in order to entitle a husband to curtesy.

      Error to Moniteau Circuit Court.

    Reuben Hume died December 1st, 1851, seized of certain tracts of land. He left him, surviving, his widow, Elizabeth Hume, and children, of whom Nancy J. Stephens, the wife oí plaintiff, was one, and grand-children. An undivided interest in said tracts of one-seventh vested in said Nancy, the wife of plaintiff. At the death of said Reuben Hume, issue of the marriage of the said Nancy and plaintiff was living. The wife of plaintiff died before the institution of this suit. Plaintiff prays that an apportionment of said tracts be made and that a life interest of one-seventh, which he alleges has vested in him as tenant by the curtesy, may be set apart to him.
    Defendants, the widow and heirs of Reuben Hume, set up in their answer that the said widow has ever since the death of Reuben Hume remained in possession of the tracts of land described in the petition, no dower having been assigned to her.
    The plaintiff demurred to the answer. The demurrer was sustained.

      Gardenhire and Morrow, for plaintiffs in error.
    I. A tenancy by the curtesy can not be supported by a constructive seizin; there must be an actual seizin in the wife during the coverture, the birth of a living child, and the (death of both child')and mother during such seizin. ‘(Mercer v. Lessee, 1 How. 54; 4 Kent, Com. 28; R. C. 1845, p. 439, 421.)

      Stephens & Vest, for defendant in error.
    I. The widow’s quarantine does not affect the inheritance of the heirs or any estate incident to it. In point of tenure the widow holds of the heirs, and until the assignment of dower she has no estate in the lands, being neither joint tenant nor tenant in common with the heirs. (4 Kent Com. 62; McOlanahan v. Porter, 10 Mo. 751; 3 Marsh. 1113.) Descents with us depend, not on actual seizin, but on the statute regulating descents, and after a descent cast no entry or other act is necessary in order to entitle a husband to curte-sy in his wife’s land. (Reaume v. Chambers, 22 Mo. 36 ; Harvey v. Wickham, 23 Mo. 112.)
   Scott, Judge,

delivered the opinion of the court.

This writ of error was prematurely sued out, as there was no final judgment in the cause. This was a proceeding in partition, and in such there are two judgments — the one interlocutory, and the other final. The first is quod partitio fiet inter partes de tenementis, upon which a writ or commission goes, commanding that partition be made; and upon the return of this writ or commission executed, if the proceedings are approved by the court, the second judgment is given quod partitio firma et stabilis in perpetuum teneatur. This is the principal judgment, and before it is given no writ of error does lie. (Gudgell & Austin v. Mead and others, 8 Mo. 55.) This writ must then be dismissed.

In the case of Reaume v. Chambers, 22 Mo. 54, it was held that the actual seizin of the wife was not necessary to entitle the husband to curtesy. (1 Hill, on Real Prop. 76, 77.) The permission given by the statute to the wife to remain in possession of her deceased husband’s mansion house, and tbe messuages or plantation thereto belonging, does not affect the right to curtesy. Such possession is not adverse to the heirs of the husband. Writ dismissed;

Judge Ryland concurring; Judge Leonard absent.


source: Caselaw Access Project

author: Soott, Judge,

license: Public Domain

text:
    Brewer, Defendant in Error, v. Dinwiddie, Plaintiff in Error.
    1. Where a judgment is regularly rendered against a defendant, the court can not at a subsequent term,'there being no irregularity, set the same aside and permit the defendant to file an answer.

      Error to Morgan Circuit Court.

      J. W. Morrow, for plaintiff in error.
    I. The leave to file the answer was tantamount to a set ting aside of the judgment by default. No objection being made as to the time of filing the answer, or the answer itself, it was not competent to the court by a mere exercise of arbitrary power to defeat its own action and the rights of the defendant. To grant a party leave to file an answer within sixty days next succeeding the term at which the grant was given, and then requiring him to show cause why the judgment by default should be set aside at the term succeeding the expiration of the sixty days — the answer in the mean time having been filed without objection — is a mere mockery of the administration of the law. The answer shows a good cause of defence.

      Ross and Edwards, for defendant in error.
    I. The defendant in the court below, Dinwiddie, having suffered judgment to go against him for want of answer, the circuit court did not have authority to set aside that judgment at the succeeding term of the court. The order of the court allowing the defendant to file his answer was void and did not in any manner impair the original judgment, and there was no error in the subsequent action of the court in refusing to set aside the judgment by default. (Weenie v. Morris, 7 Mo. 6 ; Barry v. Johnson & Johnson, 3 id. 263; Le-compte and wife v. Wash, 4 id. 557; Keiby & Porter v. Caldwell, 10 id. 392; Field & Cathcart v. Matson, 8 id. 686.)
   Soott, Judge,

delivered the opinion of the court.

It appears from the record in this case that there was a final judgment therein at the October term. Afterwards, at a subsequent term of the court, a motion was filed to set aside this judgment and give the defendant leave to file his answer, which motion was so far sustained as to permit the defendant to file his answer and show cause at the next term why the judgment should not be final. The answer not having been filed within the time prescribed, by an order of the court at a subsequent term the original judgment was confirmed.

Nothing is better settled than that after the term at which a final judgment is rendered, the court can not interfere with it. (Ashby v. Glasgow, 7 Mo. 320 ; Hill v. City of St. Louis, 20 Mo. 584.) Where there is any irregularity in the proceedings, the court will on motion at a subsequent term — the irregularity being shown to its satisfaction — set the judgment aside, or do whatever the justice of the case may require. But in a proceeding like that under consideration, there is no authority whatever to interfere after the close of the term at which the final judgment was entered.

Judge Ryland concurring,

the judgment will be affirmed ;

Judge Leonard absent.


author: Scott, Judge,

text:
    Nearns, Respondent, v. Harbert, Appellant.
    1. Where an employee is discharged before the term of his employment expires, the contract price of his services will be, prima facie, the measure of the damages received by him from the breach of the contract.
    2. The Supreme Court will not grant new trials on the ground that verdicts are against the weight of evidence.

      Appeal from Putnam Circuit Court.

    The plaintiff sets forth in his petition that defendant on the 2d day of April, 1856, employed plaintiff for the term of twelve months as an engineer to run his steam saw mill for fifty dollars per month, and agreed also to furnish him, plaintiff, with a dwelling house and fuel for the same time, and to pay his wages monthly; that he commenced work of defendant in compliance with said contract on the 27th day of May, 1856, and continued in his employ, faithfully discharging the duties of an engineer, until July 6, 1856, at which time defendant, without provocation or cause, dismissed him from his employment and thereby prevented him from fulfilling his contract. Plaintiff claimed $600 damages.
    Defendant admitted in his answer the employment of plaintiff as alleged in the petition, but alleged that the hiring was induced by representations made by plaintiff that he was a skillful engineer, well acquainted with the managing and conducting of a steam engine; that plaintiff entered upon the execution of his contract, and was incapable of complying with it by reason of his ignorance of the duties of an engineer; therefore plaintiff discharged him.
    The court gave the following instructions asked by plaintiff : “ 1. If the jury believe from the evidence before them that the defendant employed the plaintiff as an engineer for the term of twelve months, and that defendant discharged plaintiff from his service before the expiration of the twelve months, they must find for the plaintiff the price agréed on for a year’s service, unless they also believe that plaintiff was not qualified to perform the services he agreed to perform, or that plaintiff failed or neglected to perform them. 2. It is admitted by the pleadings in this case that defendant did employ plaintiff for the space of twelve months at the price of fifty dollars a month, and also that defendant discharged plaintiff before the expiration of that time.”
    The following instructions asked by the defendant were given to the jury : “ 1. If the jury believe from the evidence that plaintiff hired himself to defendant as a first class or competent engineer, the defendant had a right to discharge him from his service, and that plaintiff is not entitled to recover in this action. 2. If the defendant hired plaintiff as a first class engineer, and the jury believe from the evidence that plaintiff was not competent to discharge such service as a first class engineer, they must find for defendant. 3. If the jury believe defendant hired plaintiff as a first class engineer, then they must further find that plaintiff was a first class engineer, and that he faithfully discharged his duties as such first class engineer while in defendant’s employ, and that defendant discharged plaintiff from his service.”
    The jury found a verdict for plaintiff and assessed the damages at $600.

      GardenMre, Morrow and Parsons, for appellant.

      Davis, for respondent.
    I. The instructions given for plaintiff below were correct. If the party plaintiff was discharged by his employer before the term of his employment had expired, his contract is prima facie the measure of damages, unless the defendant had alleged or proved some facts in qualification of the rule. (4 Mo. 44; 15 Mo. 181.)
   Scott, Judge,

delivered the opinion of the court.

All the instructions asked by the defendant were given by the court. There was nothing objectionable in the instructions asked by the plaintiff and given by the court. The measure of damages stated in them for the violation of the contract mentioned in the petition was the correct one. In the case of Pond v. Wyman, 15 Mo. 183, the rule is laid down that the refusal of the defendant to permit the plaintiff to perform his contract is equivalent to a performance' for the purpose of maintaining an action upon the contract, and the contract price of the services will be the measure of the recovery of the plaintiff unless the defendant by evidence shows that the damages actually sustained are less than the price agreed upon. So, on the other band, if one is employed by the year at fixed wages, he can not recover any thing for his services if he quits without cause before the expiration of the year. (Schnerr v. Lemp, 19 Mo. 40.) The defendant offered no evidence showing that the plaintiff was entitled to less damages than the measure prima facie fixed by law.

When there is .evidence in favor of and against the existence of a fact in issue, the circuit court is the proper tribunal to determine whether the verdict of the jury should stand or not. When that court, which has heard the evidence and seen the demeanor of the witnesses whilst testifying, refuses to disturb the verdict, there is no principle on which this court can grant a new trial on the ground that such verdict is against the weight of evidence. This is now well settled.

Judge Ryland concurring,

the judgment will be affirmed;

Judge Leonard absent.


text:
    The State, Respondent, v. Berry, et al., Appellants.
    1. The provision contained in section 11 of article 2 of the act concerning costs, (R. C. 1855, p. 451,) that if the jury fail to declare, in the case of the acquittal of a person indicted, by whom the costs shall he paid — the prosecutor or the county — the court shall render judgment against the prosecutor for costs, is not applicable to cases in which persons had become prosecutors under the revised code of 1846. Where the indictment, with the prosecutor’s name endorsed, was pending previous to the taking effect of the revised code of 1855, the tenth section of article 2 of the act concerning costs in the revised code of 1845 (R. C. 1845, p. 249) is applicable.

      Appeal from Lawrence Circuit Court.

    Hendrick, for appellants.
    The statute regulating costs in this case provides that if the defendants are acquitted the jury shall determine and return with their verdict whether the prosecutor or the county shall pay the costs, and requires the court to render judgment accordingly. (See R. C. 1845, p. 249, section 10.) This provision does not make the prosecutor responsible for costs, in the event of acquittal, absolutely, but only conditionally. In this case the jury failed to determine whether the prosecutor or county should pay the costs. The statute which requires the name of a prosecutor (see R. C. 1845, p. 866, sec. 22) to be endorsed can not be construed to make the prosecutor liable to pay costs absolutely, but only liable to pay it if the jury, after hearing the evidence, shall so determine. If there was probable cause for the prosecution, the prosecutor ought not to pay costs. If there was no probable cause for the prosecution, he ought to pay costs. It was for, that reason the statute gave to the jury discretion to determine whether the prosecutor should pay costs or the county. If the jury fail to determine at all, there is no law authorizing the court to render judgment against the prosecutor, whose liability as prosecutor is only conditional.

      Ewing, (attorney general,) for the State.
   Soott, Judge,

delivered the opinion of the court.

Berry could not be made subject to a law passed subsequently to his undertaking as a prosecutor, which changed that undertaking to his prejudice. At the time the defendant became the prosecutor, the statute provided (R. C. 1845, p. 249, sec. 10,) that, “ if upon the trial of an indictment, whereon the name of a prosecutor is endorsed as such, according to law, the jury shall acquit the defendant, they shall determine and return, together with their verdict, whether the prosecutor or the county shall pay the costs, and the court shall render judgment accordingly.” Afterwards, and before the last trial of the indictment, the foregoing provision was so amended as to provide that if the jury fail to declare by whom the costs shall be paid, the court shall render judgment against the prosecutor for the costs. (R. C. 1855, p. 451, sec. 11.)

It is obvious that the undertaking of the defendant must be controlled by the statute in force when a liability to it was incurred. By that statute, in the event of the contingency which has happened, the prosecutor was not liable for the costs. As he was only liable when the jury who tried the indictment determined that he should pay them, and as the jury failed to declare in their verdict whether he should pay or not, it is obvious that no judgment could be rendered against him for the costs. It was not competent for the legislature to make him liable on the happening of an event not contemplated in his undertaking. The court therefore erred in making the act of 1855 applicable to cases in which persons had become prosecutors under the act of 1845.

Judge Ryland concurring,

the judgment will be reversed;

Judge Leonard absent.


text:
    Doan et al., Defendants in Error, v. Holly et al., Plaintiffs in Error.
    1. Where several causes of action are joined in the same petition they must he separately stated.
    2. It is improper to join in the same petition a cause of action against A. and B. with one against B. alone.

      Error to Andrew Circuit Court.

    This was a suit on a promissory note for 15532.03 executed by defendants, Henry T. Walker and Charles E. Holly, and also to foreclose a mortgage executed in behalf of plaintiffs — the members of the firm of Doan, King & Co., the payees of said note — by Holly, one of the makers. Plaintiffs in their petition set forth substantially the execution of the note in their favor by defendants; that Holly and wife, for the purpose of securing the note, a portion of which was admitted to be paid, mortgaged by deed dated March 18, 1856, certain tracts of land ; that the amount of said note and interest except the credit of $300 is yet due ; and “ they ask judgment for the same with the damages allowed them by law. They further ask that the equity of redemption of defendants in and to the mortgaged premises be forever foreclosed, and that said mortgaged property be sold to satisfy the amount due plaintiffs.”
    The defendants were served with process more than twenty days before the April term, 1857, of the Andrew circuit court. On the third day of the term, no answer having been filed, judgment by default was rendered against defendants. Defendants moved the court to set aside the judgment for the following reasons: 1st, because said judgment being rendered on the third day of the term of the court at which defendants were required to appear and answer said action, and before the end of said term of court the judgment was rendered in violation of law and against the rights of the defendants ; 2d, because said judgment was rendered before the expiration of the time allowed by law to the defendants to file their answer to the action of the plaintiffs; 3d, because the facts stated in the petition praying for the foreclosure of the mortgage mentioned in the petition do not authorize the rendition of a final judgment foreclosing said mortgage until the next term of the court after a rendition of a judgment by default for want of an answer. The court overruled this motion and rendered judgment against defendants for $5566, and ordered that the same be levied of the mortgaged property ; and further ordered, that, in case the mortgaged premises were insufficient to satisfy the debt and costs, then the same should be levied of any other goods and chattels, lands and tenements belonging to the said defendants.
    Loan, for plaintiff in error.
    I. The material question presented by the record in this case is involved in the construction of sections 24, 25 and .26 of article 6 of the code of practice. These sections authorize a judgment at the first term in suits only which are founded solely on a bond, bill or note for the direct payment of money or property. But the petition in this case also asks for the foreclosure of the mortgage. The foreclosure of the mortgage is a matter of substance. (McNair v. Mullanphy’s Executor, 8 Mo. 188.) This case seems to be analogous to the case of Guste v. Pettus, 6 Mo. 497 ; and the rule of construction adopted in that case will exclude this case from the operation of the 24th, 25th and 26th sections aforesaid.

      A. H. Vbries, for defendant in error.
    I. The only question presented by the record in this case is the ruling of the circuit court in rendering final judgment at its first term. That such judgment is right, see 2 R. 0. 1855, tit. Practice in Civil Gases, secs. 24, 25 & 26, p. 1235. The suit really is founded upon the note of defendants, and the mortgage is only an incident thereto — a security for the debt. The mortgage is in contemplation of law a bond for the direct payment of money, and as such stands for trial at the present term. The answer must be filed within the first two days of the term.
   Scott, Judge,

delivered the opinion of the court.

It would always be well if a party before he commences his suit would determine in his own mind what he is suing for. The neglect of this precaution has involved this proceeding in great irregularity. Was this intended as a suit on the note, or as a proceeding to foreclose a mortgage given to secure the payment of the note, or was it thought' that it would answer for both of these purposes ? If the established construction of the present practice act, which requires that when several causes of action are joined in the same petition, they must be stated in several counts and not all blended together in one count, had not been disregarded, the irregularity of this proceeding would have been glaring. Here are two causes of action united in the same petition. One of these causes of action is against one party, and the other is against the same party and a third person.

Notwithstanding the great liberality of the present practice act in relation to the joinder of actions, it is conceived that there is nothing contained in it which gives the slightest sanction to the joining of actions in which the defendants are not the same, not in part but in the whole. The defendant Walker was no party to the mortgage; why then was he brought into court to contest the proceedings under it ? Was he to be subject to the expense of an action in which he had no concern ? Thousands of dollars might hare been spent in this litigation, and if such a course is tolerated as has been adopted in this instance, he would be liable for them. There is but one judgment here and that against both defendants. Being against both defendants, it must be founded on the note, as that is the only cause of action which would warrant a judgment against both of them. Where then is the judgment or authority that will confer a right to sell the mortgaged property ? There was no use in joining an ordinary action on the note with a petition for the foreclosure of the mortgage. Will not the proceedings on the mortgage answer all the ends of both ? If there is service of the process the statute authorizes a general judgment. This, though only irregular and leading to unnecessary length of proceeding, would not constitute a fatal error when the parties to both causes of action are the same; but it is quite otherwise when the defendants are not all the same, and when there is but one judgment against all of them, as in the present case. The judgment will be reversed, that the parties may amend so as to show for which cause of action they are suing, as both can not be-united in one suit. Reversed and remanded;

Judge Ryland concurring; Judge Leonard absent.


text:
    Morin, Respondent, v. Martin’s Administrator, Appellant.
    1. Where one of two partners pays to a creditor of the firm one-half the debt due from the partnership, the partner so paying will not be entitled to recover of the other partner the sum so paid unless it should appear, upon a settlement of the affairs of the partnership, that such sum is due to him from the partnership.

      Appeal from Platte Circuit Court.

    Plaintiff, Morin, presented to the probate court of Platte county for allowance a demand against the estate of James B. Martin., deceased, of one-half of $3400, with interest from July 1, 1849, to July 16, 1855, deducting certain items allowed as credits amounting to $256.50. The claim was allowed in the probate court and an appeal was taken to the circuit court. The cause was submitted to the court sitting as a jury and the court finds the facts as follows: “ That in the year 1849, decedent, James B. Martin, and plaintiff owned certain mill property in Platte county, upon which P. B. Martin had a lien for about the sum of $3400; that Morin became interested in the mill by purchase from J. B. Martin, deceased, and was to extinguish this lien; that on or about November, 1849, plaintiff paid or offered to pay to E. B. Martin’s agent the said sum of $3400, which amount by consent of said agent was left in the hands of said plaintiff and J. B. Martin, deceased, with interest at the rate of six per cent, per annum from the first day of June, 1849; that said plaintiff has since paid or caused to be paid to said F. B. Martin about the sum of $1600, and that the above item of $3400 has never been settled between said plaintiff and Martin ; and that the plaintiff is entitled to recover of defendant the one-half of the sum last above named with interest from the 1st day of June, 1849, less the amount of credits upon plaintiff’s account.”
    Judgment was accordingly rendered in favor of'plaintiff for $2041.25. A motion for a review was made and overruled.

      Gardenhire and Morrow, for appellant.
    I. There was an insufficient finding of the facts by the court, and therefore a review of the facts ought to have been had by the court.
    II. The finding of the court was against the law and the facts of the case.
    III. The probate court had no jurisdiction of the case, and consequently the circuit court could have none by appeal.
    IY. The circuit court ought to have reviewed the law and the facts of the case, and granted a new trial, or to have arrested the judgment.

      Y. Spratt’s testimony ought not to have been heard by the court, for the reason that it was hearsay, incompetent, irrelevant and illegal.
    YI. Atchison’s deposition ought not to have been read inasmuch as Atchison himself was present and examined.
    VII. It does not appear from the finding of the court or the evidence in the cause that there ever was a dissolution of the partnership between the plaintiff and appellant’s intestate ; therefore this proceeding should have been according to the rules of practice which govern courts of chancery. (Sess. Acts, 1849, p. 428; Sess. Acts, 1847, sec. 4, p. 32.)

      Napton, for respondent.
    I. The finding of the court, although not embracing all the facts which the evidence discloses, is sufficient to show that the half of $3400, with interest, <fcc., was due to plaintiff.
    II. The partnership, its dissolution and final settlement, as proved by Spratt, had no connection with the indebtedness sued for and established. It appeared that Morin and Martin paid off their respective shares of the $3400 mortgage— Morin, through the witness Almond, and Martin, through Paxton ; that the partnership was dissolved and settled, no matter how, and consequently that one-half of the $3400 offered to Atchison and subsequently put into the concern of Martin & Go., at six per cent., was still due to Morin from Martin.
   Soott, Judge,

delivered the opinion of the court.

On whichever side the justice of this case may be when it is understood, it is at least now clear that the facts as found by the court do not warrant the judgment rendered for the plaintiff. He alone, according to the finding, owed the lien of thirty-four hundred dollars. When, then, by arrangement with the agent of F. B. Martin, to whom the sum secured by the lien was due, that sum was deposited with J. B. Martin & Co., Morin, the debtor, was discharged from his individual indebtedness, and became liable for his share of it as a member of the firm of J. B. Martin & Co. Being an equal partner, and having paid his share of the debt only, by what principle is. he authorized to recover, from his partner the amount paid by him ? It is as though Atchison, the agent, had loaned $3400 to the firm of Martin & Co. The firm being composed of two members, if one of them pays his share of the loan, by what right can he claim to recover it from his co-partner, unless on a settlement of the business of the firm it appeared that the amount was due him. The half not paid would be due by James Martin to E. B. Martin, but the evidence was that James Martin paid E. B. Martin his half of the debt of 13400. The claim of Morin is for money paid for James Martin, when the finding shows that the money paid by Morin was due by himself. If it was claimed by Morin that the money was loaned by him to James and Green Martin to pay the debt of $3400 due by them to F. B. Martin, then James and Green Martin would be indebted to Morin in that sum. Such would not be a partnership debt of the firm of Martin & Co., and Morin would be entitled to recover it from the estate of James Martin'. But neither the claim of the plaintiff Morin, nor the finding of the court, presents any such case ; nor can we see how Morin should claim only half of the debt and not the whole of it, unless he had credited Martin for the half proved to have been paid by him — a supposition not warranted by any thing contained in the record, and moreover is inconsistent with the conduct of Morin on the trial, who submitted his case without any evidence of such payment having been made. Besides, such an idea is wholly inconsistent with the written demand of the plaintiff Morin as presented to the court for allowance.

If the claim of Morin is that of a partner against his co-partner, it is obvious that any balance to which he may be entitled, depending on an adjustment of the partnership account, could not be recovered in the form of action he has adopted. It would be impossible to ascertain whether there should be a recovery until an account was taken; an object that could only be obtained by a petition in the nature of a bill in equity seeking an adjustment of the concerns of the partnership. We do not perceive the object of the testimony of the witness Spratt; but it is so loosely reported, without any reference to the dates of the events of which he speaks, that it would make it worse than idle to speculate as to the effect it has on the right of the plaintiff to maintain this or any other action against the estate of J. B. Green. Moreover, as the question is nowhere presented by the record, we do not conceive that there is any propriety in giving our views in relation to it.

We do not find any error in admitting the testimony, as we do not see how the defendant was injured by its introduction.

Judge Ryland concurring,

the judgment will be reversed, and the cause remanded;

Judge Leonard absent.


text:
    McClain, Appellant, v. Weidemeyer, Respondent.
    1. Where a negotiable promissory note is drawn in favor of a married woman, she may, with the assent of her husband, legally transfer the same by an endorsement in her own name.
    2. This assent is sufficiently shown if it appear that the note, so endorsed by her in her own name, was executed in her favor in consideration of the transfer by her to the maker thereof of a bill of exchange transmitted to her by her husband, absent in California.
    3. To constitute a valid transfer by the payee of a negotiable promissory note, it is not necessary that the assignment be by endorsement; a deed of assignment for the benefit of creditors purporting to assign the same is sufficient : such an assignee may maintain an action upon the note in his own name.

      Appeal from St. Clair Circuit Court.

    This was a suit on a negotiable promissory note executed by defendant, Weidemeyer, in favor of one Martha Thompson. The note was endorsed by said Martha to the partnership firm of Corbin & Barnes. Plaintiff claimed title to said note by virtue of an assignment made to him by Corbin & Barnes for tbe benefit of their creditors. The defendant in his answer set up a failure of the consideration of said note; also that there had been no legal transfer of the note to Corbin & Barnes, the said Martha Thompson being a married woman at the time of the alleged endorsement by her in her own name; also that there had been no legal transfer of the note by Corbin & Barnes to plaintiff.
    The cairse was submitted to the court without a jury. David B. Thompson, examined in behalf of plaintiff, testified, that he was the son of Martha Thompson, the payee and endorser of the note sued; that John E. Thompson, his father, and husband of said Martha, was in the state of California ; that he went to California in 1850 and was still there ; that the said note was assigned by Martha Thompson to Corbin & Barnes; that the said note was taken for a bill of exchange sent by John E. Thompson from California to his wife, the said Martha Thompson ; that she sold the bill of exchange to defendant, and took the nóte in controversy in her name.
    Plaintiff also offered in evidence the deed of assignment to himself by Corbin & Barnes, for the benefit of their creditors. This deed of assignment purports to transfer and assign to plaintiff “ all goods, wares, merchairdise, chattels, notes, bills, bonds, judgments, evidences of debt, securities and vouchers for and affecting the payment of money, claims, demands, things in action, and property of every name and nature whatever of and belonging to said firm of Corbin & Barnes.” The note in controversy was mentioned and described in the accompanying schedule. There was no endorsement upon said note by Corbin & Barnes.
    The court refused to receive in evidence the note and deed of assignment. Plaintiff thereupon took a nonsuit with leave to move to set the same aside.

      W. P. Johnson, for appellants.
    I. The note sued on was legally transferred to Corbin & Barnes by Martha Thompson, all the evidence tending to show that the bill of exchange was sent to her husband for the purpose of being converted into money, and the husband having authorized her by liis own act to secure the money on the bill of exchange, there was certainly an implied authority to do any act that might be necessary to realize the money. (17 Mo. 297.)
    II. Plaintiff was the legal owner of the note sued on, and became so by virtue of the deed of assignment from Corbin & Barnes, and was the only person authorized to bring suit upon said note. (Practice Act, 1849, art. 3, secs. 1, 2 and 3; 14 Mo. 428 ; 18 Mo. 164; 18 Mo. 561; 19 Mo. 63; 22 Mo. 347.)

      F. P. Wright, for respondent.
    I. There was- no legal transfer of the note to Corbin & Barnes. Martha Thompson, the payee, was a married woman. The property thereof immediately upon the execution of the note vested in her husband and he became solely entitled to negotiate it. (Story on Prom. Notes, § 124 ; Story on Bills, § 92 ; 19 Mo. 300.) The legal owner, who was the husband, could alone transfer it. (7 Mo. 543.) Mrs. Thompson could only transfer the note as the agent or by the authority and consent of her husband, and this is neither averred in the petition nor does it so appear in the evidence. Story on Bills, § 92.)
    II. There was no transfer of the note by Corbin & Barnes to plaintiff, and the deed of assignment was properly excluded as any evidence of such transfer. The deed of assignment was made in April, 1855. By the statute of 1845, then in force, “ all bonds and promissory notes for money or property shall be assignable by endorsement on such bond or promissory note.” This statute is different from the statute of 1855, which does not expressly require the assignment to be on the bond or note. Even if the court should think that a transfer in writing upon a different instrument would in-west the title in plaintiff, still the deed of assignment was insufficient for this purpose. (Miller v. Paulsel & Newman, 8 Mo. 355.) The law of 1845, respecting bonds and notes, was in force at the time of the execution of the deed of assignment. (Webb & Hepp v. Morgan, McOlnng & Co. 14 Mo. 430.)
   Soott, Judge,

delivered the opinion of the court.

The evidence in the cause was amply sufficient to show the assent of the husband to the act of the wife in assigning the note. In the case of Menkins v. Herenghi, 17 Mo. 297, it was held that the endorsement by a married woman of a bill of exchange payable to her order, in the presence of and with the consent of her husband, will pass the title. The authorities in the case to which reference is made show that the wife with the assent of her husband could legally transfer a note payable to herself by an assignment in her own name.

In the case of Thornton v. Crowther, 24 Mo. 164, the note sued on was with others folded in an envelop, and there was written on it a general assignment of them; the court held that under the practice act of 1849 such assignment was sufficient to enable the assignee to sue in his own name. The law of the case of Miller v. Paulsel & Newman, 8 Mo. 355, is altered by the present practice act.

An order drawn for the whole of a debt is an equitable assignment of it, and lie in whose favor the order is drawn may sue for the debt. (Walker v. Monro, 18 Mo. 564 ; Canefox v. Anderson, 22 Mo. 347.) Judgment reversed, and cause remanded ;

Judge Ryland concurring; Judge Leonard absent.


text:
    Walker’s Administrator, Plaintiff in Error, v. Walker, Defendant in Error.
    1. Equitable relief can not be giren in a suit asserting a legal right and seeking its enforcement.
    2. At law the husband can not make a gift direct to the wife; and though equity, where the intent is clear that she shall enjoy the property granted to her separate use, will in such case interfere and constitute the husband a trustee and compel him to execute the trust, yet the proof of the trust must be clear and unequivocal.

      3. If personal property, other than choses in action, he in such a situation that the husband may, if he will, lawfully take it into his hands at any moment, this is a sufficient reduction into possession, although he should not actually take it into his custody.
    4. Where a husband is in possession of personal property bequeathed to his wife by a former husband, as administrator of such former husband, and he makes a final settlement, and it is ordered by the court that he and his wife retain all the estate of the deceased in their hands : held, that the husband’s possession as administrator ceases, and his possession jure mariti commences, at the date of such order; tins would not however be a reduction into possession by him of a bond or note for the wife’s money taken by him as administrator.

      Error to Cooper Circuit Court.

    This is a suit by the plaintiff, the public administrator of Cooper county, as administrator of the estate of Mary Walter, deceased, against Henry R. Walker, her surviving husband. Plaintiff asserts in his petition that defendant is in possession of sixteen thousand dollars in money, notes and accounts, belonging to his, plaintiff’s intestate, which he refuses to pay or deliver to plaintiff; that he is also in possession of certain slaves, jennies, jacks, horses, and- other personal property, enumerating it, belonging to said estate, which he also refuses to deliver. Plaintiff asked “judgment for the value of said money, notes and accounts, slaves and other property in defendant’s possession belonging to said estate, and to the plaintiff as such administrator, with damages for the wrongful detention thereof.”
    The defendant answered admitting the possession alleged, but asserting absolute title in himself.
    Upon the trial of the cause evidence was adduced showing and tending to show that Mary Walker, plaintiff’s intestate, was at the time of her death the wife of defendant Henry R. Walker; that she intermarried with defendant in the year 1851; that at the time of her marriage with defendant she was the widow of Isaac Maston, deceased, who died in 1850 possessed of a large estate, consisting of lands, slaves, horses, mules, jacks, cattle, &c. ; also notes and bonds for money at interest; that Maston left a will by which, after making several small bequests to Ms relatives, be devised and bequeathed all the residue of his estate, real and personal, to his wife, Mary, absolutely, and appointed her and Anthony S. Walker executrix and executor ; that they took out letters testamentary and took charge of Maston’s estate; that in December, 1851, the defendant Henry R. Walker married said Mary Maston; that in July, 1852, said Henry R. Walker was appointed administrator with the will annexed of the estate of said Maston ; that he administered upon the same, and made a final settlement at the April term, 1854, of the Cooper probate court, when an order was made directing that the residue of the estate be retained by said Walker and wife, she being the residuary legatee, and the defendant was discharged from making further annual settlements. Plaintiff’s intestate died in April, 1856. It appeared in evidence that the personal property belonging to the estate of Maston was assessed for the years 1852, 1853 and 1854, in the name of plaintiff’s intestate, with the assent of defendant; that for the years 1855 and 1856 it was assessed in the name of defendant, while the real estate was assessed throughout all those years in the name of plaintiff’s intestate; that at the date of the marriage of defendant with plaintiff’s intestate, he, defendant, owned a farm in the immediate vicinity of the Maston farm; that after the marriage the defendant resided at the Maston farm; that the negroes of the Maston estate were kept separate from those of defendant’s farm ; that they were worked separately, living upon the respective farms as before the marriage; that Mrs. Walker, plaintiff’s intestate, directed and controlled the affairs of the Maston farm; that the negroes and stock on said farm were familiarly know as hers; that separate accounts were kept of moneys, &c.
    The plaintiff asked the court to instruct the jury as follows : “ 1. If the jury believe from the evidence that at the time of the commencement of this suit the defendant had in his possession money, notes, accounts, slaves and other personal property of the description stated in the petition, belonging to the estate of Mary Walker, deceased, they must find for the plaintiff, and may allow interest on such aggregate value at six per cent, from the commencement of this action. 2. Although the husband by virtue of the marriage is entitled to the personal property of the wife, yet he must reduce it to his possession as husband during the marriage, and if he does not it goes to his wife’s legal representatives. If therefore the jury believe from the evidence that the defendant did not so reduce his wife’s personal property before marriage to his possession during the marriage, but that the wife, from her marriage to her death, had the separate control of it in her own right, independent of her husband, they must find for the plaintiff. '3. Although in the absence of evidence, the possession of personal property by the wife is the possession of the husband, yet if the jury believe from the evidence that Mrs. Walker, from her marriage to her death, had the separate possession and control of the property she had before marriage in her own right, independent of her husband, such possession was not the possession of the husband, and they must, in such case, find for the plaintiff. 4. Even though the defendant had taken possession of the property as Maston’s administrator, yet if he held the possession as administrator merely, and the wife took the separate possession and control of property in her own right, independent of her husband, from the close of the administration until her death, such possession could not .pass the property to the defendant as husband. 5‘. Even though the jury may believe from the evidence that the defendant during the marriage took control of the property his wife had at the marriage, yet, if they further believe from the evidence that he did not so take control of it as husband in his own right, but in right of his wife, recognizing her separate right to and separate control of it, such control by defendant was not such possession as passed the property to him as husband. 6. A gift from husband to the wife of her own property after marriage, if a reasonable provision for her, the husband’s fortune and circumstances considered, and not prejudicial to creditors, accompanied by tbe separate possession, use and control of it by tbe wife, passes tbe title to her as her separate property ; and such a gift need not be expressly proved, but may be implied from the acts and declarations of tbe husband. If therefore the jury believe from the evidence that Mrs. Walker had the possession and control of her own property, and that defendant permitted her so to possess and control it, upon a mutual understanding between them that he was to set up no right to it as husband, and that she was to have it as her own separate property, such control and possession were sufficient to pass the property to the wife as a gift, and the defendant could not in such case resume possession and again divest his wife of her property.” The first of these instructions was given. The court refused the others.
    The court, at the instance of the defendant, gave the following instruction: “ 1. If the jury believe from the evidence that the property, <fcc., in controversy was derived from the estate of Isaac Maston, deceased, as a legacy bequeathed to plaintiff’s intestate, Mary Walker, late Mary Maston ; and if the jury further find that whilst the said Mary was so entitled to said legacy and before tbe close of the administration of Maston’s estate, the defendant intermarried with said Mary, and that afterwards in July, 1852, before the close of the administration, he became administrator de bonis non of said Maston’s estate, and that as such administrator he administered the estate until April, 1854, when he made a final settlement in the probate court of Cooper county, and that on such final settlement being made the court ordered that the said property, &c., be retained by him and his said wife Mary, as legatee as aforesaid, then said legacy and property, &c., aforesaid vested absolutely in the defendant as husband of the said Mary, and the plaintiff is not entitled to recover the same or any part thereof from the defendant, and the jury must find their verdict accordingly.”
    Thereupon the plaintiff took a nonsuit with leave to move to set the same aside.

      Gardenhire, Parsons and Hening, for plaintiff in error.
    I. The question as to whether the defendant had reduced the property in controversy into his possession as husband was a material question in the cause. The second instruction asked by plaintiff should have been given; for unless the husband did reduce the property of the wife to possession during coverture, he acquired no title, and at her death it passed to her heirs. His possession as administrator was not such a possession as gave him the absolute property. (In the matter of the estate of George Singer, 2 Ashm. 462; 1 Aslim. 331; 12 Vesey, 496 ; Elms v. Hughes, 3 Dessaus. Ch. 155.) For the like reason the 3d, 4th and 5th instructions of plaintiff should have been given.
    II. The 6th instruction should have been given; for even though the husband had had the property distributed, yet if he waived his right to the possession and left it undisturbed in his wife, this was impliedly a gift to her, a surrender of his right to the possession; this would be a gift which the husband would not be at liberty to revoke at pleasure. (2 Story, 839; 2 Swans. 108; 17 Mass. 56 ; Joshua Gentry, adm’r, v. John McReynolds, adm’r, 12 Mo. 534.)
    ■ III. The instruction for' the defendant was wrong. The order of the probate court that the husband and wife should retain the property did not per se vest the absolute title to the property in the husband. He was bound to reduce the property to possession as husband. (2 Kent Com. 137.)
    Adams, for defendant in error.
    , I. The marriage of the respondent with the plaintiff’s intestate passed all her personal property in possession to him absolutely, and gave him the right to reduce to possession all her choses in action at any time during the coverture; and by such reduction to possession he became the absolute owner.
    II.’ The respondent being in possession of his wife’s legacy .under Maston’s will as administrator de bonis non of Maston’s estate, held the same as administrator until his final settlement, which occurred in April, 1854. The final settlement closed the administration, and he no longer held the possession as administrator, but as husband of the plaintiff’s intestate ; and that of itself, without any act of the court, would have Tested in him the absolute title. But undoubtedly the order of the probate court haying jurisdiction, made at the time of the final settlement,'and at the end of the administration, directing him to retain the property, &c., in dispute for himself and wife as legatee under Maston’s will, passed such legacy to him absolutely, and is conclusive evidence that he had reduced it to" possession so as to become the absolute owner. 1
    III. The possession of the wife, is the possession of the husband. They are one person in law, and there can be no separate or independent possession on the part of the wife; and the instructions asked by the appellant enunciating a contrary doctrine, ■ even if there had been any evidence to support them, were erroneous and properly refused.
    IY. No question can arise in this case about separate property in the wife. The petition presents no such question. It is not a proceeding against the respondent as trustee for his deceased wife to enforce the execution of a trust, or to compel him to account for and relinquish property held by him as trustee for the separate use of his deceased wife; but it is simply an action in the nature of an action of trover, charging him not as trustee, but as a wrongdoer, as having the possession of property to which he has no title either as trustee or otherwise, and to which the plaintiff, as administrator, is legally entitled ; and the plaintiff must stand or fall by the case as presented by his petition. (Link v. Vaughan, 17 Mo. 585 ; Jones v. Baker, 20 Mo. 87.; Kenedy v. Daniels, 20 Mo. 104; Coran v. Johnson, 20 Mo. 431.)
    Y. But even if this was a proceeding against the respondent as trustee for his deceased wife, in the nature of a bill in equity to compel the execution of a trust, or to compel him to account for and deliver.up the trust property, there is nothing in the evidence to warrant any such proceeding, or that tends in the- slightest degree to establish a separate property or equity in the wife. Every particle of evidence was such as the respondent might have used if he had been plaintiff suing for the property.
    YI. An administrator of a deceased wife can not set up a claim to undisposed of separate property in the husband’s possession. • Where the husband is the trustee and survives his wife, the undisposed of separate property in possession belongs to him at her death jure mariti. The separate property in such case being a mere creature of equity for the benefit of the wife, ceases at her death, and the husband becomes the absolute owner of the property discharged of any trust. (Moloney v. Kenedy, 10 Sim. 255; 1 Amer. Lead. Cas. in Equity, 401; Stewart v. Stewart, 7 Johns. Oh. 245.)
    VII. But if the wife’s administrator could claim undisposed of separate property in the husband’s hands, where such claim is founded upon a supposed gift from the husband to her separate use, it must be established by satisfactory evidence of an act constituting a transfer of the property and sufficient transmutation of possession; and the language creating the gift or trust must show that it was for “ her sole and separate use,” or words to that effect. (Clancy on Rights, 260 ; Walter v. Hudge, 2 Swanst. 97, 112.) A mere delivery to the wife would not be sufficient change of possession. (McOlean v. Long, 5 Yes. 79; 19 Mo. 343.) A parol gift from a husband to a wife of a slave is void. (Woodson v. Pool, 19 Mo. 343.) In this case there is no evidence of any gift whatever, ■much less of a gift to the separate use of the wife. Loose and general declarations (if there had been any such) are not sufficient for the deduction of a trust or to establish a gift. (5 Johns. Ch. 1; Sloan v. Marshall, 2 Wash. C. C. 398.)
   Soott, Judge,

delivered the opinion of the court.

As to that portion of the personal property involved in this controversy, which consists of money, slaves, horses, jacks, jennies, cattle, &c., there is little room- to doubt the right of the defendant, both on the merits and on technical grounds. This is an action to recover damages for taking or withholding personal property. The plaintiff asserts a legal title to the property sued for. The evidencfe of that title is an alleged gift of the husband. Now nothing is clearer at law than that the wife can not be the recipiént "of a gift from the husband so as to vest in her a legal title to the subject matter of the gift. Their unity prevents it. The personal property of the wife at law belonging to the husband', so soon as a gift is made to the wife the gift becomes the property of the husband. (Faulkner v. Faulkner’s Ex’rs. 3 Leigh, 255 ; Clancy on Rights, 251; 1 Bright on Husband and Wife, 29, 33.) Courts, of equity, however, where the intention of the husband is plain that his wife should have to her separate use a portion of his estate, and when the rights of creditors are not in the way, will raise in him a trust when no third person is interposed as trustee, and will compel him, for the benefit of his wife, to execute the trust with which the property may have been clothed. But this trust can not be enforced in an action as setting a legal title to the property designed for the separate use of the wife and claiming damages for its conversion. The gift, or more properly trust, can only be carried into effect through the instrumentality of a petition in the nature of a bill in equity setting forth the facts on which reliance is placed to show that a trust for the separate use of the wife was created, and praying an enforcement of its provisions. But in all such cases, as against the husband, the authorities are united that the evidence of the trust must be clear and unequivocal. (Clancy, 260 ; Walter v. Hudge, 2 Swanston, 92.) As to the evidence produced on the trial in this cause we do not regard it by any means as sufficient to raise in the husband a trust for the benefit of his wife. The kindness and indulgence of the husband to his wife during her life should not be perverted to his prejudice after her death. His conduct in relation to the estate he derived from his wife is not inconsistent with the idea that he regarded himself as the owner of it. Coming into the possession of the property in the way he did, a kind disposition to his wife would naturally lead him to indulge her in the manner she was indulged, when he discovered such was her pleasure. But it would seem that the declarations of the. wife herself in relation to this matter, if we are to credit the evidence of them, would satisfy us that she did not contemplate that her control of the property should extend beyond the period of her life.

As to the point that the property, other than the choses in action, never was reduced into possession during coverture, we are of the opinion that it is unsustained by the law arising from the facts of the case. In contemplation of law property is reduced into possession when it is in such a state that the husband can lawfully take it into his hands, if he will. It is not necessary that he should have actually taken it into his custody. If he has a right to do so at his will, it is enough. When no suit at law or equity is necessary to obtain possession of personal property, and the husband may, if he will, take actual possession of it, but fails or neglects to do so, the property is not the less reduced into his possession.

The objection that the property was not reduced in possession must rest either in the idea that it was in the possession of the wife, or that it was held by the husband as administrator. Both of these grounds are untenable. If the property was in the possession of the wife, then the possession of the wife was the possession of the husband. The facts and the law applicable to them do not warrant the assertion that the property at the death of the wife was held by the husband in the capacity of administrator. It had been in the possession of the husband as administrator His wife was the legatee of it. The county court had authority to order the payment of legacies. An order was made that this legacy be retained by the husband and wife, and a final settlement of the administration was made, and a declaration in writing by the defendant and his wife acknowledging the receipt of the amount ordered to be retained was filed among the papers relating to the administration. If circumstances like these are not sufficient to show that property held by one as administrator ceased to be held as such, and was regarded as property held in his own right, it is not easy to ;see how a change of the capacity in which property may he held by the same individual can be effected. (State, to the use, &c., v. Hearst, adm’r, 12 Mo. 365.)

As to the dioses in action mentioned in the petition, we are not prepared to say that they are the property of the husband. If any of them were payable to the wife of the defendant, or even given for money belonging to the estate of which the wife was legatee, and made payable to the defendant as administrator de bonis non, the order of the probate court directing such bonds and notes to be retained by the defendant and his wife, was not such a reduction into possession by the husband as is required by the law in order to give the legal right to the husband. If they were afterwards paid during the coverture, or. if they were novated by taking a new security in his own name during the wife’s life, the case would be different. (2 Kent, 137 ; Picket v. Everett, 11 Mo. 568.) The cases of Leaky v. Maupin, 10 Mo. 362, and Wood v. Simmons, 20 Mo. 363, show the difference between our law and that of England on this subject. They render it unnecessary at this time to go into an investigation of this question.

As there was some evidence that a bond for the wife’s money was taken by the defendant as administrator de bonis non, and as it did not appear but that such bond was still unpaid, and as the instruction given by the court had the effect to exclude such evidence from the consideration of the jury, the judgment will be reversed in "order that it may be ascertained whether there were any dioses in action to which the wife was entitled and which were not reduced into possession by the husband at the time of her death. Judgment reversed and cause remanded;

Judge Leonard absent.


text:
    Houck and wife, Plaintiffs in Error, v. Camplin et al., Defendants in Error.
    1. By the law of Kentucky in the year 1830 slaves vesting in a wife, whether in remainder or otherwise, although not reduced to possession by the husband, passed to the husband upon her death in case he survived.

      Error to Boone' Circuit Court.

    Young, for plaintiffs in error.

      Adams and Gordon, for defendants in error.
    I. The right of succession to the estate of intestates is governed by the laws of the domicil of the deceased at the time of the death. By the laws of Kentucky, which was the domi-cil of Bostick and his wife at the time of her death in 1830, all her personal property, whether the same had been reduced to possession or consisted of rights in action or interests in remainder in slaves, was vested in him absolutely jure mariti. Laws of foreign countries and other states are questions of fact to be proved and found as other facts; and in this case what the laws of Kentucky were was a question of fact, and as such was properly found as a fact by the court, and that finding was warranted by the evidence and fixes the rights of the parties to this controversy. (Story’s Conflict of Laws, § 403 ; 15 Mo. 133 ; 4 Mo. 446; 7 Mo. 22.) The right to the property in controversy was settled by the judgment and decree of the Fayette circuit court in Kentucky, and that decree vesting the right in Bostwick, under whom the respondents claim, is conclusive between these parties.
   Soott, Judge,

delivered the opinion of the court.

The rights of the parties to this suit accrued under the laws of the state of Kentucky; consequently we must resort to those laws in order to ascertain them. The mother of the complainant, Margaret Houck, had an interest by way of remainder in certain slaves. Pending a suit for their distribu"tion in the court of Kentucky, tlie mother died, leaving her husband as survivor. The plaintiffs assert title through the ■mother; the defendants claim through the father. The court below found that by the law of Kentucky the interest of the wife on her decease passed to her surviving husband. There can be no doubt of the correctness of this finding.

In whatever light this question may be regarded by the laws of this state, in Kentucky it is well settled that if any interest in a chattel vests in a female before or during cover-ture, although a particular estate may exist in it undetermined, so that no possession is acquired by the husband during the life of the wife, the right will belong to the husband in case he survives, and pass to his administrator. (Ewing’s Heirs v. Handley’s Exec’rs, 4 Litt. 348 ; Irvin v. Divine, 7 Mon. 246 ; Baker v. Red, 4 Dana, 163.)

In the case under consideration, the rights vested long before the act of the general assembly of the state of Kentucky of 1845-6, by which the interest of the husband in his wife’s estate was restricted. The judgment is affirmed;

Judge Ryland concurring ; Judge Leonard absent.


text:
    Edwards & Wife, Respondents, v. Welton et al., Appellants.
    1. One of several cestuis que trust can "not single out a portion of the trust property and allege an exclusive right thereto, and assert that right in an action for its possession.
    2. Where trust funds are misapplied, the cestui que trust may follow the property acquired therewith, and assert the trust-as against any one taking with notice.

      Appeal from Clay Circuit Cowt.

    This was a suit instituted by William Edwards and Elizabeth Edwards his wife, against Solomon Welton, Ivy Welton and Elvy Atkinson. Plaintiffs state in their petition in substance that one Unice Harness, then a resident of the state of Virginia, made her last will and testament, which was admitted to probate in the year 1823 ; that in said will there is the following bequest: “ I give to my daughter Elizabeth Welton five hundred dollars, the price of my negro boy Phil, which my son Adam Harness is to have, and pay in two years from my death, and to be laid out in negro girls by my executors for my daughter Elizabeth Welton and her daughters forever that the said sum of $500 never was laid out by the executors in the purchase of the negro girls for the said Elizabeth Welton and her daughters, as directed by the will; .that said sum was paid by the executors to Michael Welton, the husband of Elizabeth, to be by him laid out in the purchase of negro girls for the said Elizabeth and her daughters according to the terms of said will; that said Michael received the said sum under an express agreement with the executors that he would so lay it out; that said Michael did purchase with said $500, or a part of it, a negro girl named ■Tamar, for his wife and daughters; that at the death of said Unice Harness, the said Elizabeth Welton had four daughters, to-ydt: Elizabeth, (wife of William Edwards, and plaintiff in this suit), Ivy Welton, and Elvy Atkinson (who, with Solomon Welton, are defendants in this suit), and Hannah Welton; that said Hannah died about eight, and Elizabeth Welton, the mother, about six years ago ; that at the death of the said Elizabeth Welton, wife of Michael Welton, the said negro slave Tamar, and all her increase, became the sole and absolute property of plaintiffs and the said Elvy Atkinson and Ivy Welton, two of the defendants; that plaintiffs became entitled to one undivided third of said slave Tamar and her increase; that on the 24th day of April, 1842, the said Michael Welton made and entered into an instrument of writing between himself and the. said Hannah Welton, Ivy Welton, Elvy Atkinson (then Elvy Welton) and Solomon Welton, the son of said Michael, and one of the defendants, in which, after reciting the bequest above set forth, and that he had received the said sum of $500, and had appropriated it to his own use in the purchase of slaves and otherwise,- he conveys certain negroes, named Jerry, Eliza, Essex, Ellen, Lewis and Martha, all children of Tamar, absolutely to the said Hannah, Ivy, Elvy and Solomon; that the said Hannah, Ivy, Elvy and Solomon had full notice of the provisions of the will above set forth; that they accepted the conveyance for the purpose of defrauding the plaintiffs out of their legitimate rights under said will; that Michael Welton died in 1855 insolvent; that they, plaintiffs, have never received the said Tamar or any of her children, or any of the money they or any of them sold for; that defendants sold two of said slaves mentioned in the bill of sale above mentioned, to-wit: Essex and Ellen, both children of Tamar, Essex for 1800, Ellen for $210, and appropriated the proceeds; that the remaining slaves — Jerry, Eliza, Lewis and Martha — have been divided between defendants — Jerry, now worth $1200, being received by .the said Solomon, Eliza by Ivy, and Martha by Elvy; that plaintiffs, with Elvy and Ivy, were each entitled to one-tliird of the proceeds of the sale of Essex and Ellen; that plaintiffs have received none of the proceeds; that on the contrary the said Solomon received one-third of said proceeds, to-wit, $170, which rightfully and legally belongs to plaintiffs ; that the said Elvy and Ivy have received each one-third of the remaining negroes after the sale of the said Essex and Ellen; that they each received one-third of said proceeds of the sale of Essex and Ellen; that the negro boy Jerry, who legally and properly belongs to plaintiffs, was received by Solomon Welton, and is still in his possession. Plaintiffs ask judgment against the said Solomon for the sum of $170 and interest, that being the amount received by him from the proceeds of the sale of Ellen and Essex; and a judgment against him, the said Solomon, for the possession and delivery of the said negro slave Jerry, and in default of delivery of said slave Jerry to plaintiffs, a judgment for the sum of $1200, the value of said slave. Plaintiffs also ask judgment for $1500, the alleged value to defendant Solomon of the services of the said slave Jerry.
    At the trial evidence was adduced in support of the allegations of the petition. The instructions given are numerous. It is deemed unnecessary to set them forth. The jury found a verdict for plaintiffs against Solomon Welton, and found for them $1100, the value of the slave Jerry, and $500 for tlie hire of Jerry; amounting in all to $1500. The jury found for defendants Ivy Welton and Elvy Atkinson. Judgment was rendered accordingly.

      Morrow and Gardenhire, for appellants.
    I. Plaintiffs have sued the wrong party. The executors of Harness were the proper parties to be sued. The executors of Harness were guilty of breach of trust, if any one was, and they are undoubtedly liable for that breach, and there is no pretence that they and their securities are insolvent. Even if Harness’ executors were insolvent, it would not make the appellant liable. Although the court may hold that the filing of a motion in arrest supersedes a’ motion for a new trial — which we deny to be the law of the land — it does not affect the question as to who are proper parties to the suit ; if the appellees have a judgment against a party who is not responsible to them, the judgment ought to have been arrested.
    II. The instructions given for plaintiffs are erroneous, and those asked by defendants ought to have been given.
    Hovey, for respondents.
    I. The papers offered in evidence by plaintiffs below were competent, as were the statements of Michael Welton before the making of bill of sale of the slaves. (See 3 Yesey, 696, 707 ; Foster v. Hale, 4 Kent, Com. 305 ; Lewin on Trusts, 30.) The statements and admissions of Michael Welton, offered to be proven by appellants, were incompetent, because they were in no way explanatory of his act in making the deed of gift or sale to defendants.
    II. The instructions as to the adpiissions by defendant Solomon’s answer are warranted by the pleadings.
    III. The general instructions given for the plaintiffs are the law of this case. First — Because a trust was created by the will, and the fund, being money, could not be identified in kind, bnt must be traced to sncli property in the hands of the trustee as answered the description of that in which the trust fund was to be invested. Second — The second and third instructions asked by plaintiffs are well predicated upon the recitals in Michael Welton’s deed to defendants as a trace of the fund, coupled with the will creating the fund. Third — Elizabeth Edwards’ share of the proceeds of that fund is the only matter in controversy, and if he had her share and no more of it, then being hers she is entitled to it and the value of its use. Fourth — The statute of limitation of action does not run against minors nor married women during these disabilities.
    IY. That the instructions asked by defendant Solomon Welton, and refused by the court below, were properly refused. First — Because the court did give other instructions embracing all the points contended for by the defendant below, and even far too liberal towards him. Secondly — No demand was necessary. The recitals in his father’s conveyance under which he submitted to and claimed a share in the division of the slaves, was notice to him of the daughters’ title as against himself. Thirdly — Solomon Welton was presumed to know the recitals in the conveyance under which he held the slave Jerry. Fourthly — No agreement on the part of Michael Welton was necessary.
    Y. The motion in arrest was properly overruled. First— Because by the petition Elizabeth Edwards was shown to have been wronged, and that Solomon Welton had wronged her, and she thereby sought redress and general relief. Secondly — By the combination of law and equity in the second count, the jury had a right under the instructions of the court to find for or against any of the parties for any thing and for any amount that was within the wrong complained of or the right sought to be enforced.
    YI. The evidence shows that the slave Tamar was bought with the trust fund, and therefore she and her increase went to the daughters on the death of Elizabeth Welton, their mother.
   Soott, Judge,

delivered the opinion of tire court.

This is an attempt by an action in the nature of trover to execute a constructive trust. The prayer of the petition is for the possession and delivery of the slave, and in default of delivery a judgment for his value and his hire. In this aspect of the case, if the facts warranted it, the plea of the statute of limitations was a defence to the action. That the plaintiff Elizabeth was a married woman does not prevent the running of the statute, if she was of age when the action accrued and afterwards married. The disabilities specified in the statute are not cumulative. If a plaintiff, when a cause of action accrues, is laboring under several disabilities, they must all be removed before he is compelled to sue ; but if he is subject to one or more disabilities when the cause of action arises, and afterwards another disability supervenes, the suit must be brought within the time limited for the first disability or disabilities. (Keeton v. Keeton, 20 Mo. 530.)

It is obvious that this action has been misconceived, or at least that the plaintiffs have misconceived their rights and have instituted their action in such a way as will not secure the adjustment of the trust by one suit. The trust is a joint one. One of its beneficiaries has no sole or exclusive right to any particular part or subject of the trust. Each beneficiary has a right in every part; and this is the first instance which has fallen under our notice in which one of several joint cestuis que trust has been permitted to single out one part of the trust fund, assert an exclusive right to it, and enforce that right by an action in the nature of trover. There is nothing whatever in the record which shows that this proceeding has any sanction in the approbation of the other parties who are interested. The instructions, given at the instance of the defendants other than Solomon Welton, do not help the matter. According to their own showing the plaintiffs were not entitled to more than one-fiftli of the value and hire of the slaves in controversy. This fifth would be exclusive of the interest to which they have a right as one of the heirs of the mother and sister. As the plaintiffs hare been excluded from all participation in a joint trust in which they have an interest, it is obvious that their rights can only be enforced in an action in which the whole trust fund is sought to be adjusted. The other cestuis que trust being made defendants, the portions they have received on the taking of an account before a commissioner would be taken into consideration, and the entire property divided or sold so as to do full justice between the parties. The parties who are sui juris may arrange matters by consent, but that consent, to avoid future litigation, should be made apparent by the record.

Justice has not been done by the judgment rendered in the cause. The money by the will was to be laid out in negro girls for the “ mother and her daughters.” These words would constitute the mother and her daughters tenants in common, and upon the death of the mother her share — one-fifth, as there were four daughters — would be distributed among all her heirs. So, on the death of Hannah, her interest would devolve on her mother and her sisters and brothers. All these interests have been overlooked, and the judgment is based on the pretension that the rights of Hannah and her mother survived to the remaining cestuis que trust.

The defendant Solomon Welton, taking under the deed, is estopped from controverting its terms. The deed recites that the trust money was appropriated to the purchase of slaves. A.s only two slaves were purchased, of whom Tamar, the mother of the slave in controversy, was one, it is obvious that he is subject to the trust. The property purchased with the trust money, whether it was of the kind required or not, would be impressed with the trust., if the cestuis que trust elected so to consider it.

Solomon Welton, being a volunteer, stands in no bettor situation than his father, and can hot insist on the want of notice. Although the executors under the will are liable to the cestuis que trust for the misapplication of the trust fund, if they see proper to pursue them, yet that does not prevent those interested from following the property acquired by means of the trust fund into whosesoever hands it may be affected with notice of the trust.

Judge Ryland' concurring,

judgment reversed, and cause remanded;

Judge Leonard absent.


text:
    Stephens, Plaintiff in Error, v. Spiers, Defendant in Error.
    1. Though a promissory note given by way of compromise of a doubtful right is valid and binding, it is a good defence that it was obtained through a fraudulent suppression of the truth.

      Error to Boone Circuit Cowrt.

    This was a suit upon two promissory notes executed by defendant Zeplianiah Spiers, in favor of plaintiff, one for $332.96, dated November 8, 1855, payable December 25, 1855, the other of the same date for $300, payable January 1,1856.
    The defendant in his answer admitted the execution of the notes, but averred that they were executed by him under a mistake of his rights and because of deceitful representations made to him by the plaintiff, Stephens ; that on the 7th day of June, 1847,'he, defendant, together with George S. Waters, and others, executed and delivered to plaintiff a note for $1000 ; that afterwards, for the purpose of securing this note, and another note for $929.12 executed in favor oi plaintiff by M. R. & R. G. Waters and George S. Waters, George S. Waters mortgaged to plaintiff on the 25th of April, 1848, a certain tract of 240 acres of land in Boone county, Missouri; that various payments were made on said notes, amounting to near six hundred dollars; that in September, 1850, while defendant and his co-obligor, George S. Waters, were in California, the plaintiff sold said mortgaged lands at private sale and in fee simple for $1500 to Dr. Turner, and received from him, Turner, $1008 in money, and his (Turner’s) note for $500, payable in twelve months, which last note be, plaintiff, has collected; that be lias given no credits on said notes for any part of tbe sum so paid ; that on the 10th of May, 1851, be, Stephens, after be had sold to Turner and while Waters and defendant were in California, instituted proceedings for the foreclosure of the said mortgage ; that he obtained judgment of foreclosure, and that said land was sold in the year 1.852, and he, Stephens, became the purchaser at the sum of $500 ; that he, Stephens, well knowing that all or nearly all of said notes had been paid, wrongfully and fraudulently instituted suit against defendant on the note for $1000 which had been discharged as aforesaid, and fraudulently and deceitfully represented to defendant that said note was unpaid, and by such false, deceitful and fraudulent misrepresentation induced the defendant to execute to plaintiff the two notes sued on in the present action, for which defendant has received no value whatever ; that at the time of the execution of the said mortgage by George S. Waters, Waters had been responsible to plaintiff for the said $1000 note, and that plaintiff had accepted him, Waters, as the payer of said note ; that the note was procured by fraud and was without consideration.
    There was evidence adduced tending to support the allegations contained in the answer. The court, at the instance of the plaintiff, instructed the jury as follows : “ 1. If the jury find from the evidence that there was an unsettled debt existing between the plaintiff and .the defendant, and that the notes sued on were executed in settlement or compromise of such debt, and that in consideration of the execution of said notes Stephens dismissed a suit which he had brought and was then pending for the collection of the debt aforesaid, they will find for plaintiff the amount of said notes and interest, unless such settlement or compromise was procured by fraud or misrepresentation on the part of plaintiff. 2. If the jury find from the evidence that plaintiff, at the request of defendant, dismissed a suit which he had brought against him, and that the notes sued on were given .in consideration thereof, then, although there may have been no foundation for such suit, they will find for plaintiff, unless such arrangement was procured by fraudulent representations by plaintiff.”
    The court, at the instance of the defendant, further instructed the jury as follows: “ 1. If the jury believe from the evidence that the notes sued upon were executed by defendant without any consideration, they must find for the defendant. 2. If the jury believe from the evidence that the plaintiff agreed to receive from George Waters, in considerar tion of the note of $1000, executed by defendant and others, a mortgage upon his land, and did receive such mortgage pursuant to such agreeement, and accepted the same in discharge of Spiers’ obligation, and that plaintiff afterwards obtained from defendant the notes sued upon by misrepresentations or by omission to give the proper credits or release on the $1000 note, and defendant was deceived as to his rights and executed said notes without consideration and in mistake of his rights, they should find for defendant. 3. If the jury believe from the evidence that the defendant executed the $1000 note, given in evidence to plaintiff for goods purchased by defendant from him, and that afterwards defendant sold the goods so purchased to George Waters and others, and that plaintiff agreed to release defendant and receive George Waters or any one else for said note, and did accept other security for such debt, promising to release said defendant, they should find for the defendant, unless they believe that the notes sued on were executed by defendant for a good and valuable consideration other than the said $1000 note. 4. If the jury believe that defendant, at the time of executing the notes sued on, was not indebted to plaintiff, and was induced by plaintiff to execute the same by false calculations of his rights, and misrepresentations of the amounts duo and owing to him, they will find for the defendant. 5. If the jury believe that Stephens released to defendant the $1000 note in evidence, in consideration that Waters would execute to him the mortgage in evidence, and that the notes now in suit were signed by defendant in liquidation of said $1000 note under a mistaken view of his rights, induced by the false and fraudulent representations of Stephens, they will find for defendant.”
    The jury found a verdict for the defendant.
    Gordon, for plaintiff in error.
    I. The notes sued on were given by way of settlement and compromise of a suit which the plaintiff in error had brought in the Boone circuit court against the defendant in error, which was a good and valid consideration for the notes sued on. (10 Mo. 489 ; 20 Mo. 102.)
    II. There was no evidence in the cause to warrant the court in giving the second, third, fourth and fifth instructions asked by the defendant in error. There was no evidence that the plaintiff in error made any false or fraudulent representations, nor was there any evidence to prove that the plaintiff in error made any false calculations or misrepresentations as to the amount which the defendant was owing him. The instructions were calculated to mislead the jury, and ought not to have been given by the court. (10 Mo. 489.)

      Young, for defendant in error.
    I. Stephens released the defendant from all liability upon the $1000 note by accepting the mortgage from George Waters, and his withholding from defendant the fact that he had received from Turner $1500, the price of the mortgaged land by him, and the different sums in the several receipts given in evidence, for none of which he had given credit on either the note for $1000, executed by defendant, or the $929.12 executed by M. R., R. G. and George Waters ; and his procuring the interest to be calculated on the $1000 from its date to the day of settlement, at ten per cent, per annum, shows a most glaring fraud in the whole transaction, which authorized the giving of defendant’s instructions and the verdict of the jury. (City Bank v. Philips, 22 Mo. 85 ; Chitty on Con. 648.) The acceptance of the mortgage from Waters, agreeing to discharge Spiers from further liability, was a release to Spiers. (Phelps’ Adm’r v. J. & O. Johnson, 8 Johns. 54; Ouyler v. Cuyler, 2 id. 186.)

      II. Tlie evidence in tbe case conclusively shows that when the notes sued on were executed, defendant was ignorant of the fact that Stephens had released him from the $1000 note, or that Stephens received the several sums of money before stated, and these facts were concealed from him by Stephens; that Stephens induced him, from the calculations made by Todd, to believe that no part of the $1000 note had been paid, and that it was still due and owing by defendant, and, by a pretended exhibition of liberality of releasing him from one-half of his liability on the note, fraudulently induced him to execute the two notes sued on. If the evidence in the case warranted the jury in such conclusions, the instructions given for defendant were proper and legal. (See Young v. White, 18 Mo. 98 ; Brown v. North, 21 Mo. 529; Ohitty on Contracts, 589.)
    III. The jury had the exclusive right to try the facts of the case, and having found that defendant’s pleas were true, and that the notes sued on were obtained by fraud on the part of the plaintiff, there being no error by the court in giving the law of the case, this court will not reverse for such finding by the jury. (See Young v. White, 18 Mo. 98; Goetz v. Ambs, 22 Mo. 170; Holladay v. Attorbury, 22 id. 514; Metz v. Eddy, 21 id. 14.)
   Soott, Judge,

delivered the opinion of the court.

There is no doubt of the correctness of the proposition that a compromise of a doubtful right is a valid consideration for a promise. But this case does not stand upon this proposition. George Waters was a party to the note for $1000 and became responsible for it. He testifies that in order to release the defendant he executed a mortgage to the plaintiff, who agreed, in consideration thereof, to discharge him from all liabilities then existing against him. This mortgage was accepted by the plaintiff and was enforced by him. Now if a suppressio veri est suggestio falsi, the plaintiff acted in bad faith in afterwards suing the defendant upon the note for $1000, when, for a valuable consideration, he had previously released him. If the notes sued upon had been executed in a spirit of compromise upon a full disclosure of all the circumstances affecting the liability of the defendant, they would have been binding upon him. The jury however have negatived this state of facts, and, as they were the proper judges of the matter, we can not interfere with their verdict. It does not appear that the defendant, when he executed the notes sued on, was aware of the inducement which led to the giving of the mortgage by Waters ; and the withholding of the knowledge of this fact from him was enough to vitiate the transaction.

After the instructions asked by the plaintiff and given by the court, we do not see with what consistency he can complain of the instructions given at the instance of the defendant. The plaintiff’s instructions expressly put his right of recovery upon the freedom of his conduct from fraud and misrepresentation. He can not then complain that there was no evidence of fraud in the transaction which would warrant the instructions given for the defendant. These instructions placed the plaintiff’s right to recover on the same ground, with specifications and some amplification adapted to the evi-

dence in the cause. Judgment affirmed ;

Judge Ryland concurring ; Judge Leonard absent.


author: EylaND, Judge,

text:
    Sherwood’s Administrator, Respondent, v. Hill et al., Appellants.
    1. The widow of a testator is a competent witness, in a suit upon the bond of the executor of the will of such testator, to prove the receipt by the executor of money belonging to the estate that had not been inventoried or accounted for.
    2. The bond required by law of an executor is broken if he fail to make a complete and perfect inventory of the estate of his testator; his securities will be liable for a failure on Ms part to inventory and account for money of the testator received b him after the death of the testator and before the granting of the ]<■' testamentary.

      Appeal from Buchanan Court of Common Pleas.

      A. II. Tories, for appellants.
    I. Sidonia Sliorwood was an incompetent witness. She was incompetent, being a party for whose immediate use and benefit said suit was prosecuted, and who would be entitled to part of the money sought to be recovered.
    II. The testimony of the witness David C. Montgomery was not relevant to the matter in issue, and was improperly admitted. The issue being the amount of money received by Gaines, which was the money of Sherwood at his death, and the note of Montgomery being on hand and unpaid at the death of Sherwood, Gaines was bound to make an inventory of the note, and, from what appeared on the trial, he might have done so. Then, if charged with the note and money, there was a double charge against him.
    III. Appellants’ first instruction ought to have been given. It contained the law applicable to the case, and submitted the question of fact to the jury whether Gaines received the money charged in the petition or any part it, which was the money of said Sherwood at the time of his death, and failed to account for it.

      Loan, for respondent.
    I. Mrs. Sherwood was a competent witness. There .is no motion for a new trial properly preserved in the bill of exceptions. (E. C. 1855, tit. Witnesses, § 1; 20 Mo. 17.)
   EylaND, Judge,

delivered the opinion of the court.

Eichard P. Gaines was appointed executor by the last will and testament of Absalom B. Sherwood, deceased. He gave bond as such executor with the defendants, Thomas ITenry and Samuel Hill his securities. Gaines died in July or August, 1852, and the plaintiff, Lewis W. Gaines, was appointed administrator de bonis non of Sherwood’s estate. This suit is founded on the bond of Eichard P. Gaines as executor as aforesaid, against his securities, Henry and Hill. The breadles assigned are, that Richard P. Gaines failed and neglected to make a perfect inventory of the estate of said Sherwood, deceased — failed to render just accounts; that on or about the 25th day of January, 1858, he, the said Richard P. Gaines, as executor of said Sherwood, received of the money belonging to said estate the sum of three hundred and eighty-five dollars, of which he has hitherto failed and neglected to make any inventory or otherwise account for; that he failed to render just accounts, by not stating in the accounts which he rendered said sum of three hundred and eighty-five dollars received by him as part of said estate, and for which he has wholly and entirely failed to account; that he failed to apply said sum of three hundred and eighty-five dollars received by him as part of said estate to the benefit thereof as required by law. Plaintiff showed his "letters as administrator and asked for judgment on the bond.

The defendants answered, admitting the execution of the bond, but denying all knowledge of the matters assigned for breaches thereof by plaintiffs. They state that they were the securities merely.

Upon the trial the plaintiff offered Sidonia Sherwood, the widow of Absalom B. Sherwood, deceased, as a witness ; the defendants objected to her as incompetent; the court overruled the objection and admitted the witness. She stated that her husband, at the time of his death, had four or five hundred dollars ; that David Montgomery, after Sherwood’s death, paid her one hundred dollars ; and that before the inventory was made by Sherwood’s executor she gave to him three hundred and eighty-five dollars, and also the one hundred dollars paid by Montgomery ; that she kept fifty dollars herself. The plaintiff proved by David Montgomery that in December, 1852, after Sherwood’s death, he paid to Sidonia Sherwood, widow of said deceased, one hundred dollars, and took up his note from her which he had given to Sherwood. The defendants objected to this testimony, which the court overruled, and admitted the evidence, and the defendants excepted. The plaintiffs proved that a short time before the death of Sherwood he had four or five hundred dollars in his house, in a purse in a drawer; the witness (Hartwell Sherwood) stated that he saw the same on the day of the death of his brother, at his house; but whether the same ever was received by Richard P. Gaines he could not tell; that Gaines was at the funeral of Sherwood, and was his father-in-law. The plaintiff proved that the only money inventoried was one hundred dollars in gold and twenty-five cents in silver. This was all that was found when the executor examined the papers and effects of the deceased, as was stated by the witness Gibson, who was called on to help the executor make his inventory.. The plaintiff introduced the inventory of said executor, wherein he had only inventoried as cash the sum of one hundred dollars. Witness Reynolds stated for plaintiff that he -wa's one of the witnesses that made the inventory along with the executor; that they only inventoried money on.hand. |amounting to one hundred dollars and twenty-five cents ; that if the executor ever received any more than that, lié did not know.

The defendants asked the court to instruct the jury as follows : “ Unless the jury believe from the evidence that Richard P. Gaines, as executor of Absalom B. Sherwood, deceased, received the money charged in plaintiff’s petition, or any part of it, which was the money of Absalom B. Sherwood, deceased, at the time of his death, and failed to account for it, they will find for the defendants.” This the court refused to give, and the defendants excepted. The jury found their verdict for the plaintiff for the sum of two hundred and eighty-four dollars and seventy-five cents. Judgment was rendered thereon for plaintiff; defendants moved for a new trial, which being overruled, they bring the case here by appeal.

There is nothing in the first point made by the appellants in this court, namely, that Sidonia Sherwood was an incompetent witness. This has been settled by repeated decisions of this court under our new code. (Scroggins & Smith v. Holland, 16 Mo. 419; Stein v. Weidman’s Adm’r, 20 Mo. 17.) These cases settle this point against the defendants below, appellants here.

Nor is there any thing in the admission of the testimony of Montgomery which would authorize this court to reverse. The issue was not alone failing to account for money on hand at the time of the death of Sherwood, but also for failing to render true accounts of money received, &c. But the third point involves more serious matter — that is, the refusal of the court below to give the defendants’ first instruction set forth above. The defendants contend that they are liable only for what money Gaines received as executor of" Sherwood and failed to inventory or account for, and_ they are not liable for acts done by him or monevfuf : tate received by him before they were bound for IpnPás securities in his bond; that to make them liable, the mpneg have been received by Gaines as executor, and not Tor wnat he did before he was qualified and gave bond as wicjhJSE, ARY

The testimony does not show when Mrs. Sherwood paid or handed over to the executor the money — whether iTw^st:^"" fore he was qualified as such, and executed the bond with the defendants as his securities, or not. She stated that before the inventory was made by Sherwood’s executor she gave to him three hundred and eighty-five dollars, and also the one hundred dollars paid by Montgomery. This makes the sum of four hundred and eighty-five dollars proved to have been handed over to the executor. The inventory offered in evidence only showed One hundred dollars and twenty-five cents. Here is a palpable failure to make a correct inventory, and that is one of the breaches assigned in the petition. The condition of the bond is, in part, that the executor Gaines shall make a perfect inventory of the estate of said deceased. This he has not done. He has omitted to state the amount of money he received or which came to his possession by at leash three hundred and eighty-five dollars. Then it was not alone for the amount of money which the executor received and failed to account for that these defendants became liable, but they are liable for the executor’s failure and neglect to make a perfect inventory. The instruction therefore was properly refused. The bond required by law of an executor is broken if he fail to make a perfect inventory of the estate of his testator; therefore money coming to his hands after the death of the testator and before proof of the will or before letters testamentary have been granted, is a part of the estate to be inventoried, and a failure to make such inventory or to put the amount of money so received in the inventory is a breach for which he and his securities may bo held responsible on his bond.

This case differs in the facts from the case of Farrar & Brown v. United States, 5 Peters, 373, and the case of The State, to use of Smith, v. Paul’s Executor, 21 Mo. 51. In a case like the present the executor might, if the money came to his hands after the death of the testator, file his affidavit that ho did not owe the testator any amount at the time of his death ; and if he were not bound to inventory money thus received, a wide door for peculation might be opened, and his bond would afford no protection against such abuses or for such breaches of trust. Upon the whole case, there appears no error, and the judgment is, with the concurrence of Judge Scott, affirmed.