Henry v. State ex rel. Russell

Napton, J., delivered the opinion of the court. This was an action of debt brought in the name of the State, for the benefit of James C. Russell, by his guardian John Jump, against the admininistrator of the estate of Henry A. li. Russell, deceased and his securities. The breach assigned is, that three years had elapsed since the date of letters of administration, and that upon final settlement with the county court of Polk county, there remained in the hands of the administrator for distribution the sum of $441 05, which the county court ordered to be paid to the distriubutees, and that the administrator had failed and refused to pay over to the plaintiff his distributive share. The declaration is in the usual form, setting forth the bond of William Henry and his securities, and contains the necessary averments in relation to the date of its execution, and approval by the county court. The defendants pleaded non est factum, and, further, that at the time the settlement of said Henry was made with the county court, and ever since, the said plaintiff was not in a condition to receive his share, as adjudged to him by the county court, and give a discharge therefor, he being a minor under the age of twenty-one years, &c. Replication, that on the 9th Feb’y, 1844, the said John Jump was appointed by the county court of Polk county, guardian of the said plaintiff, Russell, and from thence hitherto, and at the time of bringing suit was and still is guardian, and authorized to give a proper discharge, &c. To this replication there was a demurrer, and the judgment on the demurrer was for the plaintiff. On the trial, upon the issue of non est factum, the plaintiff read the bond of defendants, which was objected to for variance, and the endorsement thereon, which was as follows : [772] “State of Missouri, county of Polk — The within bond was this day produced in open court, and was by them approved, this 8th May, 1836. WINFREY OWENS, J. C. C.” The plaintiff also read from the records of the county court, showing the orders of the county court on final settlement of said estate, to which no objections were made. It was also shown that said Henry’s administrator was one of the judges of said court, at the time of said settlement. The court gave judgment for the amount of the distributive share of plaintiff, and allowed interest from the date of the final settlement, at the rate of six per cent, per annum. A motion for a new trial was made and overruled, and a motion in arrest of judgment; exceptions were taken to the several opinions of the court, and the case is brought here by writ of error. The alleged variance between the bond offered in evidence, and the bond as described in the declaration, relates to the dates of its execution and approval, and its recitals; but upon an inspection of the record, we have been unable to discover any material variance. As to the insufficieney of the evidence of approval, it is a matter of which the defendants can claim no advantage. The bond is not the less valid, though it may not have been approved at all. The demurrer to the replication was properly decided for the plaintiff. The plea was no answer to the action; for if the distributee, though under age, had a guardian, it was the duty of the administrator to pay over the share of such distributee to the guardian. The replication, therefore, if the plea even be considered sufficient, was a complete answer to the plea. No demand was necessary. The order of the county court constituted sufficient notice to the administrator of his duty. Nor do we think the allowance of six per cent, interest upon the sum due the distributee upon final settlement, at all unreasonable. If the executor or administrator does not desire to retain the money of the estate which he has administered, and of which administration he has made a final settlement, in cases where the distributees are not competent to give discharges, he may, under the directions of the county court, lend out the money upon good security. When he retains the money, it is presumable that he derives from it that benefit which the law supposes the money to be worth, and he is properly chargeable with the interest. Judgment affirmed.