Orr v. Sanford

Biggs, J. — The plaintiff is the administrator of the estate of Teresa Albert, deceased. The defendant executed and delivered to the deceased the folio wing promissory notes, to wit: One dated February 29, 1894, for $300, due one day after date; the other dated the thirtieth day of May, 1887, for $200, due one day after date. On the twenty-fourth day of August, 1896, the plaintiff brought suit on these notes. He averred that on the fifth day of November, 1891, the defendant paid $25 on the first note. The defendant admitted the execution of both notes, but denied the alleged payment on the first. In bar of the action on that note, he interposed a plea of the statute of limitations. No defense was made to the second note. The answer sets forth six counterclaims, for which judgments were asked. The facts and circumstances connected with the counterclaims were alleged in the answer to be these: Teresa Albert was the widow of John Albert, and the sister of the defendant. John Albert died in 1881, testate. The defendant was named in the will as executor, and Teresa was made the sole legatee and devisee. The estate was hopelessly insolvent. There were existing judgments amounting to $12,000, and there was a [190] mortgage on the homestead to secure a debt of $5,000. There was a large amount of other indebtedness which was not secured. The defendant qualified as executor. The counterclaims are based on services which the defendant rendered his sister as her attorney. The services were rendered in connection with the business of the estate, that is the defendant charges for effecting a compromise of the judgments against the estate at about one fourth of their face value; for procuring for Mrs. Albert the assignment of certain allowed demands against the estate at a large discount; for services in the prosecution of a claim in favor of the estate against the Cape Girardeau and Southwestern Railway Company; and the recovery of the possession and the subsequent sale under the will of two tracts of land belonging to the estate. Concerning the liability of the deceased to pay for these services, the defendant alleges, “that at the special instance and request of the said Teresa Albert, the sister of the defendant, he did take upon himself the execution of the will with all the powers therein contained, she, the ' said Teresa Albert, then and there agreeing to employ and did employ this defendant as an attorney to protect and-promote her interests from the date of his qualification as such executor until a final settlement could be had of said estate, said employment to extend to a full adjustment and settlement.” In the replication the plaintiff averred a new promise to pay the first nóte. He decided that the defendant rendered the services mentioned in the counterclaims, but averred that if said services were rendered the defendant could not recover therefor. At the trial the circuit court excluded all evidence as to the counterclaims, and the-jury returned a verdict for the plaintiff on both notes. The defendant has appealed. The action of the court in refusing to hear evidence [191] in support of the counterclaims was right for two reasons: First, the alleged promise of Mrs. Albert to compensate the defendant for the services alleged to have been rendered was without consideration, for the reason that it was the duty of the defendant as executor to do the very things he avers the deceased employed him to do. Lingenfelder v. Wainright Brew. Co., 103 Mo. 578. Second, the defendant as executor was the trustee for the creditors of the estate. He could only serve the deceased m the manner claimed at the expense of his cestuis que trustent. This would render his contract with the deceased void as against public policy. Tyler v. Larimore, 19 Mo. App. 45. The exceptions taken at the trial on the plaintiff’s case have been abandoned in this court. The assignments of error and the briefs make no mention of them. The judgment of the circuit court will be affirmed. All the judges concur.