Maupin v. Boyd , 5 Mo. 106 ( 1838 )

McGirk, Judge,

delivered the opinion of the court.

It ap.pears by the record that one James T. Moss, of Boone county, on or about the 5th of January, 1827, made his last will and testament, and shortly thereafter departed this life. That by said will all his real and personal property was given to his wife, Sarah Moss, during her natural life or widowhood, to be managed by her as-she might think best, for the benefit of his children. The will orders portions to be given to children on their marriage; provides that the executrix, Sarah Moss, shall give no security, and make no settlements; and further provides that in case the widow should marry, then the county court shall appoint administrators. The widow proved the will, and took on herself the execution of the •same. The testator left several children, and considerable-estate, real and personal. That she took the charge -of the family and property, and afterwards made sever- • al contracts for goods, leather shoes, and shoemaking, for •thevexpress use and benefit of the family, and, in every instance, gave her individual note for the payment of the money. That she-did not pay the money. That about the year,1835, she made some settlement with the county court, and thereupon shortly afterwards intermarried with the plaintiff, Maupin, leaving the notes unpaid. That then the county court of Boone county appointed the defendants, Boyd and Bryant, administrators of the estate. That after the marriage, Maupin paid a portion of the notes and took them up, and possessed himself of the balance, without it appearing whether he actually paid them or not. Maupin presented the notes to the county court for an allowance against the administrators out of the assets of the testator. The administrators resisted the demand, and the county court refused the allowance. Maupin appealed to the circuit court of Boone county, and that court also rejected the demand. To correct this decision the cause is brought here.

.A- leaving an(j executrix de-ring her life or winP&c7tfe wld-ow contracted sfvefal debta estate6,"for which she gave her individual notes, m'arriedW'th one M. — Held, that the administrators court on matriage 0f ant to the’proid»-ions of the will, m for the Amount of these notes, as so much money paid estate.USe the

Mr. Kirtly, of counsel for the administrators,, places the rejection of this demand on the ground that it was not a demand against the deceased at the time of his death,, and that therefore it cannot be allowed by the authority of the act of the general assembly providing for the payment of the debts of deceased persons; ana he then admits that if this demand had' been presented; as a claim for necessary expenses incurred by the executrix in her care and management of the estate, it might be allowed as such; but for want of that, it cannot be allowed.

Mr. Todd, of counsel for the plaintiff, insists that this claim, in the hands of Maupin, is nothing more nor less than a claim for money laid out by Maupin for the use and benefit of the estate of the testator;, and in that light, so far as his money has been used to pay a debt rightfully incur-, red by the executrix in pursuance of her trust, and remaining unpaid at the time the trust terminated, he is entitled to have his money refunded. The whole court is clearly of opinion that this view is correct; and that so tar as Maupin can prove he has paid money which eon-stitutes a just charge on the assets of the testator in the hands of the executrix during her executorship, he be entitled to it by an allowance against the present administrators., ■■

The counsel for the administrators, has further objected, that the true test in this case is,, that if the executrix was liable in her individual capacity, then the present administrators are not; and to support this proposition, cites and relies on the ease of Bryant v. McClintock, decided by this court—1 vol. Mo. R. 598. In that case the question was, whether or not Bryant et al., being commissioners for county buildings, were individually liable? McClintook had, at the request of Bryant et done the work, and to settle the matter, the court quired whether, in the first place, the county was liable? And as in that case the work had been performed, it was clear some body ought to pay for it. The court then said if the countv was not liable, then Bryant was. But this case is not like that. In this case, there can be no doubt that when the shoes were made and the goods de-l>verec4 ^10 assets of the testator were then primarily liable; and when the executrix gave her own notes, that act extinguished the debt as far as the shoemaker and merchant were concerned, and they could only look to the widow individually for their money. Mow, if she paid out of her own money, she then had a claim against the assets for that much money paid to the use of the estate; and when Maupin married her, it was his duty to pay her debts, and in doing so he paid money to the use of the estate of Moss. Then the matter amounts to this, that Maupin paid debts which he was bound in law to pay to the shoemaker and merchant, and the estate was not bound to them. But the estate is bound to pay Maupin for this expenditure, as money paid to its use.

Iam therefore of opinion the judgment of the circuit ■court ought to be reversed; and the other Judges concurring herein, the same is reversed. The cause is re-unanded to that court to proceed herein»