Dix v. Morris

1 Mo. App. 93, 1876 Mo. App. LEXIS 18

• Court: Missouri Court of Appeals
• Decided: January 31, 1876
• Status: Published

Opinion

Bakewell, J.,

delivered the opinion of the court.

It appears from the record in this case that Henry A. JDix, by his last will, bequeathed all his property to his wife, Jane, durante viduitate, for her support and the sup- . port of her five children; if she should marry, the estate then unconsumed to be divided among the children, reserving to her the interest she would have had had he died intestate. .'The executor, Joel G. Harper, is authorized to sell all or .any portion of testator’s estate, real or personal, on such terms as to him shall seem good, in order to carry out the provisions of the will.

The executor makes final settlement in the Probate Court on September 22, 1873, aiid jüclgm'ent is thereon rendered against him for $5,813.57, balance due the estate, which .he is ordered to pay the plaintiff, the widow, according to the terms of the will. From this judgment no appeal is taken.

Execution is issued against the executor, and returned ■nulla bona. The proper proceedings are commenced against the sureties, which being dismissed against Edmund F. Dix, not served, judgment is rendered against Walter B. Morris, the other surety, and, on appeal to the Circuit 'Court, on trial, the court finds for plaintiff, against Morris, $6,220.51, renders judgment for the amount of the bond, $30,000, and orders execution for the amount above.

On trial in the Circuit Court, defendant offered evidence which, if admitted, would, as the other side then and there ^admitted, have shown that the balance found due by the executor, on final settlement, was wholly composed of rents •collected, or the proceeds of real estate. This evidence was •excluded as incompetent and irrelevant, and we are asked to reverse "the case on the ground that the exclusion of this ■testimony was error:

This we cannot do. It is settled law in this State (Gamble v. Gibson, 59 Mo. 585) that rents collected by an •executor, though he be not bound to collect, are, when collected by him, assets of the estate in his hands; and we think that moneys received by him as proceeds of the sale ■of realty, sold under a power given by the will, whether •or no that power was duly executed by compliance with all its terms and conditions, are also assets of the estate beyond a doubt. It is argued that, in the case at bar, it does not appear that it was necessary to sell for the support •of the widow and children. However this maybe, the proceeds of the sale belonged to the estate, were clearly assets in the executor’s hands, and his sureties are liable for the amount.

We see no error in. the record. The judgment of the 'Circuit Court is affirmed.

The other judges concur.