Wilson v. Arrick

A. S. Worthington, for plaintiff in error.

H. E. Davis, for defendant in error.

Horatio Ames, whose administrator de bonis non brings this suit, died in January, 1871. On some day not shown by the record, but prior to April, 1873, his widow, Charlotte L. Ames, was appointed administratrix, with the will annexed, of his estate. There was claimed to be due the estate, from the United States, a large sum of money for cannon furnished, which was satisfied by payments made in April, 1871, and in January, 1873. In May, 1873, Mrs. Ames filed her account, in which she charged herself with the sum of $39,955 as received by her from the United States on account of the claim of the estate, and took credit for three payments, amounting to $33,574.36, made to Clifford Arrick, the intestate of the defendant, for which vouchers were filed, signed by him. Exceptions were filed to the account by Oliver Ames, a brother of Horatio Ames. Before the exceptions were heard. the court, on January 9, 1875, removed Mrs. Ames for having failed to comply with an order of the court requiring her to give an additional bond, and appointed the present plaintiff, Nathaniel Wilson, administrator de bonis non in her place. On January 22, 1876, the exceptions were heard, and the credit of $33,574.36, which the administratrix claimed on account of payments made to Arrick, was reduced by the court to the sum of $2,955.56, and the commission she claimed was also reduced. The account, as filed, showed a balance in her hands of $2,260.64; as corrected by the court this balance was increased to $34,876.75. Disregarding this settlement of the account, this suit was brought by Wilson, the administrator de bonis non, against Arrick, to recover the sum of $39,955, the whole amount with which the administratrix had charged hereself in her account; the allegation of the declaration being that he had collected that sum for the estate of Horatio Ames, and refused to pay it over. Arrick having died pending this suit, it was revived against the administrator of his estate.

It appears from the bill of exceptions that warrants were issued by the secretary of the navy to the administratrix for the amounts due from the United States to the estate she represented; that on their delivery to her she was required to indorse upon them her receipt for the money, which she did; and, having the warrants in her possession, she indorsed and delivered them to Arrick, who drew the money. The court, at the request of the defendant, charged the jury that 'the legal effect of the receipts, given in evidence and signed by Charlotte L. Ames, as administratrix, was to invest her with the control of the moneys mentioned in said receipts; and, if the administratrix parted with said control by the indorsement of said receipts, then the plaintiff is not entitled to recover.' And the court, of its own motion, added: 'If you find, from the testimony in this case, the Mrs. Ames, administratrix of the estate of Horatio Ames, deceased, received this fund from the government for the purpose of administration, and that after receiving it she wasted it upon Arrick, or anybody else, the plaintiff in this case would not be entitled to recover; it would be the case of administration of assets, and it does not survive to the administrator de bonis non to prosecute.' This charge of the court is assigned for error.

[Argument of Counsel from page 85 intentionally omitted]

WOODS, J.