Butterfield v. Smith

An executor charged himself in the inventory of the estate of the testator with a note payable to the latter and secured by mortgage. His accounts were settled on that basis. An administrator with the will annexed subsequently brought suit to foreclose the mortgage. Held, 1. That the probate record showing the inventory and the order for distributing the assets of the testator is not conclusive evidence that the note has been paid. 2. That an executor’s settlement when adjudicated binds only the parties thereto.

Appeal from the Circuit Court of the United States for the District of Kansas. This suit was brought, Oct. 26, 1877, by Mary A. Smith, administratrix de bonis non, with the will annexed, of the estate of Julius C. Wright, deceased, to foreclose a mortgage made by Daniel M. Adams and wife to secure a note for $5,000 to said Wright. The latter died in 1871. His will, by which he appointed George B. Wright his executor, was admitted to probate, and the executor qualified. In an inventory of the estate this note was included as part of the assets. In April, 1875, the executor made' application to the court for a final settlement. In his accounts he charged himself with the full amount of the inventory, and after the allowance of the proper credits, a balance was found- in his' hands which was ordered to be distributed in a specified manner, according to the terms of the will, but a balance of $6,840.25, one share, was deft in his hands with directions “ to invest for Charles. Wright, or pay the money pursuant to the will.” The executor died in 1877. The complainant, shortly after her appointment as such administratrix, commenced this suit, to which Adams and wife, and Osear H. and Andrew J. Butterfield, with others, were made defendants. Adams and wife did not answer, but as to them the bill-was taken as confessed. The Butterfields answered that they were the owners of the mortgaged property, and then, by way of defence to the mortgage, set up— 1, that they were informed and believed that the note and mortgage sued on were not.the property of the estate of Julius C. Wright, but that the same were the property of Adams, the mortgagor, and were executed by him for the purpose of cheating and defrauding his creditors, and especially the appellants; and, 2, that the note sued on had been paid to George P. Wright, executor, “ as appears by the inventory and his final settlement, copies of which are hereto attached, marked exhibits A and B.” A decree was passed in favor of the complainant. The Butterfields then appealed to this court.