State v. Jones

• Citation: 33 S.W. 23,131 Mo. 194
• Parties: STATE ex rel. JONES v. JONES et al.
• Decision Date: 26 November 1895
• Court: United States State Supreme Court of Missouri

33 S.W. 23

131 Mo. 194

STATE ex rel. JONES v. JONES et al.

Supreme Court of Missouri, Division No. 1.

November 26, 1895.

EXECUTORS — PURCHASE FROM LEGATEE — FRAUD — ACTION ON EXECUTOR'S BOND — FINDING OF PROBATE COURT.

1. An action on an executor's bond, for a money judgment for plaintiff's distributive share, is an action at law, notwithstanding the allegations of the reply that an assignment from plaintiff was obtained by fraud, and a prayer therein for equitable relief.

2. A purchase by an executor from a legatee of his interest in the estate is not void; the trust relation merely putting on the executor the burden of proof, where the contract is, in a proper action, attacked for fraud.

3. In an action at law on an executor's bond by a legatee, to recover his distributive share, an assignment by plaintiff to the executor of his interest cannot be attacked on the ground of fraud of the executor, by false representations and concealment as to the value and condition of the estate.

4. The finding of the probate court, on final settlement of an executor, that a certain person was entitled to a certain sum as his distributive share of the estate, and its order that the same be paid him, as such share, do not prevent the executor interposing as a defense to an action therefor an assignment by such person of his interest to the executor before the final settlement.

Brace, C. J., dissenting.

Appeal from circuit court, Warren county; W. W. Edwards, Judge.

Action by the state, on the relation of P. H. Jones, against Joseph L. Jones and others. From a judgment for defendants, plaintiff appealed to the court of appeals, where judgment was reversed, and the case is now certified to the supreme court. Court of appeals ordered to affirm judgment of trial court.

Knapp & Harris, for appellant. Johnson, Smith & Drunert, for respondents.

ROBINSON, J.

This is an action upon the official bond of J. L. Jones, as executor of Julia A. Dearing, deceased, and his sureties therein, for $397.46, the alleged distributive share of the relator, P. H. Jones, in the estate, as legatee under the will of said deceased, as found on final settlement of said executor to be due and owing to relator, and ordered by the probate judge to be paid him. The petition is in the usual form, charging the execution and delivery of the bond; its condition; the executorship of defendant, and that by the will P. H. Jones, the plaintiff, was entitled to one-fifteenth of the estate of Julia A. Dearing, deceased; the final settlement of defendant, and the order of the probate court to pay relator $397.47, as his distributive share; and prays for judgment of the penalty of the bond, and execution for the sum of $397.47, with interest. The answer was that the relator had, prior to the settlement of the executor and the order of distribution by the probate court, sold his interest in said estate to Juliet A. Jones, and had, for value received, in writing duly executed, assigned and transferred through her agent, J. L. Jones, his interest in said estate to said Juliet A. Jones, and that the executor, having due notice thereof, paid the sum of $397.46 so found as the interest of said relator in said estate to Juliet A. Jones, and took her receipt therefor, together with the other legatees and distributees of said estate, and deposited the same with the papers of said estate, with the filing of the probate court duly indorsed thereon, and that, having paid same to relator's assignee, nothing is now due him from said estate. Relator then filed his reply, admitting "that there was a certain transaction between him and defendant J. L. Jones prior to said final settlement, as is alleged in the answer herein, and that the assignment which defendants claim was made was the result of the transaction; but plaintiff alleges that after said transaction between him and defendant J. L. Jones, and on the final settlement of said estate by the probate court of Montgomery county, the said distributive share of the relator, as is alleged in the petition herein, was found by the probate court to be due and owing to relator, and was thereupon ordered by the probate court to be paid to relator, and asks judgment in accordance with the prayer of the petition herein. And, further replying, says that the assignment was made to J. L. Jones in his own right, while he was acting as executor, and not as agent of Juliet A. Jones, and that same was obtained from relator by false and fraudulent representations and false and fraudulent concealment concerning the condition and value of the assets of said estate, and that same was unknown to relator, and that relator relied on the statement and representation of defendant J. L. Jones on the making of said assignment; and prays the court to grant him such relief as he would be entitled to had said assignment not been made, and for such other relief as may be just and proper." Jury being waived, the case was tried by the court, resulting in a finding and judgment for defendant. There was but little conflict in the testimony at the trial of the case, and we have given the statement of the facts, so far as they are not admitted in the pleadings, as same is found in the opinion of the St. Louis court of appeals when case was in that court for determination.

Relator, on the day and place therein named, executed this assignment: "Know all men by these presents, that I, Patrick H. Jones, of the city of Galveston, in the state of Texas, have this day, in consideration of the sum of two hundred dollars ($200.00), to him paid by J. L. Jones, of Montgomery county, Missouri, bargained, sold, assigned, and transferred, and by these presents do bargain, sell, transfer, and assign, unto the said J. L. Jones, all my right, title, interest, and claim in and to the estate of my aunt, the late Julia A. Dearing, of Jonesburg, Montgomery county, Missouri, which said estate is now in process of administration in the probate court of Montgomery county, Mo. The said interest hereby and herein bargained, sold, and transferred to said J. L. Jones to include all my right, title, claim, and interest in and to all the property of any kind and description whatsoever belonging to said estate, and do hereby guaranty the title to the claim hereby assigned and transferred to be free and clear of any incumbrance, liens, or debts by me made, and that the same is free and clear of any claims, liens, or incumbrances. Witness my hand and seal this 28th day of August, 1886. Galveston, Texas, 9th/7th/'86. P. H. Jones. [Seal.]" Thereafter the foregoing assignment was indorsed as follows: "This claim having been purchased by me for Juliet A. Jones, as her agent and with her money, the same is hereby formally transferred to her. J. L. Jones." And also, to wit: "$395.46 1/3. Recd. of J. L. Jones, executor of the estate of Julia A. Dearing, deceased, the sum of three hundred ninety-seven & 46 1/3 ($397.46 1/3) dollars, in full of the amount of the interest of P. H. Jones in said estate, as legatee under the will of said deceased, as appears by the final settlement of said estate by said executor; the interest of said P. H. Jones having been transferred to me this March 11th, 1890. Juliet A. Jones." The assignment of relator was made to the executor after some correspondence between them. The letters were not produced at the trial. Relator, in substance, testified that he was notified that he was one of the fifteen legatees under the will of Julia A. Dearing; that the executor, J. L. Jones, wrote to relator that the estate in his hands consisted of a note for $5,000, with interest, which would not be due until 1890, and a few personal effects, of small value, and inclosing an advertisement of sale of the latter; that relator thereupon offered to sell his share in the estate to the executor for $275; that the executor replied, "There were so many bills being probated against the estate, that, if any of the heirs wanted a settlement immediately, he would have to put up the $5,000 note at auction, and sell it to the highest bidder, and, not knowing what it would bring, he would risk $200 for my interest." Relator states that, believing these statements, he agreed to take $200 for his share, and influenced his sisters to do the same; that the executor sent his private check for $200, less discount, on a Missouri bank, to relator; that at the time he did not know the executor was one of the makers of the note, but was under the impression that the executor's father was a maker, who then was dead and his estate unsettled; nor did he know what interest was due on the note, or how old it was; that he would not have sold if he had known he could have gotten the cash in full for his interest in the note; that he sold because the executor had stated that "he would have to sell the note, if any of the heirs wanted settlement before it became due, and did not know what it would bring." The executor testified that he wrote relator "there was not money enough on hand to pay the bills"; that he did not write that, "so many bills were coming in, that there would not be enough to pay them, unless the note was sold"; that he mailed a copy of the inventory to all the nonresident heirs, and gave them all the information in his possession as to the condition and value of the estate; that relator wrote back a proposition to sell; that he did not sell the note, because a majority of the heirs objected; that he took the assignment in his own name because he was doing all his mother's business (the transferee), and often made contracts for her in his name; he asked his attorney to draw up the form of the assignment; did not instruct him to make it out in witness' name; supposed he did so because he had been in the habit of drawing other contracts in witness' name; that he submitted relator's proposition to sell to his mother, who, after consultation, decided to accept it, and give witness the money;...