60 Mo. 246 (Mo. 1875), Townsend v. Townsend

Citation:60 Mo. 246
Opinion Judge:VORIES, Judge.
Party Name:SARAH K. TOWNSEND, ADMINISTRATRIX, ETC., Appellant, v. JOHN H. TOWNSEND, SURVIVING PARTNER, ETC., Respondent.
Attorney:L. H. Waters, for Appellant. Charles A. Winslow, for Respondent.
Court:Supreme Court of Missouri
 
FREE EXCERPT

Page 246

60 Mo. 246 (Mo. 1875)

SARAH K. TOWNSEND, ADMINISTRATRIX, ETC., Appellant,

v.

JOHN H. TOWNSEND, SURVIVING PARTNER, ETC., Respondent.

Supreme Court of Missouri.

May Term, 1875

Appeal from Chariton Circuit Court.

L. H. Waters, for Appellant.

A final settlement may be reviewed and impeached for fraud. ( Jones vs. Brinker, 20 Mo. 87; State, to use, vs. Roland, 23 Mo. 98; Sullivan Co. vs. Burgess, 37 Mo. 300.)

Charles A. Winslow, for Respondent.

The matters complained of in the petition were all once tried in the Probate Court, and a judgment rendered on them, which remains unreversed and is conclusive. The evidence discloses no fraud or collusion in procuring it, and for any mistake of law or fact the Probate Court may have made in the premises, it cannot be disturbed in this proceeding. ( Lewis vs. Williams, 54 Mo. 200, and cases cited.)

OPINION

VORIES, Judge.

In May 1866, Luke Townsend and John H. Townsend, formed a partnership by which they sold goods in the town of Brunswick, Chariton county, until February, 1867, when Luke Townsend died.

After the death of Luke Townsend, Sarah K. Townsend, the plaintiff, administered on his estate; and John H. Townsend, the defendant, under the provisions of the statute of this State, administered on the partnership effects of said firm; and on the 13th of July, 1871, after giving the notice required by law, made his final settlement in the Probate Court as such administrator.

This suit was brought to set aside said final settlement, and to have an account taken of the partnership effects, etc., on the ground that the final settlement was fraudulently procured.

The grounds of fraud relied on by the plaintiff in her petition, are, that the defendant omitted to include in his inventory, part of the partnership effects; that he falsely represented by said inventory that he was the owner of an undivided half of the property and effects of said partnership, when the fact was to the contrary thereof; that he had failed, in his different settlements with the Probate Court, to account for the property and effects named in his inventory; that in his said settlements, he had credited himself with larger amounts than he was entitled to, and had failed to charge himself with proper amounts of interest, etc.

The defendant in his answer denied all fraud and all allegations in...

To continue reading

FREE SIGN UP