Baldwin v. Dalton

• Decision Date: 25 February 1902
• Citation: 168 Mo. 20,67 S.W. 599
• Court: Missouri Supreme Court
• Parties: BALDWIN et al. v. DALTON et al.<SMALL><SUP>†</SUP></SMALL>

67 S.W. 599

168 Mo. 20

BALDWIN et al. v. DALTON et al.^†

Supreme Court of Missouri, Division No. 2.

February 25, 1902.

EXECUTORS AND ADMINISTRATORS — FINAL ACCOUNTING — SALE OF ESTATE PROPERTY — PURCHASE BY ADMINISTRATOR — FRAUD — SUIT TO SET ASIDE SETTLEMENT — EVIDENCE — SUFFICIENCY — APPEAL.

1. A voluntary dismissal of an appeal to the circuit court from a judgment of the probate court approving an administrator's final settlement is no bar to a suit in equity to surcharge and falsify the settlement.

2. The fact that the probate court, on being informed of a contemplated contest of an administrator's account, states that it will be approved if regular on its face, and that the contestant may appeal, does not show collusion between the judge and administrator, authorizing the setting aside of the judgment of the probate court on evidence by the administrator that he had no knowledge of the proposed contest, and of the judge and attorney for the contestants that they did not inform the administrator thereof.

3. Where the administrator of F. also succeeds his decedent, who was administrator de bonis non of another estate, and as administrator of F.'s estate settles the administration accounts of his decedent with the estate of which the latter was administrator, such settlement is not subject to review on final settlement of his accounts as administrator of F.

4. Under Gen. St. 1865, §§ 32, 35, which prohibited an administrator from purchasing realty of the estate for less than its appraised value, and required such sale to be approved by the court, and the deed executed by the clerk, a purchase of such realty, by an administrator or his attorney, at an administrator's sale under order of court, held prior to the repeal of the statute in 1879, and properly approved by the court, was valid, in the absence of fraud on the part of the administrator.

5. Where lands were sold by an administrator, and bought by him at more than the appraised value, and the sale was duly approved by the court, the fact that some time thereafter he sold the lands at an increased price to a person whom he did not know at the time of the purchase is insufficient to charge him, as trustee for the heirs, for the price so received, no unfair advantage on the part of the administrator being shown.

6. The mere purchase by an administrator of claims against the estate, though improper, is not fraud of such a character as will authorize a setting aside of his final settlement, in which he has only credited himself with the sums expended in the purchase of such claims, as such settlement will only be set aside for fraud in procuring the settlement, and not for a mere irregularity not showing fraud.

7. The fact that the final settlement of an administrator was docketed on the second day of the term and not filed till the fourth day is immaterial in a suit to set aside such settlement, when the evidence shows that the administrator was busy in another court during the week.

Appeal from circuit court, Butler county; J. L. Fort, Judge.

Suit by Thomas J. Baldwin and others against James L. Dalton, administrator d. b. n. with the will annexed of Isaac Davidson, deceased, and another, to set aside a final settlement as administrator. From a decree in favor of defendants, plaintiffs appeal. Affirmed.

E. R. Lentz and W. R. Edgar, for appellants. Wilson Cramer, for respondents.

GANTT, J.

This is the second appeal in this case. The former appeal is reported in 139 Mo. 118, 40 S. W. 765, 61 Am. St. Rep. 460. The suit is in equity by the heirs of J. W. Baldwin to set aside the final settlement of Isaac M. Davidson as administrator of J. W. Baldwin, deceased, made and approved at the May term, 1890, of the probate court of Butler county, for fraud, and to surcharge his accounts as such administrator. After the reversal of the cause, a retrial was had, which resulted again in a judgment for defendants, from which plaintiffs again appeal.

When the cause was here on a former appeal, upon the facts then presented to this court it was ruled that the mere fact that plaintiffs appealed from the judgment of the probate court, and thereafter dismissed their appeal, did not bar a suit in equity to set aside the settlement for fraud. In a word, the ancient jurisdiction of a court of equity to set aside a judgment for fraud is not ousted because a remedy at law exists, unless the statute giving the remedy at law directly and positively prohibits the exercise of jurisdiction by the courts of equity. Stewart v. Caldwell, 54 Mo. 536; Baldwin v. Davidson, 139 Mo. 126, 40 S. W. 765, 61 Am. St. Rep. 460. To that announcement we still adhere. Upon the evidence adduced on the former trial we also ruled that the action of the probate judge in announcing to the attorney for the heirs, when he advised him that he desired to contest the settlement when it should be filed, that, if it was fair on its face, he would approve it, and the heirs could appeal, showed collusion between the administrator and the court, and constituted fraud, for which the judgment afterwards rendered by the probate court should be set aside. On the retrial the evidence as to the action of the probate judge in approving the settlement of Davidson as administrator de bonis non was practically the same as on the former appeal, save and except that E. R. Lentz, the attorney for the heirs, testified: "I don't think I had any conversation with Davidson at that time. I don't remember to have said anything to Davidson about filing exceptions to his settlement." And Davidson unequivocally denies that Lentz or any one else notified him that the heirs intended to file any exceptions to his settlement, and, whatever may be said as to the conduct of the judge in not sending for Mr. Lentz when the settlement was presented, it is but simple justice, in view of the evidence as it now appears, to state that it entirely fails to show that Davidson directly or remotely undertook to improperly influence the judgment of the probate court, or was guilty of any fraud in procuring its approval of his final settlement. Since the former appeal Mr. Davidson has died, and James L. Dalton has been appointed administrator de bonis non with the will annexed of said Davidson. The circuit court on the retrial found as a matter of fact that there was no collusion between the probate judge and I. M. Davidson as to when said settlement should be filed, or as to its examination and approval; that the same was filed and approved after due notice, and that Davidson was not advised that any contest of his settlement would be made, and that plaintiffs were in no way misled by the remark of the probate judge, and that it was no part of the court's duty to send out and hunt up parties who had been legally notified that the settlement would be made at said term; that the settlement was duly made and approved. The circuit court also heard the evidence of various transactions and settlements of said Davidson as administrator of said estate. The specific charges in the bill and the evidence offered to substantiate the same will be noted in the consideration of each.

These facts appear in the record: Joseph W. Baldwin died in Butler county in 1873, and his widow Mrs. Elizabeth G. Baldwin, administered on his estate. Her inventory and appraisement showed personal estate amounting to $2,544. A few months after she had taken charge of the estate, she also died, without having made a settlement, and thereupon, on the 14th of July, 1873, Daniel Kitchen was appointed and qualified as her administrator, and on the same day William B. Fleming was appointed and qualified as administrator de bonis non of the estate of Joseph W. Baldwin. In the bill it is charged that the administrator of Mrs. Baldwin made settlement with Fleming, the administrator of Baldwin, by which it appeared that there were notes on hand belonging to the estate of Baldwin to the amount of $1,095.21, and county warrants to the amount of $74.10, exclusive of interest; but by the additional abstract, to which no exceptions have been filed in this court, and under the statute must be accepted as correct, it further appears that on May 27, 1874, — the same day said settlement was made, — it was set aside by the probate court on the motion of Davidson, the attorney for Baldwin's estate, because prejudicial. It further appears that in the lifetime of Joseph Baldwin he had sold to A. R. Rice certain lands, and executed a bond for title, and Rice had executed to him five notes, — two for $250 each, two for $200 each, and one for $250. Before the terms of the sale were complied with, both Baldwin and Rice died, and at the August term, 1873, the probate court, under the statute, ordered the bond and notes to be canceled, which was done without objection on the part of Rice's heirs. On the 3d of October, 1873, after the order of cancellation was made, Fleming, as administrator d. b. n. of Baldwin, gave David Kitchen, as administrator of Mrs. Baldwin, his receipt for the Rice notes, amounting to $950, which were thus received and turned over to Rice's administrator, and in this way $950 of the alleged $1,087.20 was wiped out; and also a receipt for other evidences of debt, amounting to $137.54. These two sums go to make up the $1,087 which plaintiffs assert were turned over to Fleming, as administrator of J. W. Baldwin's estate, on the alleged settlement, but which, as we have seen, was set aside by the probate court the same day it purports to have been made. While Fleming was administrator of Baldwin, he made two sales of real estate belonging to Baldwin, under orders of the probate court. He sold the N. E. fractional quarter of section 10, township 24, range 6, to Andrew Gibbony, for $100, April 20, 1874, and made report of this sale May 28, 1874, which was approved, and, having died before he executed the deed, the deceased defendant, I. M. Davidson, having been appointed...