Baldwin v. Davidson

• Decision Date: 11 May 1897
• Parties: Baldwin et al. v. Davidson et al
• Court: Missouri Supreme Court

40 S.W. 765

139 Mo. 118

Baldwin et al. v. Davidson et al

Supreme Court of Missouri, Second Division

May 11, 1897

Appeal from Washington Circuit Court. -- Hon. J. F. Green, Judge.

Reversed and remanded.

E. R Lentz for appellants.

(1) It was not necessary in this case to prove actual and positive fraud in the act of obtaining the judgment of approval of the final settlement of I. M. Davidson, as administrator of the estate of J. W. Baldwin, to authorize a court of equity to set it aside. But any improper omission or concealment, which results in loss to those interested, is sufficient without regard to the motives that actuated it. Story's Equity Jur., sec. 187; Clyce v. Anderson, 49 Mo. 40, 41; Houts v. Shepherd, 79 Mo. 144; Smiley v Smiley, 80 Mo. 46; Scudder v. Ames, 89 Mo. 515. (2) The statute clearly prescribes the manner in which appeals from the probate court may be prosecuted, and unless that statute has been complied with no appearance of the parties can give the circuit jurisdiction. The failure of the records of the probate court to show that an appeal had been granted is fatally defective and no appearance or consent of the parties can give jurisdiction. Robinson v Walker, 45 Mo. 118; Green v. Castello, 35 Mo.App. 127; Patton v. Williams, 1 App. Rep. 519; R. S. 1889, secs. 286-290. (3) The voluntary dismissal of the attempted appeal from the probate court was simply a judgment of nonsuit and will not support a plea of res adjudicata, or former adjudication. Nothing short of a judgment on the merits of the controversy will support this plea. Ellington v. Crockett, 13 Mo. 73; Water Works Co. v. School District, 23 Mo.App. 227; Taylor v. Larkin, 12 Mo. 104; Wells v. Moore, 49 Mo. 230; Spradling v. Conway, 51 Mo. 54; Garret v. Greenwell, 92 Mo. 120; Davis v. Hall, 90 Mo. 665; Miller v. Maus, 28 Ind. 194; Holland v. Hatch, 15 Ohio St. 468. (4) Courts of equity are not confined in their jurisdiction in this State to cases where there is no adequate remedy at law. In this case the right to appeal from the order approving the final settlement, or to proceed in equity to surcharge and falsify the accounts, were concurrent remedies, and plaintiffs had the right to pursue either remedy. Clark v. Henry's Adm'r, 9 Mo. 342; Oldham v. Trimble, 15 Mo. 228; Stewart v. Caldwell, 54 Mo. 539; Purdy v. Gault, 19 Mo.App. 191; Story's Eq. Jur. [13 Ed.], sec. 64. (5) The defendant Davidson purchased of himself the lands which he had in charge and of which he had the selling. He became a trustee for the heirs and distributees of that estate, and must account for all profits he may have made from a resale or in otherwise dealing with the same. Perry on Trusts [2 Ed.], sec. 429; Hill on Trustees [3 Am. Ed.], 160; Clyce v. Anderson, 49 Mo. 41; Rea et al. v. Copelin, 47 Mo. 83; Merritt v. Merritt, 62 Mo. 150; Houts v. Shepherd, 79 Mo. 144; Landis v. Saxton, 89 Mo. 381; Harney v. Donohoe, 97 Mo. 144; Shaw v. Shaw, 86 Mo. 594; Patterson v. Booth, 103 Mo. 413; Ward v. Davidson, 89 Mo. 458; Ownby v. Ely, 58 Mo. 478; Lass et al. v. Sternberg, 50 Mo. 126; Grumley v. Webb, 44 Mo. 451. (6) The defendant Davidson bought a large amount of claims against the estate for very much less than the amount that was due thereon, and afterward takes credit to himself for payments thereon; all such purchases enure to the benefit of the estate and not to the administrator. Perry on Trusts, sec. 428; In re Oakley, 2 Edwards, 478; Ex parte James, 8 Ves. 346; Ex parte Lacey, 6 Ves. 628; 1 White & Tudars Leading Cases, 225. (7) Defendant Davidson failed to account for large sums of money belonging to the estate which came into his hands. He has used the funds belonging to the estate for sixteen years and he should be required to account for interest at the highest rate he could have obtained and this computed with annual rests. Frost v. Winston, 32 Mo. 495; In re Davis Estate, 62 Mo. 454; Williams, Adm'r, v. Petticrew, 62 Mo. 472; Pomeroy v. Benton, 77 Mo. 64; Cruce v. Cruce, 81 Mo. 676; R. S. 1889, sec. 225.

Dinning & Byrns for respondents.

(1) Take plaintiff's bill as true, the testimony shows that the estate of Baldwin owes more money than the whole amount plaintiffs seek to compel Davidson to pay. These heirs have no interest in this estate until its debts are paid. Murphy v. De France, 105 Mo. 71; Vastine, Pub. Adm'r, v. Dinan, 42 Mo. 269; State v. Fulton, 35 Mo. 323; Green v. Tittman, 124 Mo. 372. (2) The probate court had the power to make an order to sell the land for the payment of debts due by the deceased when properly allowed, without petition and order to show cause. Day v. Graham, 97 Mo. 402; R. S. 1889, sec. 169. When the sale is made and the probate court approves the same, it can only be attacked for fraud. Price v. Springfield Real Estate Ass'n, 101 Mo. 116; Murphy v. De France, 105 Mo. 69; Rogers v. Johnson, 125 Mo. 202. The administrator had a right to buy at his own sale at the times Davidson bought those lands. G. S. 1865, sec. 32-35. This was the law of this State until the revision of 1879, sec. 166. (3) The appellants appealed from the judgment of probate court approving the final settlement. They filed their affidavit and bond within the time allowed by law. The bond was duly approved by probate judge and ex-officio clerk in vacation, and that was all the law required appellants to do, and when the judge sent the papers to the circuit clerk this completed the appeal, but if, as contended by appellants that the judge had to make a written order granting the appeal, then it was the duty of appellants to have compelled, by an order of the circuit court, the judge to write the order. Warner's Am. Law of Admr's, part of sec. 546; Biddison v. Mosely, 57 Md. 89; Bensley v. Haeberle, 20 Mo.App. 648; R. S. 1889, secs. 286, 287, 288, 289, 291, 295. (4) There is not a scintilla of evidence in this record that tends to taint the judgment of the probate court, approving said final settlement, with fraud or collusion, between the judge and the administrator. (5) It goes without saying that a party who has an adequate and complete remedy at law, can not abandon that remedy and invoke the aid of a court of chancery to give him the same rights that he could have obtained in a court of law. (6) Final settlement of an administrator in the probate court has the force and effect of judgments. "It stands as firmly on an impregnable basis of conclusiveness as does the judgment of any other court and can not be impeached except on the ground of fraud in the very act of procuring the judgment." Nelson v. Barnett, 123 Mo. 564; McClanahan v. West, 100 Mo. 320; Payne v. O'Shea, 84 Mo. 130; Murphy v. De France, 101 Mo. 151; S. C., 105 Mo. 64; Jones v. Brinker, 20 Mo. 87; State to use v. Roland, 23 Mo. 95; Barton v. Barton, 35 Mo. 158; Picot v. Bates, 47 Mo. 390; Oldham v. Trimble, 15 Mo. 225; Woodworth v. Woodworth, 70 Mo. 601; Lewis v. Williams, 54 Mo. 200; Smith v. Sims, 77 Mo. 272; Sheetz v. Kirtley, 62 Mo. 417; Miller v. Major, 67 Mo. 247; State ex rel. v. Gray, 106 Mo. 526.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is a suit in equity by the only children and heirs at law of J. W. Baldwin, deceased, to surcharge and falsify the accounts of I. M. Davidson as the administrator of the estate of said Joseph W. Baldwin, deceased. The suit was begun in the circuit court of Butler county, but the venue was subsequently changed to the circuit court of Washington county, where a trial was had on the eighth day of March, 1894. The defendant, I. M. Davidson, died since the suit has been pending in this court, and it was revived against the present defendants as his executors.

At the request of plaintiffs the court made a finding of facts as follows:

"1. The court finds that at the May term, 1890, of the probate court of Butler county, Missouri, in which court administration proceedings were pending, the defendant Davidson on Thursday, the fourth day of the term of said probate court, filed his final settlement, after having given due notice according to law of his intention to make said settlement. The probate court approved said settlement by its proper order entered of record. The court finds from the evidence that the attorney of the plaintiffs in this action representing the heirs, had informed the probate judge that he desired to contest the settlement of Davidson prior to the filing thereof, and was informed by the said probate judge that when the settlement was filed, if it was fair on its face, he would approve it, and the heirs could then appeal from his judgment. The court further finds that the probate judge acted from no improper motives in so advising counsel; that defendant Davidson was not advised that any contest was to be made upon said settlement; that there was no collusion between the probate judge and said Davidson as to the time when said settlement should be filed, or as to its examination and approval. The court finds that said settlement was duly approved.

"2. The court further finds that within the time allowed by law the plaintiffs here, who were the parties desiring to object to said final settlement, filed their affidavit for appeal from the judgment of the said probate court and also gave their appeal bond as required by law, and that thereupon the said final settlement and proceedings in connection therewith were by the probate court transferred and sent to the circuit court of Butler county, Missouri that said transcript was filed in the said court on the seventh day of July, 1890; that said cause on appeal remained of record in the circuit court from the date of the filing of said transcript until August, 1891, when the said appeal was voluntarily dismissed by the plaintiffs; that at one term...