Bunce v. Beck

• Decision Date: 31 July 1870
• Citation: 46 Mo. 327
• Parties: HARVEY BUNCE, ADMINISTRATOR OF ESTATE OF PRESTON BECK, JR., DECEASED, Defendant in Error, v. J. P. BECK, EXECUTOR OF ESTATE OF PRESTON BECK, SR., DECEASED, Plaintiff in Error.
• Court: Missouri Supreme Court

46 Mo. 327

HARVEY BUNCE, ADMINISTRATOR OF ESTATE OF PRESTON BECK, JR., DECEASED, Defendant in Error,

v.J. P. BECK, EXECUTOR OF ESTATE OF PRESTON BECK, SR., DECEASED, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1870.

Error to First District Court.

W. B. Napton, G. P. Strong, and N. Holmes, for plaintiff in error.

I. The admission of the new depositions of Limerick and Mrs. Beck was against well-established rules of chancery practice--rules that were not based upon any mere forms peculiar to English practice, but founded upon the regulations essential to insure justice and to keep out perjury. These witnesses had been thoroughly examined, cross-examined, and re-examined on all the points of fact which had occurred or could occur in the several interviews testified to. To allow their re-examination, after telling them wherein their testimony did not meet the case, is, to say the least, anomalous, dangerous practice, and against all the rules of chancery practice. (See 3 Greenl. 295, § 336, pt. 6, Redfield's ed.; Story on Eq. Pr., etc.) This is a proceeding according to the practice and principles of the chancery and ecclesiastical courts of England, and not according to the course of the common law; the facts are determined by the court, not by a jury. (Adams' Eq., by Brigham, 250, note 1; 19 Ala. 438; 20 Ala. 662; Miller v. Iron County, 29 Mo. 122; North Mo. R.R. Co. v. Green, 34 Mo. 159; Jones v. Brinker, 20 Mo. 87.)

II. All the conversation, as detailed by the witnesses (Mrs. Beck and Limerick), related to the meaning and effect of that letter. Not a word about independent orders. All the evils to be guarded against by excluding oral testimony relating to the meaning and effect of written contracts, would be admitted if one word of this testimony could be introduced.

Wash. Adams, and Draffen & Muir, for defendant in error.

I. An estoppel in pais being created, it would be an outrageous fraud, and ruinous to Bunce, to suffer Beck to question the propriety of this action of Bunce, induced as it was by his own conduct and orders. (See the case of Taylor et al. v. Zepp, 14 Mo. 482; Chouteau v. Goddin et al., 39 Mo. 250; Darrell v. Odell, 3 Hill, 219; Bunce v. Beck, 43 Mo. 266.)

II. The point made by the defendant, that the new depositions of Mrs. Juliet A. Beck and Wm. Limerick could not be read as evidence because depositions of the same witnesses were then on file, has no foundation in law or reason, as applied to the courts of this State. The old English chancery practice in regard to depositions, orders of publication, passing publication, etc., have never been adopted in this State, and are wholly inconsistent with our statute laws and practice in civil actions. In our practice, all actions are civil actions and all tried like actions at law. The modes of proof are precisely the same in all civil actions. If the depositions are not sufficiently definite, either party has the right to retake them and make out the points he may desire to prove.

BLISS, Judge, delivered the opinion of the court.

This case was before the court at the January term, 1869, and is reported in 43 Mo. 266, and the law of the case upon the additional facts now developed was substantially declared in the opinion there given.

It appears that Mrs. Beck, as guardian for her three children, had received an advance from the estate of Preston Beck, Jr., of $10,000 for each child, which amount had been distributed, with the knowledge of James P. Beck, to each of the other heirs as well. But to meet any contingencies that might arise, they or their guardians gave their notes to the administrator, and after the Probate Court had decided that the will of Preston Beck, Jr., could operate only upon one-third of his estate, and that James P. Beck, as executor, devisee and legatee of Preston Beck, Sr., was entitled to two-thirds of the whole as well as one-ninth of the remainder, Bunce, as administrator, deemed it necessary to call in these notes, and accordingly had commenced suit upon the one for $30,000 given by Mrs. Beck, and on the one for $10,000 given by Silver. They had appealed from the allowance of two-thirds of the estate to James P. Beck, and he was resisting a demand of $21,000 allowed to Mrs. Beck against the estate. She visited him in St. Louis for the purpose of adjusting their differences, and especially to obtain a discontinuance of the suit against her upon the note. A written agreement was entered into which embraced only the disputed claim of two-thirds and the allowance of the $21,000, and so far all would seem to be plain that there was no arrangement or understanding about anything else. But Mrs. Beck was not satisfied. She desired and expected the suit against her to be dismissed and her note to be given up; and James P. Beck writes a letter to Bunce upon the subject, the same given in the statement of the case in 43 Mo. 266. But this letter did not satisfy her. She wanted a positive order to give up the specific note, while the letter directed him to give up “any papers, notes, documents, etc., that will not infringe,” etc. Bunce held no other note, but he might not know whether its surrender would infringe upon James P. Beck's right to the two-thirds and one-ninth of the estate or not. A portion of the estate was still in New Mexico, of which he knew nothing, and it was his duty to distribute the estate here according to law, and the letter as written would throw a burden upon him which he would not be likely to assume. Mrs. Beck and Limerick, who was aiding her, understood that the letter called for the note and the discontinuance of the suit; still it was not direct and straightforward, and they wished it changed. But Beck refused to change it, and insisted that it meant as they understood it; that Bunce would give it up, etc., and to tell him so. As the testimony appeared when the case was formerly before us, it was doubtful whether J. P. Beck intended to send an absolute direction to Bunce to give up the note and dismiss the suit, or whether he intended to deceive Mrs. Beck about the meaning of the letter, and induce her to compromise the other matters by making her think that the matter of the note was also arranged. In our doubt upon the subject, and not to infringe the well-settled rule that every writing should speak for itself, we directed a new trial, and called the attention of the parties to a question of fact that had been left in doubt. We distinctly held then--and the position is not and can not be disputed--that if the defendant in error sent a message to Bunce, the administrator, to dismiss the suits and give up the notes, it would be a full justification of...