Callailan v. Griswold

• Decision Date: 31 January 1846
• Citation: 9 Mo. 784
• Parties: CALLAILAN, PUBLIC ADM'R, v. GRISWOLD.
• Court: Missouri Supreme Court

9 Mo. 784

CALLAILAN, PUBLIC ADM'R,

v.GRISWOLD.

Supreme Court of Missouri.

January Term, 1846.

ERROR TO WARREN CIRCUIT COURT.

LEONARD & BAY, for Plaintiff. 1. The judgments of the Circuit Court of Franklin county, allowing the demands of Alexander McKinney against the estate of Robert McKinney, are conclusive in this proceeding. The 8th section of the 4th article of the act of 1835 concerning Administration gives to the order of allowance of a demand against the estate, the “force and effect of a judgment;” and this is an attempt to impeach the judgment of a court of competent jurisdiction in a collateral proceeding. Montgomery v. Farley & Robinson, 5 Mo. R. 233; Hawley v. Mancius, 7 Johns. C. R. 174; Homer v. Fish, 1 Pick. 435. 2. The defendant in error, Griswold, is not only attempting to impeach the judgment of a court of competent jurisdiction in a collateral proceeding, but without making Alexander McKinney, to whom the judgments belonged, a party to this proceeding. Admitting that the judgments could be avoided in a proceeding like this, yet it would be necessary to make Alexander McKinney a party, before his rights could be affected or adjudicated upon. 3. Even if the judgments could be set aside in a collateral proceeding, without giving any notice to the party to whom the judgments belonged; yet there is no evidence of fraud, either on the part of the administrator or Alexander McKinney. Both believed the demands to be just, and the only evidence offered is the assertion of Griswold in his notices, which were clearly illegal and irrelevant. 4. The evidence offered on the part of Griswold should have been excluded from the consideration of the court as impertinent and irrelavant. Griswold does not stand in the light of an heir, but as a mere speculator, as appears from his own evidence. 5. The writings purporting to be evidence of Hughes, the former administrator, and Alexander McKinney, taken in another proceeding, should have been excluded. A party to a proceeding, cannot be compelled to testify. Greenleaf on Ev. 398. 6. The application for the order of sale of the real estate was made in strict conformity with the provisions of the administration law. See art. 3, §§ 8, 9, 10, 12, act of 1835, concerning Administration. 7. The County Court had full power to order the public administrator to take possession of the estate of Robert McKinney. See act concerning Public Administrations, statutes of 1835, pp. 64, 65, § 8. But no appeal lies from an order of the County Court directing the public administrator to take possession of an estate, or a refusal to rescind such an order. Besides, Griswold was a stranger, and had no right to object, and indeed has taken no appeal from the order of the County Court. 8. The questions now before this court never have been adjudicated between the parties. If the refusal of the County Court to order a sale of real estate, on the application of the administrator, is to be considered as coming within the rule, res judicata pro veritatem accipitur, then the rights of creditors would be entirely lost by a mere informality or illegality of proceeding, in an act purely ministerial on the part of the administrator. The County Court do not adjudicate upon the rights of parties, but merely refused to grant an order of sale upon grounds not affecting the ultimate rights of the parties. See the case reported in 6 Mo. R. 248-9.

CARTY WELLS, for Defendant. For the defendant I make the following points: 1. The public administrator had no power or authority to act as admintrator in this estate, it not coming within the provisions of the statute authorizing him to act. See Rev. Laws of 1835, p. 65, § 8. 2. If said administrator had power to act, the sale ought to have been ordered for several reasons: 1st. Because this very question had been before fully adjudicated between the parties, and that decision is a bar to this proceeding. See 1 Pirtle, 86-7, and cases cited. For right of him to defend; 6 Johns Ch. R. 360. 2nd. Because the debts, if any in fact existed, were not such as that land in Missouri should be sold to pay them; Story's Conflict of Laws. 3. There had been an administration in the State of Indiana, where Robert McKinney resided and died. This was the principal administration. There being no personal property in Missouri, no letters could be lawfully granted by the courts of this State. See Rev. Code, § 2 of Administration law, p. 41. If, however, letters could lawfully be granted in Missouri, the administrator was only auxiliary to those in Indiana, and there being no resident creditors in this State, the fund should first go to the distributees, if resident here; if not, it should have been sent to the principal administrator for distribution there, according to the laws of that State. Under such circumstances, land could not lawfully be sold. See Story's Conflict of Laws. 4. The demands allowed in Franklin Circuit Court, were barred by limitation. 5. Their allowance was obtained, and suffered by gross fraud and misconduct, on the part of Alexander McKinney, and the administrator of the estate.

To prove this, I rely on the following facts: 1. McKinney's object was to get the land, and not to collect debts due him from the estate; and with this view he purchased of a part of the heirs, and thereby admitted their title to be valid. Finding that he could not accomplish his purpose in this way, he wrote to his brother in Indiana to buy up those old debts for the purpose of using them, to divest the heirs of their title. 2. These debts were not judgments, or even allowances by the Probate Court of Indiana. They were merely reported debts. 3. There is no evidence that he ever bought them, or that his brother bought them, either from the true owner, or from any other person. 4. There is not even evidence that the owners were alive, at the time they were set up as debts here. 5. One of them was allowed to Wallace, administrator; yet he sues here for it in Wallace's name as his individual debt. 6. Even if they had been judgments in the State of Indiana, lawfully allowed against the administrator there, and still remained in full force, still the administrator, Hughes, in this State, was not bound by them, he having been no party there, and representing a different portion of the estate of the deceased. 7. Yet the administrator here, at the request of McKinney (who was not a creditor or a distributee), obtained letters here for the avowed purpose of aiding and assisting McKinney in having these old claims allowed in this State, in order to sell the land. 8. It is the duty of an administrator to defend all suits brought against the estate which he represents, and especially all illegal demands. Yet in this case, Hughes not only fails to defend, but actually employs an attorney, and directs him “to see that the claims are fairly allowed,” and this after he has had notice of the character of the claims. 9. The administrator employs one lawyer, and McKinney another, and McKinney pays both, and they appear before the court, and have judgment entered without observing even the forms of the law. 10. He refuses to appeal, although urged to do so, by one deeply interested. 11. The judgment when allowed, is in its terms, only a judgment to be paid out of the assets in the hands of the administrator. These things clearly establish fraud and collusion between the claimant and the administrator, and the judgment ought not to be enforced.

NAPTON, J.

This was an application to the County Court of Warren county, by the public administrator of said county, having in charge the estate of Robert McKinney, deceased, for the sale of certain real estate, belonging to the heirs of said McKinney, to satisfy certain claims which had been previously allowed against the estate. Griswold, who had purchased the interest of several of the heirs, appeared in the court, and objected to the sale. Griswold also moved the court to rescind the order directing the public administrator to take charge of this estate, but the motion was overruled. The objections of Griswold to the sale were also overruled, and the land was ordered to be sold. From this decision of the County Court, Griswold appealed to the Circuit Court, where upon a trial de novo, that court refused to make the order, and to this judgment of the Circuit Court the public administrator brings his writ of error.

It appears from the bill of exceptions, that Robert McKinney died in Indiana in 1823, never having resided in this State, but owning a tract of land in Warren county. The Probate Court in Washington county, Indiana, granted administration of his estate to Sarah McKinney, and Hugh Kelso. On the 8th November, 1824, the said administrators filed their bill in the Chancery Court of said county of Washington, alleging that the estate was insolvent, and praying for the appointment of commissioners to settle said estate, according to the statute laws of that State regulating the settlement of insolvent estates. On the 7th April, 1827, the said commissioners made their report, in which they set out all the debts of the estate to be $1856 74, and report the assets as amounting to $127 62, and declare a dividend accordingly, of two cents and some mills to the dollar. On the 8th December, 1828, the report of the commissioners was approved. In the meantime, and to the grant of letters in Missouri, eight of the children of said Robert McKinney sold their interests in the land in Warren county to Frederick Griswold, the defendant in error, and two of them sold to Alexander McKinney.

Several of the claims against the estate of Robert McKinney, which were allowed by the commissioners in Indiana, amounting to about sixteen hundred dollars, were purchased by Alexander McKinney, who thereupon procured James Hughes to take out letters of administration in Warren county, in this State. There was no other property of Robert McKinney in Warren county, except the land...