Chapman v. McIlwrath

• Decision Date: 31 October 1882
• Citation: 77 Mo. 38
• Parties: CHAPMAN, Appellant, v. MCILWRATH.
• Court: Missouri Supreme Court

77 Mo. 38

CHAPMAN, Appellant,

v.MCILWRATH.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

AFFIRMED.

On the 9th day of December, 1869, Michael L. McGuire, being then free from debt and contemplating marriage, took out a policy of insurance on his life, payable in twenty years, or sooner if he should sooner die, to himself, his executors, administrators or assigns. On the 20th day of February, 1870, he married and immediately thereafter delivered the policy to his wife, to be her exclusive property as she alleged. She retained the policy, and received and kept the receipts for premiums paid from time to time, until the death of her husband on the 15th day of March, 1873, shortly after which she delivered the policy to the defendant, McIlwrath, who had been appointed administrator of McGuire's estate. McIlwrath collected the policy, used a portion of the proceeds to pay debts of the estate, and in his accounts as administrator charged himself with the balance as assets of the estate. He afterward applied to the probate court for a credit for this balance, alleging that it was the money of Mrs. McGuire, and not of the estate. On the proofs produced the court granted the application. On the 16th day of July, 1875, he made final settlement.

At the time of his death McGuire was surety on the bond of Wm. W. Walden, as guardian and curator of the plaintiff Chapman. McGuire had signed this bond on the 20th day of July, 1871. On the 21st day of October, 1873, Walden made a settlement of his accounts as curator, by which it appeared that he was indebted to his ward. This indebtedness was never paid, and Walden and the other surety on his bond being insolvent, plaintiff brought this suit, as a creditor of the estate of McGuire, to set aside the final settlement of that estate on the ground of fraud. Defendant had judgment and plaintiff appealed.

James M. Davis and Lewis A. Chapman for appellant.

B. B. Gill and A. S. Harris, for respondent.

RAY, J.

The pleadings in this case were as follows:

The petition states that on the 20th day of July, 1871, one William W. Walden was appointed, qualified and gave bond as the guardian and curator of appellant, who was and continued to be a minor until the 1st day of September, 1874; that said Walden gave bond as such guardian and curator in the sum of $1,200, with the condition that said Walden would faithfully discharge his duties as such guardian and curator; that the sureties on said bond were one John D. Sherman and the said Michael L. McGuire, deceased; that on the 21st day of October, 1873, said Walden, as such guardian and curator, made his first and only settlement in the probate court of Livingston county, by which it appeared that said Walden had of appellant's estate the sum of $592.87 of the date of July 24th, 1872; that on the 15th day of March, 1873, the said Michael L. McGuire died, and the respondent William McIlwrath was appointed and qualified as the administrator of said McGuire's estate; that respondent took charge of said estate, and on the 29th day of April, 1874, he made his first annual settlement, on which settlement he charged himself as such administrator with $4,648 as the proceeds of a certain insurance policy on the life of his intestate. By said settlement respondent admitted that he had in his hands as such administrator, the sum of $3,666.65; that afterward, about the 15th day of February, 1875, respondent secretly appeared in the probate court and made affidavit that said life policy was intended to be for the benefit of said Michael L. McGuire's widow; that at said time the said widow of said deceased McGuire was a near relative of respondent, and that said respondent was acting in said matter as the attorney and agent of said widow; that respondent knowingly and fraudulently, represented to said probate court, that said sum of $4,648, proceeds of said life insurance policy, did not belong to said estate, but to the said widow, which representation was in conflict with his sworn inventory and first settlement, and was false; that said representation was made for the purpose of benefiting said respondent's relative and defrauding plaintiff out of the amount due by said Walden, and for which said estate was bound, and the whole of which amount due appellant said estate would have to pay, as said Walden and John D. Sherman were totally insolvent; that after said respondent, as administrator of said estate, had inventoried and charged himself with the proceeds of said life insurance policy, he paid debts against the estate of said deceased McGuire to the amount of $1,000, and paid them all out of the proceeds of said life insurance policy; that the probate court, believing the representations to be true, ordered that respondent have credit for said money so received from the insurance on said life policy; and on the 16th day of July, 1875, defendant made final settlement and was discharged; that he did this while the appellant had a suit pending in the circuit court of Livingston county, Missouri, on said bond, and of which suit respondent had notice; that said suit on the bond was dismissed because the circuit court had no jurisdiction, and appellant commenced this suit; that said policy was made payable to said Michael L. McGuire, and his legal representatives, and that respondent, as administrator, rightfully received the proceeds; that without the proceeds of said policy the assets of said estate were insufficient to pay the claims against said estate in the first, second and third classes; that respondent's action in the matter was intended to defraud appellant.

Respondent's answer denies all knowledge or information sufficient to form a belief as to guardianship or curatorship of said Walden, or that he ever gave bond or made settlement; denies that he ever appeared in the said probate court, or ever secretly transacted any business, but alleges that all his conduct as administrator and all of his statements as such were open and fair, and that his final settlement and discharge as such administrator were made with and by said court and said court was fully advised of all the facts affecting the title to said policy, and of all the acts and transactions of the respondent as such administrator; that the said policy of insurance was effected by the said M. L. McGuire while he and Mary McGuire (his widow) were engaged to be married to each other, and that the object and purpose of said Michael in effecting such policy was, and he so stated to the said Mary during their engagement, to provide for her as his intended wife a suitable fund for her support and maintenance as his wife and widow in case she should survive him, said fund to be held by her for her sole and separate use; and respondent says that in pursuance of and in order to secure the accomplishment of his aforesaid object and purpose he did, immediately upon his marriage with said Mary, assign by delivery the said policy to her with the intent of investing her, to her sole and separate use, with the exclusive right and title thereto, and to all the proceeds and assets thereof; that on the death of said McGuire, she (Mary McGuire), the widow, placed the said policy in the hands of the respondent for him to collect the proceeds of said policy, and that he received the said policy with the understanding and agreement between them, that as between her and respondent she was the owner of such policy and lawfully...