Clark v. Bettelheim

• Decision Date: 01 April 1898
• Citation: 46 S.W. 135,144 Mo. 258
• Parties: CLARK et al. v. BETTELHEIM.
• Court: Missouri Supreme Court

46 S.W. 135

144 Mo. 258

CLARK et al. v. BETTELHEIM.

Supreme Court of Missouri, Division No. 1.

April 1, 1898.

JUDGMENT — RES JUDICATA — EJECTMENT — EQUITABLE DEFENSE — INSOLVENT ESTATE — ALLOWANCE TO MINOR.

1. An allowance of a claim against an estate in the manner required by the statute is a judgment having the conclusiveness of a judgment of a court of general jurisdiction, and is not subject to collateral attack.

2. A judgment in a probate court was in favor of the administrator against the estate of the deceased. A judgment in an ejectment suit concerning the same subject-matter was in favor of the heirs of deceased against the administrator. Held that, as there was no privity between the parties, the administrator was not estopped by the ejectment suit to assert his former judgment.

3. In order that a judgment based on an equitable defense set up in an ejectment suit shall be conclusive in a subsequent suit between the same parties concerning the same title, the equitable defense must be tried and adjudicated by a tribunal having equitable jurisdiction.

4. Under Rev. St. 1879, § 255, providing that the probate clerk may allow for such support of a minor child of intestate not otherwise provided for, as will not prejudice the rights of creditors, such allowance to be treated as a distribution to the minor, an administrator cannot recover for expenses incurred for such minor, where the estate is insolvent, the expenses charged to the whole estate, and the court had never made any order of allowance.

5. Under Rev. St. 1879, § 131, providing that the court may order necessary repairs to be made to improvements on real estate of a decedent, by the administrator, no recovery can be had for repairs where no order was obtained.

Appeal from circuit court, Linn county; W. W. Rucket, Judge.

Appeal by Dora B. Clark and others from a judgment on the final settlement of B. J. G. Bettelheim, administrator of the estate of Jared W. Clark, deceased. Reversed.

A. W. Mullins and Harry K. West, for appellants. Lander & Johnson and S. P. Huston, for respondent.

BRACE, P. J.

This is an appeal from a judgment of the circuit court of Linn county on the final settlement of respondent, as administrator of the estate of Jared W. Clark, the father of the appellants, which settlement was filed in the probate court of Linn county at the February term, 1891, of said court, showing a balance due respondent of $2,791.60, and to which the appellants then and there filed written exceptions. Thereupon, the probate judge being a material witness in the case, the same was certified to, and heard by, the said circuit court, as provided by statute (Rev. St. 1889, § 3403). The exceptions are, in substance, as follows: (1) That said administrator has failed to inventory, appraise, and account in his settlements for 80 head of cattle, of the value of $4,000, and 3,000 pounds of wool, of the value of $1,000, the property of his intestate, but converted the same to his own use. (2) That he has taken credit in his said settlement for the sum of $1,944.78, on account of a certain promissory note given by the said Jared W. Clark, deceased, in his lifetime, to one Flora E. Hodge, to which he has no title, and which was paid off and discharged by the widow of said deceased with money of the estate before the said Bettelheim became administrator thereof, and was so adjudicated by the circuit court of Linn county, at the June term, 188_, of said court, in a case wherein these exceptors were plaintiffs, and the said Bettelheim and one Wyath were defendants. (3) That he has taken credit in said settlement for the sum of $982.42 on account of the "Kerr" note, which was fully paid off and discharged in the lifetime of said Jared W. Clark, deceased, with his own money, and to which the said Bettelheim has no title, but which he, nevertheless, by fraud procured to be allowed by the probate court as a demand against the estate of said deceased. (4) Except to the credits taken in his settlements in the sums of $270.50 and $18, claimed by the administrator to have been uncollected on the note of E. J. Scott, inventoried at $300, with interest. (5) To the credit, amounting to the sum of $168.50, taken in his fourth annual settlement on account of moneys paid for Gertie and Eva Clark, not chargeable to said estate. The circuit court sustained the fourth exception, and charged the administrator with $300 and interest, the amount of the Scott note as per inventory, and overruled all the other exceptions, and the exceptors thereupon appealed to this court. The exceptions will be considered in their order.

1. After a careful examination of all the evidence in the case, we find the ruling of the court on the first exception sustained by the evidence. So far as the charge on account of wool is concerned, that is not now insisted upon; and by a preponderance of the evidence it is shown that the cattle with which it is sought to charge the administrator were his own cattle.

2. As to the second exception, it appears from the undisputed evidence that on the 12th day of October, 1881, Jared W. Clark executed his promissory note to Flora L. Hodge, of the state of Ohio, for the sum of $1,000, payable on or before October 12, 1883, with compound interest at the rate of 8 per cent. per annum as part of the purchase price of a tract of land which the said Hodge had conveyed to said Clark; that to secure the payment of said note and another for the sum of $700, of same date, payable on or before October 12, 1882, the said Clark executed a deed of trust of the same date in favor of the said Flora L. Hodge to said land; that Clark, in his lifetime, paid off the $700 note; that on the 23d of April, 1883, he died, leaving the $1,000 note unpaid in the Bank of Brookfield, to which it had been sent for collection at his request: that on the 3d of May, 1883, Bettelheim paid the bank the sum of $1,043.35, the amount due on said note, less a rebate of $50, and that thereupon said note was taken up, and thereafter held by him; that, after the death of said Clark, his widow remained in possession and control of the estate without administering until the 23d of August, 1883, when letters of administration were granted on said estate to the respondent, Bettelheim; that on the 13th of November, 1884, he presented to the probate court, for allowance against said estate, a demand based on said note, and the Kerr note, which is the subject of the third exception; and thereupon, in a proper proceeding, the same was in due form allowed as a demand against said estate, and assigned to the fifth class of demands. Afterwards, on the 5th day of July, 1887, at a sale made by the trustee in said deed of trust, the said Bettelheim became the purchaser of said real estate for the sum of $1,726, and received a trustee's deed therefor. Afterwards the appellants brought an action in ejectment in common form against one Wyatt, tenant in possession under said Bettelheim, to recover said real estate, to which the said respondent became a party on his own motion, and defended the same. In his answer, after a general denial, and a special plea setting up the title acquired under the trustee's deed, in which it is averred that by mistake the land was advertised to be sold in a newspaper published in the town of Brookfield, instead of a newspaper published in the town of Linneus, as provided in said deed of trust, he set up as a further special plea the giving of said note and deed of trust by the said Clark upon the real estate sued for, and alleged, in substance, that said note was taken up by him in pursuance of an agreement entered into between himself and the said Clark in his lifetime, by which he was to take up and hold said note and deed of trust as security for the money advanced by him for that purpose; that, said debt remaining long past due and unpaid, he entered into possession under said contract and deed of trust after condition broken, and holds possession by virtue thereof, and is, by virtue of the premises, subrogated to all the rights of the mortgagee therein; that no part of the money so advanced has ever been repaid to him; "that he is ready and willing and has offered to the plaintiff to surrender to them all right, title, and interest which he has in said property upon the payment to him of the money so advanced, with interest thereon, and now herein is willing and offers to the plaintiffs the privilege to so redeem said property from said mortgage," and prays to be discharged, and for any affirmative relief that the court can award. In reply to this...