Dewey v. Jenkins, KCD

• Decision Date: 01 May 1978
• Docket Number: No. KCD,KCD
• Citation: 567 S.W.2d 382
• Parties: Richard A. DEWEY, Appellant, v. Charlotte M. JENKINS et al., Respondents. 28882.
• Court: Missouri Court of Appeals

Page 382

567 S.W.2d 382

Richard A. DEWEY, Appellant, v. Charlotte M. JENKINS et al., Respondents.

No. KCD 28882.

Missouri Court of Appeals,Kansas City District.

May 1, 1978.

Motion for Rehearing and/or Transfer Denied June 12, 1978.

Application to Transfer Denied July 24, 1978.

Gregory C. Lucas, Strop, Watkins, Roberts & Hale, St. Joseph, for appellant.

Don Pierce, Downs & Pierce, St. Joseph, for respondents.

Before SHANGLER, P. J., WASSERSTROM, J., and MASON, Special Judge.

SHANGLER, Presiding Judge.

This suit began as an action to partition the real estate which devolved by law to the three children of the decedent Acle Dewey. One of the three children, Charlotte M. Jenkins, brought a counterclaim which alleged that the decedent father had advanced $11,592.94 to Richard A. Dewey, another of the children, against his inheritance but that through his fraud and deception the advancement was not taken into account at the time of the settlement of the estate. The counterclaimant Jenkins asked the court to offset the advancement to son Dewey in the distribution of the proceeds of the partition sale to the three children, Jenkins, Dewey, and Rovilla Hartman, the other heir.

The reply of son Dewey to the counterclaim asserted two defenses: (1) that the rights of the heirs were conclusively determined by the probate court order of distribution and discharge of administrator which now stands as res judicata to the claim for advancement, and (2) that the claim is otherwise barred by a release of November 26, 1974 executed by all the parties.

At the trial there was evidence by Marion Jenkins, administrator of the Dewey estate, and husband of counterclaimant Charlotte Jenkins, that the estate was closed and his duties discharged on March 7, 1975, but that four months later on July 3, 1975, he found a document in the business office of decedent Acle Dewey of an advancement agreement between the decedent and his son, Richard Dewey. The document recited material, labor, and loans in the amount of $11,592.94 received by the son from the father for the construction of a home:

"The indebted amount above to be cancelled out as Paid by Gift, September 30, 1970, as part of my inheritance which will be determined at a later date."

The signatures of son Richard, his wife Helen, and father Acle Dewey were affixed to the instrument.

The witness Marion Jenkins testified that during the course of administration he had numerous conversations with Richard Dewey as to money he might owe the estate and was told, variously, that he borrowed money from the father to build a house which he then repaid by a bank loan and, variously, that the money was an outright gift. The wife of Richard Dewey also told him the money was a gift. Richard Dewey emphatically denied there was any writing of the transaction.

Another heir, Rovilla Hartman, sister of Richard Dewey, confronted him with a conversation with the father that he had advanced $12,000 to Richard to be repaid from his inheritance. Richard told her the amount had been repaid, and she believed him and gave the matter no further thought.

The other heir, Charlotte Jenkins, talked to Helen, wife of Richard Dewey, about the possibility that the father had made an advancement of inheritance to Richard. Charlotte asked her sister-in-law whether the money used to build their home was intended as part of the expectation from the estate, but was told with emphasis that the father had been repaid with money from the bank. Charlotte accepted the explanation and dismissed the matter completely.

The decedent, Acle Dewey, was a building contractor during his lifetime and operated as Ace Dewey, Inc. The administrator, Marion Jenkins, testified that their corporate records were not complete, nor did they show how the Richard Dewey house had been paid for completely. This uncertainty led him to inquire of Richard Dewey as to repayment and it was to this inquiry that Richard had given his assurances that he was no longer indebted. The document between Richard and Helen Dewey and Acle Dewey, found after the estate was formally closed, was discovered by Marion Jenkins lodged among some workbooks, and had eluded his diligent searches (as well as those of Helen Dewey whom he trusted to assist him) during his administration of the estate.

There was objection to the testimony of the advancement from the decedent father to son Richard on the ground that such evidence was precluded by the probate court judgment which was res judicata to the issue of advancement which was a demand the administrator could have brought in the probate proceedings. The objection moved that the evidence constituted a collateral attack on a final judgment and should be stricken. The trial court found Richard Dewey had overreached his two sisters by concealment of the fact of the advancement from them. The judgment entered charged Richard with the advancement, divided the proceeds from the partition equally among the three heirs, and then on principles of hotchpot, allocated one-half of the advancement to each of the sisters from the share of the son, and impressed the judgment upon the partition res.

The first point on appeal contends that the counterclaim does not plead a direct action in equity to set aside the probate court judgment, but only a collateral attack on that prior adjudication, and so does not support the relief granted.

A probate court adjudication which finally settles and distributes an estate and discharges the administrator constitutes a final judgment and is impregnable to collateral attack. Gorg v. Rutherford, 31 S.W.2d 585, 589(8-11) (Mo.App.1930). Such a final judgment, as any other, may be set aside by equity in a direct proceeding for that purpose where the fraud of an adversary prevents the complainant from presentation of the full strength of his case. Stark v. Cole, 373 S.W.2d 473, 477(9-11) (Mo.App.1963); 49 C.J.S. Judgments § 371. The fraud which prompts equity to act must be a deception in the procurement of the judgment and extrinsic to the issues adjudicated at the trial. Walther v. Null, 233 Mo. 104, 134 S.W. 993, 1002(6) (Banc 1911). The complaint of fraud, to be heard, must be unmixed with the negligence or want of due diligence of the party who seeks relief to act on knowledge to prevent the entry of judgment. Wuelker v. Maxwell, 70 S.W.2d 1100, 1102(4) (Mo.App.1934).

The counterclaim recites that Acle Dewey died intestate, left property, and was survived by the three children to each of whom an undivided one-third of the partition res descended by law. The counterclaim pleaded also that during his lifetime Acle Dewey agreed to advance $11,592.94 to his son Richard against his inheritance, but that through the deception and nondisclosure of son Richard the sum advanced was not taken into account in the settlement of the Acle Dewey estate. The counterclaim concludes with the request that the proceeds from the partition sale allocable to son Richard be set off in equal shares to the sisters in the amount of the advancement.

No doubt, the counterclaim in terms does not plead direct relief against the probate court judgment. There is no prayer that the order of final settlement, distribution and discharge of the administrator be set aside. That judgment comes into question only by adversion. Yet, a court of equity will not allow a formal mispleading to prejudice the substance of a claim, especially in cases of fraud. Pomeroy, Equity Jurisprudence § 910 (5th ed. 1941). In equity practice, no less than at law, the jurisdiction to enter a judgment rests on a pleading which states the theory of the case sufficiently to inform the adversary and the court the questions presented for decision. Spitcaufsky v. Hatten, 353 Mo. 94, 182 S.W.2d 86, 95(8, 9) (Banc 1944). But the rules of pleading do not apply with the same stringency to causes in equity when to do so impairs the inherent function of equity to give relief. That is only to say that equity looks to the substance of a claim not the form. Melvin v. Hoffman, 290 Mo. 464, 235 S.W. 107, 114(2-4) (Banc 1921); 30A C.J.S. Equity § 179.

The power of equity to grant relief against a judgment procured by fraud is inherent and peculiarly a matter of such jurisdiction. Johnson Timber & Realty Co. v. Belt, 329 Mo. 515, 46 S.W.2d 153, 155(4-6) (1932); 49 C.J.S. Judgments § 372. Equity is quick to redress a fraud the law cannot remedy. Strothcamp v. Sandy Ford Ranch, Inc., 440 S.W.2d 193, 195(1, 2) (Mo.App.1969). In the conferral of such a relief exclusively within its power to give, equity knows no limits but shapes the remedy to meet the demands of justice without regard to any determined form. Pomeroy, Equity Jurisprudence, § 910 (5th ed. 1941); McClintock on Equity, § 14 (2d ed. 1948). Equity, however, rests on conscience and so will not render a decree, the circumstances considered, incompatible with fairness to the adversary.

The litigation to which the counterclaim is made is an action to partition real estate among the heirs at law. The statutory mode of such a proceeding (Chapter 528) does not preclude equity jurisdiction (Spitts v. Wells, 18 Mo. 468 (1853)) but, rather, the partition court is vested with chancery powers to adjudicate equitable claims. Devoto v. Devoto, 31 S.W.2d 805, 807(2-6) (1930) (transferred); Devoto v. Devoto, 39 S.W.2d 1083, 1084(1, 2) (Mo.App.1931). Thus, the counterclaim which seeks to redress a fraud from the proceeds of the sale merely invokes the latent equity powers of the partition court.

The counterclaimant rests her standing before equity on allegations that: she is an heir equally with her brother and sister to the estate of the deceased father; that there was an advancement by the father to the brother against his inheritance; that because of the deception and non-disclosure of the son the sum advanced to him was not taken into account at the settlement of the estate; and that the amount thus...