Fitzpatrick v. Stevens

• Decision Date: 02 October 1905
• Parties: FITZPATRICK v. STEVENS.
• Court: Missouri Court of Appeals

89 S.W. 897

114 Mo. App. 497

FITZPATRICK v. STEVENS.

Kansas City Court of Appeals. Missouri.

October 2, 1905.

1. EXECUTORS AND ADMINISTRATORS—CLAIMS —ALLOWANCE—VERIFICATION.

Under Rev. St. 1899, § 195, providing that the court shall not allow any claim against any estate, unless the claimant first make oath in open court or file his affidavit that he has given credit to the estate for all payments and offsets and that the balance claimed is justly due, etc., such verification is a condition precedent

to the court's exercise of jurisdiction to allow the claim.

2. SAME—SETTING ASIDE ALLOWANCE—EQUITY JURISDICTION.

Where the holder of a note which had been fully paid filed the same against the maker's estate, and made a false affidavit that the whole amount thereof was due over and above all offsets, as required by Rev. St. 1899, § 195, and the court allowed the same against the estate, the administrator having no knowledge or information leading him to believe that the note had been paid, a suit in equity was thereafter maintainable by him to set aside the judgment.

3. SAME—ALLOWANCE BY FRAUD—REMEDIES.

Rev. St. 1899, § 214, provides that if any administrator, within four months after any demand shall have been allowed, shall file in the probate court an affidavit that he has good reason to believe that such demand has been improperly allowed, etc., the court shall vacate the order of allowance, try the matter anew, and allow or reject such demand, as shall be right, etc. Held, that the remedy provided by such section was not exclusive, but was concurrent with that afforded by a suit in equity to vacate a judgment obtained by fraud.

4. SAME—LIMITATIONS.

Rev. St. 1899, § 4273, limiting actions for relief on the ground of fraud to five years, applies to a suit in equity to set aside a judgment allowing a claim against a decedent's estate for fraud.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by George W. Fitzpatrick, as administrator of the estate of J. K. Miller Stevens, deceased, against Ellen S. Stevens, as executrix of the estate of Edward A. Stevens, deceased. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Rehearing denied November 6, 1905.

Noyes, Heath & Walls, for appellant. Walsh & Morrison and Horace H. Blanton, for respondent.

JOHNSON, J.

This is a suit in equity to set aside a judgment charged to have been concocted in fraud. The court, upon hearing, granted the relief asked, and defendant appealed.

Plaintiff introduced evidence tending to sustain the following facts: In 1894 J. K. Miller Stevens executed and delivered to his brother Edward A. Stevens his promissory note for $400, bearing interest at 8 per cent. per annum. During the following year the payee accepted from the maker a steel safe in full payment of the note and interest. Edward, however, did not surrender the note, assigning as his reason that he had lost it. On October 10, 1901, J. K. Miller Stevens died in Jackson county, and plaintiff was duly appointed administrator of his estate. Afterwards, on December 16, 1901, Edward presented the note to the probate court for allowance, claiming that the whole of the principal and interest, amounting in all to $623.50, was past due and unpaid, and supported his demand by filing his affidavit as required under Rev. St. 1899, § 195. The administrator (the plaintiff here) appeared; but, not being advised of any fact indicating that the note had been paid, offered no defense, and judgment was given demandant for the amount stated, from which no appeal was taken. Some months thereafter (just when is not shown) administrator first learned from another brother of the deceased of the facts and circumstances of the payment of the note, but took no action affecting the judgment until an effort was made by the executrix of the estate of Edward (who died in the meantime) to enforce its collection. Plaintiff then began this proceeding on December 7, 1903.

We find, as did the learned trial judge, that the weight of the evidence adduced is in favor of the plaintiff's assertion that the debt was paid in full during the lifetime of the intestate, and that Edward, designing to defraud the estate, presented what he knew to be a fictitious demand and procured the exercise by the probate court of jurisdiction over it through a false affidavit, by which practice he intended to deceive both the plaintiff and the court. Further we are of the opinion that plaintiff was not in any manner negligent in failing to offer the defense of payment, for the reason that he did not know of the fact, nor of any other facts, to incite special inquiry and investigation. Any person of ordinary prudence in his position probably would have been misled, as was he, into believing the demand genuine when confronted by the note, upon which it was founded, bearing the signature of the intestate, and the affidavit of his brother, its holder, that it evidenced an unpaid debt, against which there was no defense. But, whether his conduct may be denominated negligent or careful, this action cannot be maintained if it appears that Edward's fraud was confined to matters which were, or could have been made, the subject of juridical inquiry in the proceedings before the probate court. Fraud in such respects may be of the most flagrant, even criminal, character, but relief will be denied in all actions, except that in which the judgment was rendered, and there only upon proper steps taken in the time prescribed by law. The principle upon which the rule is founded ignores the fact of the degree of care actually exerted by defendant...