Foster v. Pettijohn

• Decision Date: 12 July 1948
• Docket Number: 40670
• Citation: 213 S.W.2d 487,358 Mo. 84
• Parties: Cora Wagner Foster, Appellant, v. James H. Pettijohn, Executor of the Estate of Mina Wright, Deceased, and E. F. Kearney, Judge of the Probate Court of Holt County, Missouri, Respondents
• Court: Missouri Supreme Court

213 S.W.2d 487

358 Mo. 84

Cora Wagner Foster, Appellant, v. James H. Pettijohn, Executor of the Estate of Mina Wright, Deceased, and E. F. Kearney, Judge of the Probate Court of Holt County, Missouri, Respondents

No. 40670

Supreme Court of Missouri

July 12, 1948

Motion for Rehearing or to Transfer to Banc Overruled September 13 1948.

Appeal from Holt Circuit Court; Hon. Fred H. Maughmer Judge.

Affirmed.

Horace Merritt for appellant.

(1) The judgment of the trial court sustaining motion to dismiss plaintiff's petition on the ground that she was barred by statute of limitations is against the law and against the facts as to the suit being barred against the defendant Mina Wright successor to Petree for the reason as set forth by the trial court that it was not filed against her until after she had made final settlement, for such a holding is against the law as held in the case herein cited below under which holding even if this had been plaintiff's first suit to be decreed the adopted child and pretermitted heir of George Wagner would not be barred by statute for by that holding the court held that in that case where the plaintiff had waited seven years after final decease and final settlement the suit for adoption would be maintained. Johnson v. Autry, 5 S.W.2d 409. (2) The judgment is also plainly against the holding of the Supreme Court in the case of this same plaintiff v. Petree see: Foster v. Petree, 149 S.W.2d 851, 347 Mo. 992. (3) The judgment is against the facts and the law as held in the cases cited below holding that where in suit at law for balance due plaintiff wherein the defendant did not plead that the settlement made was compromise but only pleaded statute of limitations but by demurrer as in this case admitting that was not a compromise or settlement in full the court held the suit could be maintained, and was not barred by statute of limitations; and it was not required by law that suit should be brought to set aside the settlement of only a part of what was due to plaintiff: State ex rel. Cardwell v. Stewart, 111 Mo.App. 478; Putnam v. Boyer, 173 Mo.App. l.c. 399; Wessel v. Walker & Co., 196 Mo.App. l.c. 592; Metropolitan Paving Co. v. Investment Co., 309 Mo. l.c. 652.

Pettijohn & Eiser for respondents.

Bohling C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

This is a proceeding in equity wherein Cora Wagner Foster seeks the enforcement of an alleged oral contract of adoption; that is, to be decreed the adopted daughter of George Wagner (who died in 1919), and other relief, claiming an interest approximating $ 25,000 to $ 30,000 in decedent's estate, which she alleges was not accounted for or, principally, was wrongfully distributed. This suit was brought May 18, 1946, against Mina Wright, as an individual, and Mina Wright, administratrix cum testamento annexo de bonis non of the estate of George Wagner, deceased, and Mina Wright, executrix of the estate of Frank Petree, deceased; and E. F. Kearney, Judge of the Probate Court of Holt county, Missouri. Separate motions of the several defendants to dismiss plaintiff's original petition and thereafter her amended petition were sustained. The grounds, among others, alleged were that the respective petitions failed to state a claim against defendants; that plaintiff's claims were barred by limitations and that the respective petitions improperly united several claims against defendants. Plaintiff appealed.

Mina Wright died pending the appeal. Plaintiff had the cause revived against James H. Pettijohn, executor of the estate of Mina Wright, deceased, who entered his appearance; and on April 28, 1948, plaintiff submitted her appeal for determination.

Plaintiff's original cause of action had been twice appealed. ^[1] The instant petition, as has been observed of prior petitions, is long and verbose in averments, setting forth evidence and conclusions of the pleader in addition to facts, and the claims or issues are confused. (See 235 Mo.App. l.c. 416, 141 S.W. 2d l.c. 132.) Section 35 of the new Civil Code (Laws 1943, p. 369, Mo. St. Ann., Sec. 847.35 ^[2]) provides that: "Each averment of a pleading shall be simple, concise, and direct." Section 36, Id., provides: "A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. . . ." The Code requires a statement of the constitutive facts, not the conclusions of the pleader, showing claimant entitled to relief, as well as a demand for judgment for the relief desired. Langenberg v. St. Louis, 355 Mo. 634, 640[1], 197 S.W. 2d 621, 624[1]. Giving consideration to the Code provisions, we endeavor to limit our statement to the essential averments of fact.

Plaintiff alleges George Wagner orally agreed to adopt her about 1881, when she was about two years of age, and she was reared in the home of said Wagner and his wife and performed her part of the agreement; that Wagner died testate July 3, 1919, the owner of real and personal property; that his will gave most of his estate to his widow; that Wagner had failed to file letters of adoption and plaintiff was not mentioned or provided for in his will; that on March 2, 1923, plaintiff sued Frank Petree, administrator with the will annexed of said Wagner's estate, and the beneficiaries named in said will and heirs of said Wagner, praying to be decreed Wagner's adopted child and pretermitted heir; that Petree represented certain notes in said estate were worthless and plaintiff's share as the child of said Wagner would not exceed $ 5,000, and agreed to pay plaintiff $ 5,000 and to give judgment of adoption and to pay her a child's share in said estate; that said administrator paid plaintiff's attorneys $ 5,000 but no decree that plaintiff was said Wagner's adopted child was ever entered; that thereafter said worthless notes were paid, said Petree receiving about $ 29,000; that plaintiff learned about April 1, 1932, of said payment and that the judgment had not been entered; that on August 26, 1936, "within ten years from the date of payment to her of said $ 5,000" and within five years of her discovery of said fraud, she sued said administrator and the beneficiaries and heirs aforesaid, praying for a "decree establishing her status as the adopted daughter and pretermitted heir of said" Wagner and awarding her the remainder of said estate, alleging fraud on the part of said administrator respecting said "worthless notes." A demurrer was sustained to plaintiff's said petition. Plaintiff appealed to the Kansas City Court of Appeals, which court affirmed said judgment (235 Mo.App. 414, 141 S.W. 2d 131), but the Supreme Court, upon certification, reversed the judgment and remanded the cause for trial upon the merits (347 Mo. 992, 149 S.W. 2d 851). Frank Petree, administrator aforesaid, died soon thereafter. Mina Wright thereupon became administratrix cum testamento annexo de bonis non of said Wagner's estate. She filed an answer denying plaintiff was the adopted child of said Wagner. On October 8, 1941, plaintiff voluntarily dismissed said original suit.

Plaintiff (quoting) "did file said cause of action over again within twelve months," to wit: on October 5, 1942, against Mina Wright as administratrix aforesaid. Said administratrix filed a plea in abatement alleging that the estate of said Wagner had been fully administered and defendant discharged as administratrix thereof. The court sustained said plea and entered judgment dismissing plaintiff's said petition. This judgment was affirmed by the Kansas City Court of Appeals (187 S.W. 2d 974).

In addition to the principal cause of action set forth in plaintiff's original suit, plaintiff's instant amended petition mentions additional claims. It charges Oklahoma deed records show that Petree, as administrator aforesaid, sold certain Oklahoma lands belonging to the estate of George Wagner, deceased, in 1927, and received $ 5,100 therefor; that Petree misappropriated said money, and that Mina Wright, as administratrix aforesaid, knew said fact when she received her discharge as administratrix. There is no charge that she ever received any of said money. Another charge is that about six months after her discharge as administratrix aforesaid, Mina Wright sold "as administrator in Missouri and not in Oklahoma," the interest of George Wagner, deceased, in certain Oklahoma real estate for "a consideration of $ 10.00 subject to taxes and incumbrances" and failed to account therefor.

Plaintiff prayed that she be decreed the adopted daughter of said Wagner; that the orders of the probate court affecting said estate be declared void, including, among others specifically mentioned, the order and judgment giving effect to the settlement of plaintiff's share and the approval of the final settlement of said estate; that Mina Wright, as executrix of the estate of Frank Petree, deceased, account for the aforementioned $ 29,000 collected by Petree and the aforesaid $ 5,100 Petree received for Oklahoma real estate, and also the $ 10 she failed to account for, et cetera, and that plaintiff be decreed the owner of the assets in said estate.

Plaintiff was not a natural child of testator and his will did not mention or provide for her. Plaintiff, to prevail, must be in a position to establish herself as the adopted child of deceased and prove her charges of fraud against Frank Petree. Section 1014, provides that actions for fraud are to be brought within five years, to wit: "fifth, an action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time...