Hill v. Wade
| Decision Date | 06 November 1922 |
| Docket Number | 249 |
| Citation | 244 S.W. 743,155 Ark. 490 |
| Parties | HILL v. WADE |
| Court | Arkansas Supreme Court |
Appeal from Independence Chancery Court; Ira J. Mack, Chancellor affirmed.
Decree affirmed.
Samuel M. Casey, for appellant.
The order of the probate court declaring plaintiff dead was void for the reason it fails to show he was a resident of this State at the time of his supposed death. 135 Ark. 112. It is also void because the court had no jurisdiction to make it. 40 Am. Rep. 12.
Unless the court pursues the statute (secs. 225 to 228, C. & M Digest) an order of this kind is void. 54 Ark. 70.
The receipt of money by an administrator is no discharge of a debt. 154 U.S. 34.
Jno. B. & J. J. McCaleb and Cole & Poindexter, for appellee.
Appellant's complaint shows that he lived in the State of Oklahoma. The statute of limitations applies to nonresidents. C. & M. Dig § 6962.
This was an action to set aside for fraud a final settlement of an administrator. The five year statute applies, C. & M. Dig § 6960.
The statute of limitations begins to run on the confirmation of an administrator's account, and a complaint to set it aside for fraud cannot be heard eleven years afterwards. 42 Ark. 491.
The statute begins to run against an act of fraud of an administrator from the time of his discharge. 46 Ark. 25, and thirteen years thereafter is too long to wait to bring suit to set it aside. 48 Ark. 543.
All suits must be brought within the period prescribed by the law of the State in which the action is instituted. 96 Ark. 446; 18 Ark. 384.
This appeal is from the decree of the chancery court of Independence County sustaining a demurrer to a complaint containing the following allegations. Plaintiff is a nephew of E. J. Ladd, who died intestate, about the year 1905, in Independence County. W. M. Wade was appointed administrator of the estate, and made final settlement thereof on May 4, 1908, which was approved and confirmed on November 4, 1908. The complaint was filed September 10, 1920, and plaintiff alleged he had only learned his uncle was dead a few months prior to that date, and that he did not know anything of the administration of the estate and has received no part of the portion due him as an heir-at-law. That the next of kin of the intestate were his brothers and sisters and the children of deceased brothers and sisters, and that he was the only child of his mother, who was one of the sisters, and that his mother died several years before the death of the intestate, and that plaintiff's share was a one-ninth interest. It was further alleged that "defendants Wade and Wheeler bought up the shares of all the heirs except himself and two others, and, although they knew, or could have known with reasonable investigation, that plaintiff was not dead, and although in the final settlement filed by the defendant Wade as administrator he expressly recognized the right of plaintiff to a one-ninth interest in said estate, as well as Joe Ladd, whose whereabouts were then unknown, yet subsequently he and the defendant Wheeler secured an order of the probate court of Independence County authorizing him, as administrator, to pay out the amount of said estate belonging to the plaintiff and Joe Ladd to the other heirs-at-law, on the representation made to the court that the plaintiff and Joe Ladd had been absent from the State of Arkansas for five years without their whereabouts being known." A copy of the order of the probate court was made an exhibit to the complaint. It was further alleged in the complaint that Wade paid to himself 6/42 and to the defendant Wheeler 33/42 of the estate and 3/42 to the other heirs, and that, pursuant to the order of the probate court, I. N. and J. F. Barrett, who were also made defendants, had executed a bond to the administrator for the said Wheeler, guaranteeing the return of the money paid him if the plaintiff or Joe Ladd should turn out to be alive and claim their interests.
It was also alleged in the complaint that the order of the probate court was void, as the court had no jurisdiction to make the order, and that the action of the defendants Wade and Wheeler in securing said order was a fraud on the rights of the plaintiff, and that as soon as plaintiff learned of the death of his uncle and the administration of his estate he returned to Independence County and made demand for his portion of the estate, which was refused.
The complaint alleged that "during the time of the administration of his estate he lived in the State of Oklahoma, near the Arkansas line, and that his whereabouts could have been easily determined by the defendants Wade and Wheeler, had they made any effort to do so." Plaintiff alleged the value of his share to have been $ 400, and he prayed judgment therefor, with interest at six per cent. from November 4, 1908.
The order of the probate court, which was made an exhibit to the complaint, recites that the final settlement of the administrator which had been presented for approval showed the sum of $ 2,151.77 in his hands for division, but that the addresses of Joe Ladd and George Hill were unknown. Exceptions to this settlement were filed by Wheeler and Wade, upon the ground that neither Ladd nor Hill were entitled to participate in the disbursement of the funds of said estate, for the reason that both had absented themselves beyond the limits of the State for a period of more than five years and nothing had been heard from either within five years, and both were therefore presumed to be dead, under the statutes of the State. The order of the probate court recites that witnesses were examined and sworn on the hearing of the exceptions to the administrator's settlement, and, "being fully advised in the premises, and it appearing to the court that the said Joe Ladd and George Hill had absented themselves from the limits of the State of Arkansas for a period of more than twenty years, the court is of opinion that said exceptions to the final settlement and account current of the administrator should be sustained."
The probate court ordered and adjudged that Ladd and Hill were precluded and estopped from participating in the division and disbursement of the funds of the estate, and that they "were not to have any portion of said funds deposited with the clerk of this court for their use and benefit or subject to their order," and the administrator was directed to amend his final settlement by dividing the funds of said estate into seven equal parts, instead of nine, as he had done, and, as thus amended, the report was ordered to lie over until the following term of the court, when it was approved.
Appellant insists that the order of the probate court which, as has been said, was made an exhibit to his complaint, was void for the reason that it does not conform to §§ 225-228, C. & M. Digest; and that he is not guilty of laches because he brought his suit within three months after being apprised of his rights; and that he is not barred by the statute of limitations because of the provisions of § 38, C. & M. Digest.
It is conceded that the order of the probate court did not conform to the requirements of §§ 225-228, C. & M. Digest, and was therefore void, but it does not follow that the cause of action is not barred by laches and limitation. We think it is barred by both laches and limitation.
The complaint contains no allegations sufficient to support the charge that the order of the probate court was obtained through fraud practiced upon the court in its procurement. The order itself recites the facts upon which the court made its finding; and, while the facts recited did not authorize the order made, there was no fraud practiced upon the court. The court was in full possession of the facts; indeed, the truth of the recitals contained in the order of the probate court is not questioned by the allegations of the complaint.
We have therefore an erroneous order of the probate court. The...
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