Jacoway v. Dyer

• Decision Date: 28 January 1888
• Citation: 6 S.W. 902,50 Ark. 217
• Parties: JACOWAY v. DYER
• Court: Arkansas Supreme Court

6 S.W. 902

50 Ark. 217

JACOWAY v. DYER

Supreme Court of Arkansas

January 28, 1888

APPEAL from Yell Circuit Court in Chancery, E. E. BRYANT, Special Judge.

Decree reversed and cause remanded.

U. M and G. B. Rose, for appellants.

1. That a person cannot go into equity to correct mere errors in the settlement of administrators has always been the settled doctrine of this court. The remedy is by appeal. 8 Ark. 268; 20 Id., 527; 33 Id., 575; 34 Id., 64, 117; 36 Id, 383; 39 Id., 256; 40 Id., 393; 43 Id., 171; 45 Id., 505. There must be fraud. 42 Id., 189. The burden of showing fraud is on plaintiffs. 23 Id., 444; 33 Id. 727; 11 Id., 378; 6 Id., 308; 9 Id., 482; 18 Id., 124; 20 Id., 217; 22 Id., 184; 33 Id., 259; 37 Id., 146; 45 Id., 492.

Nearly if not all the charges are mere errors, which are admitted and a willingness expressed to have them corrected. Many of the errors are against the appellant administrator. The proofs show only a few clerical mistakes, less than the administrator made against himself, and a few trifling circumstances, which do not, establish fraud.

Review the charges in detail and contend that they were mere errors.

The 29th charge, that a claim was allowed in favor of a firm of which the administrator was a member when it was barred, is not proved. The claim was presented to the court and duly allowed and classified. It was then, if error at all, an error of the court. The fact that a claim is barred does not make it fraudulent. The administrator may waive the plea of the statute if he thinks fit. 22 Ark. 290; 3 Williams' Ex'rs., p. 1802; Perry on Trusts, sec. 481; Wood on Lira., sec. 188; 8 Bush., 566.

The 31st charge, as to excessive commissions, contains no charge of fraud, misrepresentation or imposition, and is merely an error. The claim of commissions above that prescribed by law does not indicate fraud. 42 Ark. 189; 20 Id., 527. The allowance of commissions is within the jurisdiction of the probate court, and its judgment is conclusive in the absence of proof showing fraud in obtaining such allowance. Ib.

2. If the accounts are to be opened for the correction of errors prejudicial to the estate, they must also be opened for the correction of those prejudicial to the administrator, and the latter preponderate. 40 Ark, 393.

3. Interest was wrongfully charged the administrator in his fifth account, on the amounts paid him by H. M. Jacoway, commissioner. Where an administrator holds funds subject to the order of court, without using them and without deriving any profit from their possession, he is not to be charged interest. See 11 Pick. 371; 2 Redf. Wills, 881; 3 Gill & J., 20; 1 McCord Chy., 247; 1 Barb. Chy., 77.

L. C. Half and Jno. Hallum, for appellees.

Take up the charges specifically, as well those that were rejected as those sustained by the chancellor, and review them. Although the court finds no fraud in the first charge, that the administrator failed to charge himself with interest, on the Hilb & Jessup note, every presumption is against the administrator. 20 Ark. 536.

As to the thirteenth, the administrator was clearly chargeable with 10 per cent interest. Mansf. Dig., sec. 92. He is bound to show what has been done with the money to avoid the conclusion that he has made use of it. 1 Binney, Penn., 194; 1 Johns. Chy, 620; 4 Id., 303; 6 Am. Dec., 597.

The twenty-ninth charge, we claim, was barred by limitation, and should not have been allowed. The plea that it was a running account does not take it out of the statute. It was not a mutual account The fact that the administrator fails to attach the dates to the items charged must be taken against him. 20 Ark. 79.

After reviewing all the charges, contend that fraud was clearly proven, and not only "a few clerical mistakes," most of which have been corrected. The administrator's attention has been called to those so-called "errors," and they have not been corrected.

Mere errors or irregularities made upon fair consideration with full knowledge of the facts, and without concealment or improper practice on the part of the executor, should be corrected on appeal, but where there is a combination of acts, omissions, irregularities and erroneous allowances, sufficient altogether to satisfy the mind that if fraud had not really been intended, there had at least been such gross carelessness and reckless disregard of the rights of others, as to make the inference of fraud necessary to the purpose of justice.33 Ark. 732, 730; 42 Id., 189; 20 Id, 535; 36 Ark. 383.

An omission to account for money or other assets is a legal fraud, which chancery will correct, whether the omission was intended or by mistake. 45 Ark. 505. Constructive fraud is sufficient. 40 Ark. 402; 48 Id., 544.

An administrator is liable and must account for interest when he mingles the money with his own, or uses-it in his private business, or neglects to settle his accounts for a long time, or to distribute or pay over the money when he ought to do so. Perry on Trusts, secs. 468, 472; 20 Ark. 527; 1 Johns. Chy., 620; 4 Id., 303.

Where a trustee is guilty of any breach of trust, or of any vexatious or improper conduct, the court can withhold all compensation. Perry on Trusts, sec. 919.

The jurisdiction of courts of chancery rests upon the broad principle, that equity will not allow proceedings of other courts to be made the means of perpetrating successful frauds, and it will relieve against accidents or mistakes when they would cause irreparable wrong and injustice. 33 Ark. 727; 42 Id., 186.

OPINION

BATTLE, J.

Appellees, "creditors of the estate of Samuel Dickens, deceased, on behalf of themselves, and other creditors of said estate, filed their bill in 1878, against the administrator, Jacoway, his sureties on his bond, and Mrs. Elizabeth D. Jacoway. The object of the bill was to set aside for fraud the settlements made by Jacoway in the probate court, to restate the accounts, to hold the sureties liable, and to subject to any decree to be rendered, certain real estate to which Mrs. Jacoway had legal title. A demurrer to the bill for want of equity was sustained, whereupon complainants rested. The bill was dismissed and they appealed" to this court. The judgment of the court below was reversed on appeal, and the cause was remanded for further proceedings. It then proceeded to a final hearing and was heard upon its merits. The settlements were held to be fraudulent in many respects and were restated by the court below; and the defendants excepted and appealed to this court. Plaintiffs also excepted to many rulings of the court against them and again appealed.

Dickens died intestate, on the second of March, 1867. Jacoway administered on his estate; filed an inventory, and made settlements, respectively, on the 19th of May, 1868, on the 7th of July, 1869, on the 14th of April, 1870, and the 5th of July, 1871, all of which were approved and confirmed.

"Subsequently, on the 15th of April, 1875, he filed a fifth settlement, in lieu of the four former ones, purporting to render an account and statement of all his administration down to that time, from the beginning, which was also duly approved and confirmed." Plaintiffs allege in their bill that these settlements are fraudulent, and to show this make thirty-one specific charges of facts which they insist indicate fraud.

The opinion delivered by this court in this cause when it was here for the first time, which is reported in the 42 Ark. 186, lays down the rule by which courts of equity are governed when they interfere in the settlements of administrators to correct fraud or errors, or relieve against accident or mistake. It is unnecessary to add to what has been said upon that subject in that opinion, except to repeat the rule so often announced by this court: A court of equity will not interfere with the proceedings in the probate courts for the settlement of estates to correct mere errors or irregularities, unless, they are sufficiently gross to raise the presumption of fraud. Ringgold v. Stone, 20 Ark. 526; Osborne v. Graham, 30 Ark. 66; West v. Waddill, 33 Ark. 575; Reinhardt v. Gartrell, 33 Ark. 727; Mock v. Pleasants, 34 Ark. 63; Jones v. Graham, 36 Ark. 383; Nathan v. Lehman, Abraham Co., 39 Ark. 256; Trimble v. James, 40 Ark. 393; McLeod v. Griffis, 45 Ark. 505; Hankins v. Layne, 48 Ark. 544, 3 S.W. 821.

Plaintiff's first charge of fraud is, the administrator charged himself in his settlements with interest at ten per centum per annum on $ 3,487 from March 18th, 1868, when he should have charged it from March 19th, 1867, and thereby defrauded the estate of Dickens out of $ 348.71.

The thirteenth is, the administrator received $ 6,957.18, and failed to charge himself with interest thereon from the time he received it, and thereby defrauded the estate of $ 1,158.25.

The evidence does not sustain either of these charges. In the first, the $ 3,487 was the amount of a note which did not bear interest until the 18th of March, 1868, when it was due. In the latter case the administrator charged himself with ten per centum per annum interest on the money from the time he received it to the date of the settlement in which it is charged.

But Jacoway insists that he did not use the $ 6,957.18, and through mistake charged himself with $ 764.72 interest thereon, when he was not chargeable with interest, and that this error against him should be corrected. The evidence does not show that he charged himself with it through mistake of fact. His settlement shows the dates of the receipt of it and that he charged himself with interest thereon from the time he received it to the date of his settlement. If there was any mistake in this, it was a mistake of law and not of fact. He received of this...