Kraft v. Moore

• Decision Date: 29 July 1905
• Citation: 89 S.W. 51,76 Ark. 391
• Parties: KRAFT v. MOORE
• Court: Arkansas Supreme Court

89 S.W. 51

76 Ark. 391

KRAFT v. MOORE

Supreme Court of Arkansas

July 29, 1905

Appeal from Phillips Chancery Court, EDWARD D. ROBERTSON Chancellor.

Affirmed.

Decree affirmed.

N. W Norton, for appellants.

An administrator is liable personally for transactions subsequent to the death of his intestate, and a suit against him personally is proper. 19 Ark. 671. The suit having been brought against John P. Moore as an individual, he had no right, in his fiduciary capacity, to file a cross-bill. The cross-complaint was not proper because not responsive to the case made in the complaint. 30 Ark. 249; 31 Ark. 345. The administration of John P. Moore is ancillary, and his powers are limited to assets in this State, for the protection of domestic creditors. 46 Ark. 453; 31 Ark. 539; 34 Ark. 177; 42 Ark. 164; 16 Ark. 257; 30 Ark. 231.

M. L Stephenson, for appellees.

This court will not disturb the findings of a chancellor unless there is a clear preponderance of evidence against them. 44 Ark. 216. A court of equity will not interefere with proceedings in the probate court for the settlement of estates to correct errors or irregularities, unless they are sufficiently gross to raise the presumption of fraud. 50 Ark 217; 33 Ark. 575; 36 Ark. 383; 39 Ark. 256; 40 Ark. 393. Costs in equity are subject to the discretion of the court. 36 Ark. 383. Where a husband receives the capital fund of his wife's property, there is no presumption that she intended to give it to him. 98 Ill. 178; 135 Ind. 482.

HILL, C. J. BATTLE, J., absent.

OPINION

HILL, C. J.

Joseph H. Jackson died, leaving a widow, Sallie B. Jackson, nee Moore, and three minor children, Jamison A. Jackson, Martha Jackson and Lida Jackson. He left $ 8,000 in insurance to his wife. Mrs. Jackson was possessed of real estate, consisting of farm and other property in Phillips County. Mrs. Jackson, some years after her first husband's death, married Fred W. Kraft, and, after living some time in Helena, they moved to East St. Louis, Illinois, and there made their home until the death of Mrs. Kraft. Mrs. Kraft left one child, Overton A. Kraft, as the issue of her second marriage. Her husband, F. W. Kraft, took out letters of administration on her estate at the place of her domicil, East St. Louis, Ill., and John P. Moore, her father, took out letters on her estate in Phillips County, Arkansas, about one year prior to the letters of Kraft in Illinois. Several claims were probated in Phillips County, among others one of John P. Moore and another of Frierson Moore, Mrs. Kraft's brother.

On the petition of the administrator, the Phillips Probate Court ordered some real estate sold to pay debts; it was bought by Frierson Moore, and his purchase of it confirmed. Thereafter Kraft in his own right and as next friend to his child, Overton A. Kraft, brought suit in Phillips Chancery Court to assign him his estate of curtesy in the land sold, to set aside the sales, and attacking the debts of Moore and son. Since this appeal was taken, Overton A. Kraft has died, and his estate has passed to his half brother and half sister, who are not parties here. Counsel agree that the issues in the original suit, as to these sales and debts, died with Overton A. Kraft, and left only a question of costs for determination. There are decision to the effect that an appellate court will not proceed to determine a question formerly in the case in order to determine the present question of costs. In this case the costs are all in one suit, and the determination of the issues of the cross complaint will settle all the costs, as the costs in the suit and cross suit are inseparable, except possibly trivial amounts.

After meeting the issues in the original suit, John P. Moore, in his capacity as administrator, sued Kraft in a cross-complaint, alleging that he had obtained $ 6,000 of his wife's money under promise of investment in her name, and converted it to his own use, and bought property with it, taking title to himself. He prayed judgment for this as such administrator, or in the alternative that Mrs. Kraft's children by her first marriage be made parties, and judgment rendered in their favor for three-fourths of it. Kraft denied the allegations, and pleaded res judicata. The chancellor found in favor of Moore on both the suit and cross suit, except as to Kraft's curtesy interest which was decreed to him, and there was no cross appeal on that issue, and gave judgment against Kraft for $ 4,800 with interest. The latter is the only matter before the court.

1. Moore, as next friend of the Jackson children, had sued Kraft in Illinois, making substantially the same allegations as herein made in regard to money obtained by Kraft from his wife under promise of re-investment for her, and sought to impress a trust on certain real estate in Illinois alleged to have been purchased with this money thus obtained, title to which was taken in himself. The Supreme Court of Illinois decided the case against the Jackson children, on the ground that they failed to trace the money received from Mrs. Kraft as the whole or a definite part of the consideration of the properties sought to be impressed with the trust. In that case the court found Kraft...