Meriwether v. Block

• Decision Date: 22 May 1888
• Citation: 31 Mo.App. 170
• Parties: WALKER G. MERIWETHER, Plaintiff in Error, v. H. V. P. BLOCK, Executor, etc., Defendant in Error.
• Court: Missouri Court of Appeals

31 Mo.App. 170

WALKER G. MERIWETHER, Plaintiff in Error, v. H. V. P. BLOCK, Executor, etc., Defendant in Error.

Court of Appeals of Missouri, St. Louis.

May 22, 1888

ERROR to the Lincoln Circuit Court, HON. E. M. HUGHES, Judge.

Reversed and remanded.

MARTIN & AVERY, E. T. SMITH, and GEO. T. DUNN, for the plaintiffs in error: Walker G. Meriwether had no such natural or successive relationship to M. A. E. Meriwether, or her property interest in the estate of Geo. D. Meriwether, as to make him a privy to her. He is neither her personal representative, heir, devisee, legatee, assignee, voluntary grantee, or judgment creditor, or purchaser from her with notice. He must be one of these to be bound by a judgment against her. Henry v. Wood, 77 Mo. 277, 281; Haley v. Bogley, 37 Mo. 364; Greenl. Evid., sec 189. The judgment did not affect or operate upon the condition of the estate, but only upon defendant's relation to it. Its conclusive effect could not be greater upon persons not parties to it than would be the judgment of the probate court in granting letters of administration upon persons not parties thereto as to the fact of death of the person whose estate was being administered. In such cases though a proceeding in rem, the judgment does not conclude persons who are not parties. Bingham v Fayerweather, 1 N.E. 736; Carroll v. Carroll, 60 N.Y. 121; Emmert v. Stouffer, 3 Cent. Rep. 236; Haight v. Brisbin, 100 N.Y. 219. The proceeding and judgment was in personam, not affecting or assuming to affect the estate or res. And persons not parties to it are not concluded. Durant v. Abendroth, 97 N.Y. 132. If the judgment in that case is binding upon plaintiff it would be equally binding upon creditors. They have the same right, under section forty-three, Revised Statutes, that heirs or legatees have. The settlements made prior to the judgment in the M. A. E. Meriwether case show that he charged the estate interest on all cash balances due him. In his settlement made since the judgment of October, 1886, when cash balances were due the estate from rent of the Aberdeen farm, he fails to charge himself with interest. This last act might be innocent in itself, but when taken in connection with his acts upon the same subject prior to the judgment, shows his purpose to take every advantage of the estate--one act is necessarily connected with and in explanation of the other. There was no such privity of relation or estate between M. A. E. Meriwether and the plaintiff as would bind the latter by an adjudication for or against the former in an action in which he was not a party. Freeman on Judg., sec. 171 a; Christman, Adm'r, v. Harman, 26 Am. Rep. 387; Hill v. Stevenson, 18 Am. Rep. 231; Durant v. Abendroth, 97 N.Y. 132; Norcross v. Hudson, 32 Mo. 227; Strass v. Ayres, 87 Mo. 349. Walker G. Meriwether had no such natural or successive relationship to M. A. E. Meriwether, or her property interest in the estate of Geo. D. Meriwether, as to make him a privy to her. He is neither her personal representative, heir, devisee, legatee, assignee, voluntary grantee, or judgment creditor, or purchaser from her with notice. He must be one of these to be bound by a judgment against her. Henry v. Wood, 77 Mo. 277, 281; Haley v. Bagley, 37 Mo. 364; Greenl. on Evid., sec. 189.

W. H. BIGGS and R. H. NORTON, for the defendant in error: The defendant contends that the judgment in the former trial was conclusive upon the complainant in this cause for the following reasons: (1) Because the proceeding was in the nature of a proceeding in rem; (2) because the appellant and M. A. E. Meriwether are privies in estate. Wells, Res Adjudicata, 506. It has been held that the probate or proof of a will is a proceeding in rem because it determines the status of the subject-matter and that the judgment in reference thereto binds all parties, whether parties to the record or not. Woodruff v. Taylor, 20 Vt. 73; Fry v. Taylor, 1 Head. 595; Caskpan v. Dexter, 13 Gray 332. Also cases of marriage and divorce are held to be proceedings in rem, because judgments and decrees therein fix and define the status of the parties. Greene v. Greene, 2 Gray 363. Also as to matters of pedigree. Ennes v. Smith, 14 How. 430. And matters of partition as to unknown heirs. Kane v. Canal Co., 15 Wis. 179. Appellant and M. A. E. Meriwether are privies in estate. If this be true then the former is clearly estopped and bound by the judgment in the former suit. The term privity denotes mutual or successive relationship to the same rights of property. Crispin v. Hannovan, 50 Mo. 415, and cases cited; Cooley v. Nonen, 53 Mo. 166.

OPINION

ROMBAUER P. J.

In September, 1865, George D. Meriwether made his will, containing among others the following provisions: (1) Appointing his brother-in-law, Henry V. P. Block, sole executor, and directing him to sell all real and personal estate in the manner, time, and place he may think best. (2) Directing the payment of a legacy of five thousand dollars to his cousin, Elizabeth M. A. Miller. (3) Constituting his son, Walker G., residuary devisee and legatee.

After making the will the testator married his cousin, the legatee Miller, and when he died, in 1874, he left his widow and son as sole legatees and devisees of his estate under the provisions of the will above recited.

The executor named in the will took possession of the estate as such upon the decease of the testator, under letters testamentary, and has been in possession ever since.

On January 29, 1887, the plaintiff, residuary devisee as aforesaid, filed his complaint in the probate court, alleging that the executor was guilty of a violation of his duties, assigning a number of acts of mismanagement on his part, and praying for his removal. The defendant executor answered denying all charges of mismanagement, and stating as an affirmative defence, " that plaintiff and one M. A. E. Meriwether were the only heirs of said estate; that in 1885 the said M. A. E. Meriwether filed in the probate court of Lincoln county a complaint asking for the removal of defendant as executor of said estate, in which the same causes for defendant's removal were urged as in the complaint of plaintiff in this suit; that said former complaint was tried in the probate court, and on appeal was re-tried in the Lincoln county circuit court, at its March term, 1886; that on said trial, there was a full, complete, and final determination of all matters and things set forth in said complaint, and that the decision of the said circuit court therein was, that there was no cause shown for the removal of defendant as executor of said estate, and said proceeding was dismissed; that plaintiff Walker G. Meriwether was present at the trial of said cause, and testified as a witness for defendant."

On the trial of the cause in the circuit court (on appeal from an order of the probate court removing the executor), the plaintiff gave evidence tending to show irregularities in the administration of the estate anterior to the trial of the cause of M. A. E. Meriwether against the defendant. These irregularities were of a character which, remaining unexplained, would have furnished ground for the executor's removal. The plaintiff also gave evidence tending to show that since the institution of the former suit the executor had sold some real estate, part of the estate entrusted to him, for less than its reasonable value. But there was no evidence showing any bad faith on part of the executor in these sales, and it cannot be contended that the acts of the executor in making such sales, standing alone, furnished any ground for his removal.

The plaintiff also gave evidence tending to show the following facts: When Meriwether, the testator, died in 1874, the defendant lived on some lands in Pike county known as the Aberdeen farm, consisting of about eight hundred acres in cultivation. Of this farm, the estate owned 21-32 parts, and the defendant's wife the remainder, so that the defendant, by right of his wife, was a tenant in common to the extent of about one undivided third. The defendant continued to occupy this farm until its sale in 1886. He made settlements in the probate court in 1875, 1876, 1877, 1880 and 1885. In neither of these settlements did he charge himself with any rent of the Aberdeen farm. He testified on the subject as follows: " At the trial of M. A. E. Meriwether in 1886, in the Lincoln circuit court, she complained and urged as a ground of my removal that I had failed to charge myself with the rent of the Aberdeen farm. I had asked Judge Bonfils, the probate judge of Lincoln county, who was probate judge when the administration begun, in reference to this, and he had informed me that all this matter of rent had better be adjusted in a final settlement. After this suit had been dismissed by the court, my attorneys informed me that I had better charge myself with the rent of the Aberdeen farm in my next settlement. As I was a party interested, I thought the rental value of the farm ought to be fixed by disinterested parties." The defendant further stated: " In determining the rents which I ought to charge myself with for the Aberdeen farm, I thought it best to...