Miller v. Major

• Citation: 67 Mo. 247
• Parties: MILLER v. MAJOR, Appellant.
• Decision Date: 30 April 1878
• Court: United States State Supreme Court of Missouri

67 Mo. 247

MILLER

v.MAJOR, Appellant.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Howard Circuit Court--HON. G. H. BURCKHARTT, Judge.

Sam'l C. Major, Jr., and H. L. Brown for appellant.

A final settlement is, in effect, equivalent to a judgment of a court of competent jurisdiction, and can only be set aside upon proof that the same was falsely and fraudulently obtained. Jones v. Brinker, 20 Mo. 87; The State v. Roland, 23 Mo. 95; Whittlesey v. Dorsett, 23 Mo. 236; Mitchell v. Williams, 27 Mo. 399; Picot v. Bates, 47 Mo. 390; Sullivan County v. Burgess, 37 Mo. 300; Lewis v. Williams, 54 Mo. 200; Sheetz v. Kirtley, 62 Mo. 417; Graham v. Linden, 50 N. Y. 547; Smith v. Hurd, 7 How. (Miss.) 188.

Herndon & Herndon for respondent.

The executor must have represented that he paid the money for which he obtained the credit in his final settlement, and such representation, if false, must be considered fraudulent without reference to the motive that prompted it. 1 Story's Eq., (3 Ed.) §§ 186, 187; Clyce v. Anderson, 49 Mo. 37; State v. Roland, 23 Mo. 95; Jones v. Brinkcr, 20 Mo. 87.

NORTON, J.

This is a suit instituted in the Howard county circuit court, for the purpose of setting aside the final settlement of Henry I. Vivion, executor of Martha Brown, deceased. It is alleged that said Vivion, in his final settlement of said estate, made in February, 1871, procured a credit of $218.20, alleged to have been paid to plaintiff and one Wilford Embrey, which sum was due from said estate, to said plaintiff and said Embrey; that no part of said sum so credited and allowed to said Vivion at the time of the allowance had been paid; and that of said sum so credited one hundred and thirty-two dollars and twenty cents was due plaintiff; that no part of said sum had then, or at any other time, been paid plaintiff. It is further averred that the said credit, so claimed and allowed, was false and fraudulent as to said amount due plaintiff; that since the said final settlement the amount due to said Embrey had been paid; that said Vivion had died, that defendant, Major, as public administrator, had taken charge of his estate. The facts charged in the petition were put in issue by answer, and on a trial the court rendered a decree setting aside said settlement as to said credit, from which defendant has appealed to this court.

The final settlement of the executor, which is sought to be impeached and overthrown by his proceeding, stands upon the footing of a final judgment, rendered by a court having jurisdiction of the person and subject matter, and it cannot be vacated on the mere ground that an illegal allowance had been made in favor of the executor. To justify its vacation it is not sufficient to show that the allowance was not properly made, but it must further be established that it was procured by fraud, to the injury of the estate or some party interested. 20 Mo. 87; 23 Mo. 95; 27 Mo. 399; 37 Mo. 300; 47 Mo. 390; 54 Mo. 200; 62 Mo. 418. In the case last cited, Judge HOUGH, in his opinion, observes: “Any relaxation of the rule for the purpose of meeting apparently hard cases, can only result in making our judgments partial and confused. Ample time is given by the statute for taking appeals from the final settlement of guardians and curators, and it is better that all concerned should understand that some solemnity and binding force attaches to such settlements, and that they cannot be overhauled years afterwards, to the detriment of innocent parties, merely on account of illegal allowances. Such settlements must stand, unless tainted with fraud or reversed on appeal.” Applying the principle thus settled to the facts as disclosed by the record in the case before us, the judgment of the circuit court...