Mueller v. Grunker

• Decision Date: 30 November 1909
• Citation: 123 S.W. 469
• Parties: MUELLER et al. v. GRUNKER et al.
• Court: Missouri Court of Appeals

123 S.W. 469

MUELLER et al. v. GRUNKER et al.

St. Louis Court of Appeals. Missouri.

November 30, 1909.

1. JUDGMENT (§ 521) — COLLATERAL ATTACK.

A proceeding which attempts to avoid or defeat the effect of a judgment in a manner not authorized by law is a collateral attack on such judgment.

2. EXECUTORS AND ADMINISTRATORS (§ 513) — ACCOUNTING — JUDGMENT — COLLATERAL ATTACK.

A judgment of the probate court, by which an estate is finally settled and the administrator discharged, is conclusive against all proceedings other than a direct attack to set aside the judgment on the ground of fraud; and hence, where items of allowances made to certain heirs were all charged to the executrix's annual allowances and approved by the probate court upon the final settlement of the administrator de bonis non, after due notice, contribution of such heirs could not be subsequently compelled in a collateral proceeding.

3. EXECUTORS AND ADMINISTRATORS (§ 516) — ACCOUNTING — JUDGMENT — EQUITABLE RELIEF — FRAUD.

The fraud essential to be shown to vacate a judgment of the probate court finally settling an estate and discharging the administrator need not be positive and actual with intent to cheat and wrong those interested, but may consist of an improper act or concealment by the administrator operating as a fraud and resulting in a loss to the interested parties, whatever the motive may be.

Appeal from Circuit Court, Franklin County; R. S. Ryors, Judge.

Action by Bertha Mueller and others against August Grunker and others. From a judgment granting insufficient relief, plaintiffs appeal. Affirmed.

This is a proceeding in equity for the partition of real estate, and contribution from some of the tenants in common is sought as well. The parties in interest are brothers and sisters and heirs at law of one Anton Grunker. As such they are tenants in common of the parcel of real estate involved, the title to which is derived from their father under the terms of his will. The circuit court decreed a partition; that is, though it found the land incapable of division in kind, it was ordered sold, and the proceeds thereof partitioned. The court denied the prayer for an equitable contribution, however, on the ground that the matters therein involved were foreclosed by a prior judgment of the probate court of Franklin county under the jurisdiction of which the estate of the deceased, Anton Grunker, had been fully administered. The plaintiff prosecutes the appeal, and complains of the action of the court in denying their right to a contribution from their tenants in common. At the instance of the plaintiff, the circuit court made a special finding of facts, and declared its conclusions of law therein as follows:

"Now come the parties plaintiff herein by their attorneys, and defendants August Grunker and Anna Grunker by their attorney, and judgment by default having been rendered against defendants Mary Bayer and Joseph Bayer for failure to appear to this action and the said Mary Bayer and Joseph Bayer still failing to appear, this cause now comes on to be tried by the court, and the court, having now heard the evidence in the cause and argument of counsel, finds from the pleadings and evidence in the cause: That Anton Grunker died on the 11th of June, 1874, seised in fee of the land described in plaintiffs' petition leaving surviving his widow Catherine, and his daughters Mary, Bertha, and Anna, and his sons August and John, of whom said August, John, and Anna were then minors. That said widow died in 1904. That said Anton left no other heirs than his said children. That at his death said Anton left his last will whereby he bequeathed to Henry Ernest, Maria Barlage, and Dina Wellenkamp each $100, and that said bequests have been paid, and that as to all the balance and remainder of his estate and property said Anton gave the same to his children, share and share alike, subject to said Catherine's right of dower as his widow, and that by said will said Anton appointed said Catherine and said Mary executrixes thereof. That said will was probated, and said Catherine and Mary became executrixes thereof all as alleged in plaintiffs' petition. That in the year 1875 said Mary was married to defendant Joseph Bayer, and her authority as executrix of said will was thereby revoked. That afterward, in November, 1895, said Catherine resigned her office as such executrix, and (as alleged in said petition) was succeeded in the administration of said estate, first, by J. D. Grothaus, then by A. H. Breckenkamp, and finally by William Meyersieck, to each of whom, in turn, letters of administration d. b. n. on said estate with said will annexed were issued as alleged in said petition. That on October 19, 1874, said Mary (then Mary Grunker) received from said Catherine as executrix of said will the sum of $100, as part of her interest in said estate under said will, and thereupon gave to said executrix her receipt therefor, as follows, to wit: `Reed. Washington, Mo., Oct. 19, 1874, of Catherine Grunker Admx. of Anton Grunker Decd. one hundred dollars as part payment of my inheritance due me from said estate. [Signed] Mary Grunker.' That on the 28th day of April, 1875, said Catherine as executrix of said will paid to said Mary (then Mary Bayer) the sum of $675 as a part payment of the childs share of said Mary under the said will, and for said payment said Mary and her husband, Joseph Bayer, gave to said executrix their receipt as follows: `To All Whom It May Concern: Know ye that we the undersigned Mary Bayer, daughter of Anton Grunker late of Franklin County, Mo., deceased, and Joseph Bayer her husband, have this day received of Mrs. Catherine, widow, Grunker and executrix of the last will and testament of said Anton Grunker the sum of six hundred and seventy five dollars as a bequest and childs part of said Mary given to her by said will. $675.00. Washington, Mo., April 28, 1875. [Signed] Mary Bayer. Joseph Bayer. Witness: L. Grannemann.' That said Catherine on December 15, 1875, filed in said probate court her first settlement as such executrix, and in said settlement is credited with said payments to said Mary, and filed said receipts with said settlement as vouchers for said credits. That in said estate said probate court at its September term, 1876, made an appropriation of $120 for clothing, schooling, and supporting defendant Anna Grunker (then a minor) for the term of two years ending June 16, 1876; and afterward, on September 12, 1877, said probate court made a further appropriation for clothing, schooling, and boarding said Anna from June 16, 1876 to September 16, 1877, of $75, and that afterward said probate court made a further appropriation for the board, clothing, and schooling of said Anna from September 16, 1877, until September 16, 1878, of $50. That, pending the administration of said estate, the amount of said appropriations was paid to the use of said Anna and she received the benefit thereof, and that in the annual settlements of said estate in said probate court credits were claimed and allowed for said payments prior to the final settlements of said estate. That on December 10, 1879, William Meyersieck, then administrator d. b. n. of said estate, made final settlement thereof, after due publication of notice of his intention to make such final settlement. That on said final settlement all said credits allowed on the settlements aforesaid were undisturbed and a balance of $464.61 was due from said Meyersieck, and in accordance with an order of distribution distributed and paid over as follows: To August Grunker, Bertha Mueller, John Grunker, and Anna Grunker each the sum of $116.15, and afterward, on the ____ day of December, 1879, said probate court made and entered of record its order finally discharging said Meyersieck as administrator of said estate, and that, at the term at which such final settlement was made, said probate court by its order of record approved the same. The court further finds that on the 5th day of January, 1905, defendant Mary by her deed of that date, in which her husband did not join, and by herself only executed and delivered to defendant August Grunker, did for the consideration of $100 to her paid by said August remise, release, and forever quitclaim to said August all the right, title, and interest of said Mary of, in, and to the real estate described in the petition...