Nelson v. Barnett
Decision Date | 26 June 1894 |
Citation | 27 S.W. 520,123 Mo. 564 |
Parties | Nelson, Appellant, v. Barnett et al |
Court | Missouri Supreme Court |
Appeal from Gentry Circuit Court. -- Hon. C. H. S. Goodman, Judge.
By this equitable proceeding, plaintiff sought to set aside, on the ground of fraud, the final settlement of his mother Ann Barnett (formerly Nelson), as administratrix of the estate of his father, Robert C. Nelson, Sr., deceased.
It appeared at the hearing that an error had crept into the final settlement to the extent of $ 400, and this being admitted, the court in its decree corrected this error, by surcharging the defendant administratrix with that amount on account of the admitted error, and found the other issues for the defendants, and assessed part of the costs against each of the parties.
The decree thus entered, from which plaintiff appeals, is the following:
H. S. Kelley and J. W. Sullinger for appellant.
(1) The court erred in not charging the administratrix with the money received for the growing crops. The widow is not entitled to the growing crops; they go to the administrator. Whaley v. Whaley, 51 Mo. 160; 1 Williams on Executors [5 Am. Ed.], 630, note 1. (2) Ordinarily the widow may remain in the mansion house and messuages thereunto belonging, until dower is assigned. This is an incident to dower. 1 R. S. 1889, sec. 4533; Orrick v. Pratt, 34 Mo. 226; Roberts v. Nelson, 86 Mo. 21; Holmes v. Kring, 93 Mo. 452; Robinson v. Ware, 94 Mo. 687; Brown v. Moore, 74 Mo. 633; Jones v. Manley, 58 Mo. 559; Miller v. Tulley, 48 Mo. 503. (3) The administratrix can not use the assets of the estate for the erection of a house on land belonging to the estate. Rolfson v. Cannon, 3 Utah, 232; Kane v. Haitley, 73 Mo. 316; Cobb v. Muzzy, 13 Gray (Mass.) 57; 7 Am. and Eng. Encyclopedia of Law; In re Motier's Estate, 7 Mo.App. 514. (4) Guardians and other trustees have no right to deal with the trust property for their own benefit. They must act for, and not antagonistic to, the beneficiaries. Sharpe v. McPike, 62 Mo. 300, 307; Patterson v. Booth, 103 Mo. 413; Thornton v. Irwin, 43 Mo. 153; Shaw v. Shaw, 86 Mo. 594; Ward v. Davidson, 89 Mo. 458; Bispham's Principles of Equity, sec. 92. (5) If the administrator mixes funds of the estate with his own or uses them for speculation or profit, he is chargeable with interest. 14 Wall. (U.S.) 887; In re James L. Davis, Ex'r, 62 Mo. 450, 462; Scott v. Crews, 72 Mo. 261; Clyce v. Anderson, 49 Mo. 37; Julian v. Wrightsman, 73 Mo. 569; 1 R. S. 1889, sec. 224; Gregory v. Menefee, 83 Mo. 413; Cruce v. Cruce, 81 Mo. 676; Booker v. Armstrong, 93 Mo. 49. So if he invests the money at a profit, that profit belongs to the estate; if he suffers it to lie in his hands idle interest is properly chargeable. Clyce v. Anderson, Ex'r, 49 Mo. 41. (6) It has often been held in this state that a final settlement by an administrator or guardian has the force of a judgment, and can not be impeached in a collateral proceeding. VanBibber v. Julian, 81 Mo. 618; Sheetz v. Kirtley, 62 Mo. 417; Lewis v. Williams, 54 Mo. 200; Picot, Adm'r, v. Bates, 47 Mo. 390; Yeoman v. Younger, 83 Mo. 424; Patterson v. Booth, 103 Mo. 419; State ex rel. v. Gray, 106 Mo. 526. And that no suit can be had on the bond until the final settlement has been set aside. Woodworth v. Woodworth, 70 Mo. 610; Yeoman v. Younger, 83 Mo. 424; Clyce v. Anderson, Ex'r, 49 Mo. 37. A suit in equity to set aside the settlement on the ground of fraud must be first had. Tourville v. Roland, 23 Mo. 95. (7) And the fraud for which the settlement will be set aside must not only be of illegal allowances or credits, but there must be fraud, deceit or imposition practiced on the court in obtaining such allowances or in obtaining the judgment or approval of the settlement. Sheetz v. Kirtley, 62 Mo. 417; Lewis v. Williams, 54 Mo. 200; Murphy v. DeFrance, 101 Mo. 151; 105 Mo. 53; Payne v. O'Shea, 84 Mo. 130; Miller v. Major, 67 Mo. 247; Bradford v. Wolfe, 103 Mo. 391; Patterson v. Booth, 103 Mo. 403. And it has been held that the willful omission of an executor or administrator to charge himself with the assets which came into his hands, or the taking credit for what in no view of the case he is entitled to, is sufficient misconduct to vitiate his settlements as fraudulent to the extent of the omission or false credit. Houts v. Shepherd, 79 Mo. 141; Merrit v. Merritt, 62 Mo. 150. (8) Any omission or concealment that wrongs the estate must be considered fraudulent without reference to the motive that dictated it. Clyce v. Anderson, Ex'r, 49 Mo. 37; Hook v. Payne, 14 Wall. (U.S.) 252; Smiley v. Smiley, 80 Mo. 44; Byerly v. Donlin, 73 Mo. 270; West v. Reavis, 13 Ind. 294.
McCullough & Peery and S. S. Brown for respondents.
(1) The judgment of the probate court approving the final settlement, was a final judgment, and can not be set aside, except for actual fraud practiced by the administratrix in obtaining it. Jones v. Brinker, 20 Mo. 88; Barton v. Barton, 35 Mo. 162; Sheetz v. Kirtley, 62 Mo. 417; Smith v. Sims, 77 Mo. 272; Phillips v. Droughton, 30 Mo.App. 148; Lewis v. Williams, 54 Mo. 200; Miller v. Major, 67 Mo. 247; Patterson v. Booth, 103 Mo. 403; State ex rel. v. Gray, 106 Mo. 526; VanBibber v. Julian, 81 Mo. 619; Weinerth v. Trendley, 39 Mo.App. 337; Standard v. Lacks, 25 Mo.App. 64. The fraud to authorize the setting aside of the judgment, must be in the procuring of it. A suit in equity can not be resorted to for the purpose simply of obtaining a new trial of the original matter. Payne v. O'Shea, 84 Mo. 130; Murphy v. DeFrance, 101 Mo. 151; Murphy v. DeFrance, 105 Mo. 64. (2) The final settlement is conclusive as to all matters necessarily included within its scope, even though omitted therefrom. State ex rel. v. Roland, 23 Mo. 95; Patterson v. Booth, 103 Mo. 417. (3) Mrs. Barnett (formerly Nelson) as widow, was entitled to the rents of the farm until dower was assigned, and could have sued for them, if they had been withheld. Orrick v. Robbins, 34 Mo. 226; Miller v. Talley, 48 Mo. 503; Jones v. Manley, 58 Mo. 559; Roberts v. Nelson, 86 Mo. 21; Brown v. Moore, 74 Mo. 633; Holmes v. Kring, 93 Mo. 452. (4) If Mr. Nelson did not intend to charge James Millan with the money advanced to establish him in business, then his administratrix could not have recovered it. That which was intended by deceased as a gratuity could not be subsequently turned into a charge by his administratrix. Whaley v. Peak, 49 Mo. 80, and cases cited. (5) The failure to account for the growing crops was purely an error of law, both on the part of the legal adviser of the administratrix and of the probate court, and affords no ground for setting aside the settlement. Weinerth v. Trendley, 39 Mo.App. 337, and cases cited; Standard v. Lacks, 25 Mo.App. 64.
1. The final settlement of an administrator stands as firmly on an impregnable basis of conclusiveness as does the judgment of any other court, and can not be impeached, except on the ground of fraud in the very act of procuring the judgment, or as it is sometimes expressed, in the "concoction" of the judgment. McClanahan v. West, 100 Mo. loc. cit. 309, 13 S.W. 674, and cases cited; Nichols v. Stevens, ante, p. 96. This has been the uniform ruling in respect of final settlements of probate courts in this state. Jones v. Brinker, 20 Mo. 87; State to use v. Roland, 23 Mo. 95; Barton v. Barton, 35 Mo. 158; Picot v. Bates, 47 Mo. 390; Oldham v. Trimble, 15 Mo. 225; Woodworth v. Woodworth, 70 Mo. 601; Lewis v. Williams, 54 Mo. 200; Smith v. Sims, 77 Mo. 269; Sheetz v. Kirtley, 62 Mo. 417; Miller v. Major, 67 Mo. 247; State ex rel. v. Gray, 106 Mo. 526, 17 S.W. 500, and numerous other cases.
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