Picot v. Bates

Citation39 Mo. 292
PartiesLOUIS G. PICOT, ADM'R WITH THE WILL ANNEXED OF ANN E. DILLON, Respondent, v. BARTON BATES, TRUSTEE, &C., Appellant.<sup>a1</sup>
Decision Date31 October 1866
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court.

The petition in this case, filed August 12, 1858, alleged that Ann T. Dillon died in 1837, leaving issue Ann E. (plaintiff's testatrix) Martha and Susan; that P. M. Dillon, her husband, took out letters upon her estate; that as administrator he collected $2,768.49, in the year 1845, from the estate of John T. Nash; that at December term, 1845, he made a fraudulent settlement of said estate by crediting himself with $2,301.22 for a demand due him by the estate of said John T. Nash, being the same item with which he had charged himself, and also with the sum of $1,116.49 interest, and that these two items were fraudulently charged--that they had never been allowed against the estate of said Ann T. Dillon--that he fraudulently charged commissions, &c., specifying the items; that the testatrix died October 30, 1842, leaving a will, which was probated July 24, 1854, but no letters were granted until July 28, 1856, when they were granted to plaintiff; that P. M. Dillon died leaving a will, probated January 28, 1851, by which he devised his estate to defendant and one Provenchere, who renounced, as trustees for the children of P. M. Dillon; that executors were appointed, who qualified, and afterwards transferred the estate to defendant. The petition then showed how the issue of P. M. Dillon took under will, and were represented by defendant as trustee, and therefore were not material parties to the suit. The petition then prayed that the settlement be corrected, and that to avoid circuity of action he might recover the share of Ann E. Dillon in her mother's estate, &c.

Defendant demurred, assigning two causes. 1. No cause of action stated in the petition. 2. That suit should have been against the personal representatives of Patrick M. Dillon.

Demurrer was overruled. Defendant answered and traversed the petition, and then pleaded the limitation of the administration act--three years, and of ten years.

The case went to trial. Plaintiff showed letters on estate of Ann E. Dillon to the plaintiff, granted August 28, 1856. Will of Ann E. Dillon, devising all her property to Marie Pommeral, dated October 4, 1842, probated July 24, 1854; she died October 30, 1842. Administration of estate of Ann T. Dillon; affidavit of heirs made, &c., November 10, 1837, showing that Ann E. Dillon was one of three children of Ann. T. Dillon; inventory and accounts; settlement of December term, 1845, showing fraudulent credits, &c. Will of P. M. Dillon, devising his estate for the benefit of his children, to trustees, defendant, &c.

P. M. Dillon died January, 1851; letters granted January 29, 1851, proof of notice of letters made.

The defendant asked several instructions upon the effect of P. M. Dillon's settlements and the question of limitation.

The court found the settlements fraudulent, made the proper corrections, and gave judgment for Ann E. Dillon's share of her mother's estate.

Motion for new trial filed and overruled. Motion in arrest filed, but stricken out because not filed within four days, and appeal.

W. A. Alexander, for appellant.

I. The will of Patrick M. Dillon shows that while the naked legal title vests in Barton Bates, the equitable and beneficial title vests wholly in the two daughters of Dillon and their issue. A decree in this case against the trustee would have to be satisfied out of the estate of Dillon's heirs exclusively; but such a decree cannot be rendered without bringing them into court. Their estate cannot be taken away for any alleged misconduct of the ancestor not growing out of, nor connected with, the trusteeship of Bates, without notice to them and opportunity to defend.

1. As this is a proceeding in chancery, it is clear that the other parties in interest, or rather the real parties in interest should be brought into court.

2. The petition shows on its face that the alleged fraud, if any, occurred more than five years, namely, thirteen years before the beginning of this action--R. C. 1855, p. 1048, Act of Limitations, Art. 11, § 3, last clause. “Wherefore it is insisted in the present case that it ought to be charged in the bill that the fraud was discovered within five years, if the fact were so”--3 P. Wms. 144. If the fact were not so, this action is barred by the statute of limitations.

The discovery of the alleged fraud is made by our statute, as it was by the British statute, a distinct, material and traversable fact. Its averment would have enabled defendant to plead another and totally distinct matter of defence. If such new averment had been disproved, it would have been fatal to plaintiff's case. It may be added, that a failure to plead an independent and material allegation is not cured by verdict--2 Doug. 683; 3 Conn. 515; Buxenden v. Sharp, 2 Salk.--; 13 Vt. 70.

II. There is no fraud.

1. To make out a case of fraud plaintiff must show, first, a claim asserted by Dillon to which he is not in law or equity entitled; second, the judgment of the probate court allowing such claim; third, some trick some cheat practiced by Dillon either on some of the parties in interest or on the courtwhich allowed the claim, by which an advantage was gained which but for the deception could not have been gained, and by which (at least, as to the parties in interest) the parties, or some of them, were actually deceived, and had a right to be deceived.

These three facts must co-exist to make fraud:

First--The evidence in the case does not show that either of the claims objected to was illegal and inequitable.

Second--The second essential element in a case of fraud is proof of the probate court allowing these claims. On this point there is no evidence whatever; the only evidence looking towards it is the account rendered. But, first, there is no evidence of the order or judgment of the probate court allowing and approving the account; second, the certificate of the probate court judge shows positively that this is not a final settlement but an account rendered. How many accounts were afterwards rendered before the final settlement, and whether, if there is any illegal claim set forth in this account, it was afterwards reviewed and corrected, does not appear. This court will not presume fraud in an administrator nor improper action in the probate court. To make out this second element of his alleged case of fraud the plaintiff had to produce, first, the final settlement, and, second, the judgment of the probate court allowing the final settlement; he has produced neither.

Third--If the plaintiff had established the first two elements of fraud, he was bound also to show some trick practiced by Dillon on the court, or some party in interest, by which he gained an advantage not otherwise to have been gained, and by which the court or a party in interest was in fact deceived, and had a right to be deceived.

The appellant submits the following suggestions:

1. If it were shown that the commissions and claims mentioned in the petition were allowed by the probate court,--then, since such allowance is a judgment of the court, this court will presume it to be correct. The evidence on which the probate court rendered the judgment is not preserved for the inspection of this court, and in its absence this court will presume that the evidence before the probate court was satisfactory and sufficient.

2. To set aside the judgment of the probate court on the ground of fraud, when no evidence is presented except a part of the judgment-roll itself, which was as open to the inspection of the probate court as it is to this court, would be to impute to the probate court itself a complicity with the alleged fraud of Dillon.

3. This court, in the absence of the evidence on which the probate court acted, will presume not only that there was no fraud, but that the judgment was actually right.

4. Mere error does not prove fraud, neither does the illegality of a claim prove fraud--12 Ves. 388 & 391; 20 Mo. 87; 23 Mo. 95; Id. 236.

If there is no fraud, the action falls on two grounds:--First, as this is not an appeal from the judgment of the probate court, that judgment cannot be disturbed except for fraud. Second, fraud is the gist of the action; if that fails, his case fails.

III. This action is barred by the statute of limitations.

The statute applies to this case--Kane v. Bloodgood, 7 Johns. Ch. 110-13, 117, 121, 127; 27 Mo. 591; 8 Mo. 286; 20 Mo. 97. The case in 12 Mo. 3, has no application; that was an action to compel an administrator to render account, which is exclusively an action in equity.

Whittelsey, for respondent.

I. The demurrer was properly overruled. It was not made on account of defect of parties--R. C. 1855, p. 1231, §§ 6 & 110. The objection was no cause of action. The petition showed that there was no person capable of suing until plaintiff was appointed administrator of Ann E. Dillon in 1856, and then the administration of Patrick M. Dillon had been closed, and the defendant holding as trustee of an express trust the beneficiaries were not material parties--R. C. 1855, pp. 1217-18. As they took under his will, they had no interest in questioning his acts.

II. P. M. Dillon was an administrator of his wife, and trustee for his children for their shares of his personal estate. For that estate and the share coming to Ann E. Dillon, as she died before it was received, no one could sue but her personal representative, and there was no personal representative until plaintiff was appointed administrator in 1856, at which time the administration of P. M. Dillon's estate had been closed and the assets turned over to defendant.

The statute of limitations, therefore, does not apply to this case. P. M. Dillon was trustee; the plaintiff is only following the trust estate, and seeking an account thereof in the hands of defendan...

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