Purdy v. Gault

• Decision Date: 09 November 1885
• Citation: 19 Mo.App. 191
• Parties: THOMAS C. PURDY ET AL., Respondents, v. THOMAS GAULT, ADMINISTRATOR, ET AL., Appellants.
• Court: Kansas Court of Appeals

19 Mo.App. 191

THOMAS C. PURDY ET AL., Respondents, v. THOMAS GAULT, ADMINISTRATOR, ET AL., Appellants.

Court of Appeals of Missouri, Kansas City.

November 9, 1885

APPEAL from Bates Circuit Court, HON. JAMES B. GANTT, Judge.

Affirmed.

Statement of case by the court.

This is a bill in equity to set aside an allowance against the estate of Daniel Purdy, deceased, made in the probate court of Bates county. The petition alleges that the plaintiffs are the heirs, as also the defendant, Sallie Nickell, of said Daniel Purdy, deceased, who died intestate in the state of Kentucky in April, 1880. The plaintiffs, at the times hereinafter mentioned were and yet are residents of the said state. The defendant, Gault, was appointed administrator of said estate by the probate court of Bates county, April 20, 1880, and pro ceeded to administer thereon. One P. A. Nickell married said Sallie Purdy, and himself died testate in Bates county in December, 1878, leaving said Sallie, surviving him, and Rosa Bell, a minor daughter, who are made parties defendant. The said Nickell by his last will and testament designated his wife and the other defendant, H. P. Robinson, executors of said will. Robinson alone qualified as such executor, and administered said Nickell's estate as such. The petition then proceeds to aver:

" That in the year 1870, said Daniel Purdy being possessed of considerable means, came to live with said Nickell and wife in Bates county, Mo., and to pay for his boarding while there loaned Nickell one thousand dollars at ten per cent., the interest to pay his boarding and keeping. That he loaned Nickell other money and took his notes for it. That except some time when visiting his other children D Purdy made his home with Nickell till September 1, 1878. That on August 26, 1878, Purdy and Nickell both being in such health they did not expect to recover, they had a settlement and Nickell gave Purdy his note for said one thousand dollars, due in one year, with ten per cent. from date. That after Nickell died, and Robinson qualified as executor, D Purdy made affidavit to the notes he held on his estate, and sent them to defendant, Gault, to have them allowed against the estate of Nickell; and Robinson waiving service, they were allowed in November, 1879, being three in number, the one aforesaid, and one of December 24, 1875, for $292.96, and one of March 1, 1873, for four hundred and fifty dollars, with a credit of two hundred and ten dollars December 26, 1874, all drawing ten per cent. interest, and allowed for full amount of principal and interest. That D. Purdy also sent an account for one hundred dollars for allowance, but it was not allowed, or any steps taken as to it, and attaches a copy of it. That Robinson paid the allowance on the two hundred and ninety-two dollars note to Purdy in his lifetime. That a few days after Gault was appointed administrator of D. Purdy, defendant, Sallie Nickell, caused an account to be presented to Gault in favor of Robinson, executor of Nickell, for seven hundred and fifty dollars, claimed to be due the estate of Nickell from the estate of Purdy for said boarding and lodging. That on May 12, 1880, Sallie Nickell and Gault appeared in said probate court, and said account not being properly made out, the attorney whom Gault had employed to advise him in the administration of said estate made it out in due form, and wrote the proper affidavit, and Mrs. Nickell swore to it, and said attorney examined the witnesses produced. That Mrs. Nickell and Gault both knew the claim was fraudulent and fictitious, yet Gault asked no time and did not correspond with the heirs about it, but by fraud and collusion induced the court to allow the claim, which it did for seven hundred and fifty dollars, as a claim against said Purdy estate, entering it on the record as in favor of said Sallie Nickell. That Gault concealed these facts from plaintiffs, and they did not know them until too late to appeal. That defendant Gault paid said claim so allowed by crediting it on the allowance made on said one thousand dollar note. That plaintiffs brought suit in the Bates circuit court against Gault, administrator, and Sallie Nickell, to set aside said allowance, whereupon defendants, Gault, Sallie Nickell, and Robinson, on February 17, 1881, appeared in said probate court and had entry made nunc pro tunc, showing said claim allowed in favor of said Robinson as executor of Nickell, in consequence of which, when said cause came on for trial at November term, 1881, of the circuit court, plaintiffs took a non-suit. That on February 17, 1881, defendant, Robinson, made final settlement of the estate of Nickell, and in it charged himself with the seven hundred and fifty dollars, so collected from the Purdy estate, all with knowledge of the facts aforesaid, and Nickell's estate thus got the benefit of it. The prayer is to set aside the judgment of allowance in favor of Nickell's estate against the Purdy estate, and to set aside the final settlement of the Nickell estate, and to cancel the credit given for seven hundred and fifty dollars, and that the estate of Nickell be compelled to pay the same to the Purdy estate, and for general relief."

To this petition defendants demurred, on the grounds, first, that this being an action in chancery to set aside judgments of the probate court, the circuit court has no jurisdiction to hear the same; second, if plaintiffs have any cause of action, they have a complete remedy at law; and third, two causes of action are united in one count, and the petition does not state facts sufficient to constitute a cause of action, etc. And the defendant, Gault, further demurring on his own behalf, on the ground that he was not a necessary party defendant. The court overruled the demurrer. Defendants answered jointly, admitting the formal allegations of the bill, and taking issue as to the other material averments respecting the indebtedness between Purdy and Nickell as stated in the petition and denying all fraud. It also pleaded other facts, giving a different version as to the state of accounts and transactions between the deceased parties. The answer pleads several matters of mere evidence, and raising by the answer the objections made in the demurrer. The reply tendered the general issue. The court found the issues for the plaintiffs, and rendered decree setting aside said judgment of allowance in favor of Nickell's estate against Purdy's estate. The defendants bring the case here on appeal.

E. J. SMITH, for the appellants.

I. The circuit court had no jurisdiction in this case. Our present constitution differs from all former ones as to probate courts. Sects. 22, 23, Art. VI., Constitution of 1875; sect. 6, Art. V., Constitution of 1820; sect. 12 Art. VI. of Constitution of 1865; sect. 1176 Rev. Stat.; Dobson v. Prince, 12 N.Y. 156; Wilson v. Boughton, 50 Mo. 17; Bresnahan v. Price, 57 Mo. 422; Case v. Cunningham, 61 Mo. 434; Mabry v. McClurg, 51 Mo. 256, and 74 Mo. 575; Londerman v. Lewis, 3 Mo.App. 585; Phelan v. Engleman, S.Ct. Mo., April Term, 1885.

II. Defendant, Gault, is improperly made a party herein. Clark v. Cable, 21 Mo. 223; State ex rel., etc., v. Dulle, 45 Mo. 269 and 311; Grayson v. Weddle, 63 Mo. 523; Long v. M. & S. Co., 68 Mo. 422.

III. The petition does not state a cause of action. United States v. Atherton, 102 U.S. 372; Smith v. Sims, 77 Mo. 269; Miller v. Mayor, 67 Mo. 247.

IV. The judgment appealed from is nugatory. It simply sets the judgment of allowance aside, and the estate cannot be opened up. Titterington v. Hooker, 58 Mo. 593.

V. It was error to allow amendment, and the bringing in of a new party after trial, and force defendants to two trials. When the plaintiffs went to trial they should stand by it.

VI. It was error to exclude evidence of admissions offered for purpose of impeachment.

VII. The motion in arrest should have been sustained. The want of jurisdiction and failure of the petition to state a cause of action were insisted on at all stages of the case. Sect. 3519, Rev. Stat.

WILLIAM PAGE, for the respondents.

I. The circuit court had jurisdiction of this cause. Since the case of Clark v. Henry (9 Mo. 386), courts of equity have been continually exercising jurisdiction in such cases. And the constitution of 1875 does not deprive them of it. Clark v. Henry, 9 Mo. 336; Oldham v. Trimble, 15 Mo. 160; Sullivan Co. v. Burgess, 37 Mo. 300; Clyce v. Anderson, 49 Mo. 37; Stewart v. Caldwell, 54 Mo. 256; Miller v. Mayor, 67 Mo. 247; Smith v. Sims, 77 Mo. 269; Sniveley v. Sniveley, 80 Mo. 44; Mayberry v. McClurg, 51 Mo. 256, and 74 Mo. 575.

II. Defendant, Gault, is not only a proper but a necessary party. He was an active party to the fraud committed in having the claim allowed against the estate of which he was administrator. Stewart v. Caldwell, 54 Mo. 536; Donovan v. Dunning, 69 Mo. 436; Tucker v. Tucker, 29 Mo. 350; Bobb v. Bobb, 76 Mo. 419.

III. The petition states a good cause of action and the judgment is fully supported by the evidence. Mayberry v. McClurg, 51 Mo. 256, and 74 Mo. 575; Stewart v. Caldwell, 54 Mo. 536; Harris v. Terrell's Exec'r, 38 Mo. 422.

IV. The court properly set aside the final settlement of Robinson, executor of Nickell. The allowance in his favor was a fraud and was in pursuance of the common design to defraud the estate of Purdy out of the amount of this allowance. Clyce v. Anderson, 49 Mo. 37; Byerly v. Donlin, 72 Mo. 270.

PHILIPS P. J.

The principal and most important question discussed by appellants on this appeal is, as to whether the circuit court had jurisdiction over the subject matter of the action. Their contention is, that under the constitution and statute laws of the state, in force when the action was brought, ...