Ritchie v. Ritchie
| Decision Date | 14 June 1943 |
| Docket Number | No. 20300.,20300. |
| Citation | 173 S.W.2d 101 |
| Parties | RITCHIE v. RITCHIE et al. |
| Court | Missouri Court of Appeals |
Appeal from Twenty-sixth Circuit Court, Vernon County; Thos. W. Martin, Judge.
"Not to be published in State Reports."
Bill in equity by Estelle S. Ritchie against Lillian M. Ritchie and others to cancel contract. Judgment for defendants. From an order sustaining a motion for new trial, defendants appeal.
Affirmed and case remanded.
Silvers & Silvers, of Butler, for appellants.
Ralph P. Johnson, of Osceola, and H. E. Sheppard, of Butler, for respondent.
BOYER, Commissioner.
This is an appeal from an order granting plaintiff a new trial. By bill in equity plaintiff sought the cancellation of a contract between her and defendant Lillian M. Ritchie. They were co-heirs and the only heirs of C. D. Ritchie, deceased. Plaintiff was his sister and defendant Lillian M. Ritchie is his widow. The other defendant was Charles Morgan, administrator of the estate of C. D. Ritchie. The purpose of the contract was to make what was assumed to be a fair division and to settle the rights of the parties to property inventoried in the C. D. Ritchie estate, as well as the property of two other estates in which the estate of C. D. Ritchie had an interest. The two other estates were those of Pearlie M. Ritchie, the mother of plaintiff and C. D. Ritchie, and a partnership estate known as N. A. Ritchie & Son. N. A. Ritchie was the father of C. D. Ritchie and of plaintiff, and the husband of Pearlie M. Ritchie. The historical background and facts leading to the execution of the contract are briefly the following:
In 1904, N. A. Ritchie and his son, C. D. Ritchie, engaged in the mercantile business at Appleton City, Missouri, as partners under the firm name of N. A. Ritchie & Son, and said business continued until the death of the father January 20, 1928. The father owned a three fourths interest and the son a one fourth interest in the partnership business. From statements made in the record it was apparently agreed that upon the death of the father the partnership business was administered and settled.
N. A. Ritchie died testate leaving all of his estate to his widow, Pearlie M. Ritchie, and said estate was administered and settled. Thereafter Pearlie M. Ritchie and her son, C. D. Ritchie, continued the mercantile business as partners under the firm name of N. A. Ritchie & Son, the mother owning an undivided three fourths interest and the son a one fourth interest. This arrangement continued until the death of Pearlie M. Ritchie on December 13, 1939. C. D. Ritchie was appointed administrator of the partnership estate. Pearlie M. Ritchie died testate, and by the terms of her will there was a special bequest of $2,200 made to her daughter, the plaintiff herein, which was recited to be the amount due her up to September 25, 1928, for her services in the store. The home of the deceased in Appleton City was also devised to the plaintiff. A farm of one hundred acres, town lots, and all her interest in the mercantile business were devised and bequeathed, share and share alike, to the son and daughter, but the special bequest of $2,200 was to be first paid out of the mercantile assets. The plaintiff was named as executrix and qualified as such. Before the individual estate of Pearlie M. Ritchie and the partnership estate of N. A. Ritchie & Son were fully administered, and on August 7, 1940, C. D. Ritchie died intestate leaving the defendant Lillian M. Ritchie, his widow, and Estelle S. Ritchie his sister, as his only heirs. Charles Morgan was appointed administrator of the estate of C. D. Ritchie, and on September 5, 1940, filed an inventory of the personal assets of said estate which included a promissory note dated December 30, 1922, with interest credited to December 31, 1930. This particular note was made payable to the order of W. E. Burns and was signed by N. A. Ritchie, P. M. Ritchie, Chas. D. Ritchie, and N. A. Ritchie & Son by N. A. Ritchie. It was for the sum of $8,500, due six months after date with interest at the rate of 7%, compounded if not paid when due. The payee named in the note had some connection with the Appleton City Trust Company. He endorsed the note without recourse, and the trust company executed a receipt dated Dec. 30, 1922, in which it was recited that the bank sold and assigned the $8,500 note to Charles D. Ritchie, and that the note was left with the bank for safekeeping to be delivered to him on return of the receipt.
Plaintiff knew nothing about the existence of such a note and that C. D. Ritchie claimed to own it until shortly after his death, when it was called to her attention by her legal counsel at that time who had learned of it from Mr. Morgan, the administrator of C. D. Ritchie's estate. Plaintiff's counsel had been informed that the administrator was proposing to file the note as a claim against the assets of the partnership estate, as well as against the assets in the estate of Pearlie M. Ritchie. At that time counsel was of the opinion that said note was a valid and legal claim against the assets of said estates, and with accumulated interest would be sufficient to consume all the assets in the estate of Pearlie M. Ritchie, including the bequests and devises to the plaintiff, as well as the interest of Pearlie M. Ritchie in the partnership estate. During the years prior to the death of Pearlie M. Ritchie the bankers in charge of this note for C. D. Ritchie collected what interest was paid on the note by going personally and directly to Pearlie M. Ritchie and obtaining checks signed by her on the partnership funds to meet said interest and some checks were given by her which were not cashed, assumedly for the reason that the partnership account was insufficient. The bankers handling said note and collecting said interest for Charles D. Ritchie, at his request, concealed the fact of his alleged ownership of the note from his mother and sister. The sister, plaintiff in this case, worked continuously in the store and helped to keep the books, but no claim upon said note, for interest or otherwise, was ever presented there. The note was not carried as a liability of the partnership and she never knew anything about it until she learned that the administrator was proposing to present such a note for allowance in the other estates as above stated. Accepting the advice of her counsel at that time that the $8,500 note would constitute an allowable claim against her mother's estate and that of the partnership, and believing that all of the assets would thereby be thrown into the estate of C. D. Ritchie and that she would be deprived of her bequests and devises in her mother's will, a conference was arranged between plaintiff and her attorney on one side and the defendants and their attorney on the other side with a view of adjusting and settling all differences between the parties and of effecting a division of the properties of the three estates which were then involved. Prior to this conference, Mr. Morgan, the administrator, had asked the opinion of an attorney as to the validity of the $8,500 note and obtained an affirmative answer, and when this conference came on he called this attorney to represent the defendant, Lillian M. Ritchie. Defendants' counsel was unfamiliar with the condition of the various estates and during a somewhat protracted conference of two hours or longer the parties discussed the assets in the various estates, their probable value, and the liabilities. One of the assets of the Pearlie M. Ritchie estate was the hundred acre farm valued at $3,500. It was subject to a mortgage securing a debt of $2,275. Counsel on both sides made various estimates as to values and how the property should be divided. Plaintiff's counsel had no knowledge of the mortgage against the farm and it was listed as being clear of any encumbrance and at a value of $3,500. After separate conference both sides made propositions for division, and it appeared that there was not a great deal of difference and the defendant accepted the proposition formulated and proposed by plaintiff's counsel. The defendant did not want the mercantile business or the store property or the farm, and agreed to accept plaintiff's proposal and the parties then entered into the following contract:
To continue reading
Request your trial
- State ex rel. Walker v. Big Medicine Drainage Dist. No. 1 of Sullivan and Grundy Counties
- Potashnick Truck Service v. City of Sikeston
-
State ex rel. Ryan v. Holt
...undeniable.' The principle is evidenced by a host of cases listed in Mo.Dig., Judgments, k341. It applies in equity. Ritchie v. Ritchie, 173 S.W.2d 101(2) (Mo.App.1943) and it applies in criminal cases. State v. Gartrell, 171 Mo. 489, 71 S.W. 1045(1), declares: 'It is the settled law of thi......