Stark v. Cole
| Decision Date | 02 December 1963 |
| Docket Number | No. 23868,23868 |
| Citation | 373 S.W.2d 473 |
| Parties | Sharon Cole STARK, Appellant, v. Feleciea COLE, James B. Marks and Western Surety Company, Respondents. |
| Court | Missouri Court of Appeals |
Crouch & Fitzgerald, Warrensburg, for appellant.
Houtchens & Houtchens, Clinton, for respondent Western Surety Co.
Poague, Brock & Wall, Clinton, for respondent James B. Marks.
Plaintiff-appellant Sharon Cole Stark is an heir at law of her deceased father and a beneficiary of his estate. At the time of his death in 1955 she was a minor thirteen years old. She attained her majority on November 6, 1961 and thereafter on June 16, 1962 brought this suit for an accounting against defendants Feleciea Cole, James B. Marks and Western Surety Company, who are, respectively, the originally appointed administratrix of the estate, the succeeding administrator de bonis non, and the surety on the bond of the administratrix. Plaintiff appeals from a judgment of the trial court dismissing her first amended petition.
The allegations of the petition are, in substance, here set out: (1) Plaintiff's father departed his life on or about January 14, 1954, and was survived by defendant Feleciea Cole, his wife, and by two sons and a daughter who is plaintiff herein. (2) At the time of her father's death plaintiff was an infant 13 years. She became of legal age on November 6, 1961. (3) On October 19, 1954, the Probate Court appointed defendant Feleciea Cole as administratrix of the estate. She duly qualified and filed her fiduciary bond in the sum of $3000.00, with defendant Western Surety Company as surety, binding her to the faithful performance of her duties. (4) Defendant administratrix did not faithfully discharge her trust and breached the conditions of her bond in that some time prior to December 5, 1955, she wrongfully appropriated $3000.00 of the estate's funds to her own use and has never accounted to plaintiff for her share or interest therein. (5) Thereafter, the probate court revoked the appointment of Feleciea Cole as administratrix and appointed defendant Marks as administrator de bonis non, in which capacity he acted until final settlement was made on December 5, 1955. (6) Thereafter defendant Feleciea Cole formally waived all of her interest in the estate. (7) During the period from June 3, 1955, to December 5, 1955, the defendants entered into an illegal combination and conspired together to deprive plaintiff of her interest in the assets of the estate, in that (a) defendant Western Surety Company, responding to Feleciea Cole's default as administratrix, paid into the estate the sum of $2988.48; (b) thereafter the defendant Marks as administrator de bonis non paid claims and costs of the estate and retained a balance in his possession available for distribution under the laws of descent and distribution; (c) defendant Marks did not make such distribution to the persons lawfully entitled thereto, including plaintiff, but (d) 'did on or about the 3rd day of December 1955, conspire, confederate and fraudulently cooperate with the Defendant Western Surety Company and the Defendant Feleciea Cole to illegally and unlawfully pay said balance in said estate to the Defendant Western Surety Company, such defendant having no interest in said estate and being not entitled to the said balance therein, all without proper authorization or order of the Probate Court of Henry County, Missouri, and did thereafter conclude and close said estate'. (8) All of the aforesaid acts and agreements of the defendants and the payment of the $2300.00 balance of estate assets to defendant Western Surety Company and the closing of the estate by defendant Marks were made and done without plaintiff's knowledge or consent and at a time when she was a minor without any legally appointed guardian to protect her interest. (9) The defendant Western Surety Company has in its possession, illegally and without authority of any court, estate funds totaling $766.66 that belong to and are the property of plaintiff. (10) Despite plaintiff's due demand, defendant(s) have refused to account for or pay to plaintiff the sum of $766.66, with interest thereon, which represents her one-third share in the remaining estate assets.
The petition prays a decree of court requiring defendants to account to plaintiff for the sum of $766.66, with interest, for a judgment in plaintiff's favor against defendants for the sum of $766.66, with interest, and for other and further relief generally.
Defendant Feleciea Cole made no appearance, filed no pleading and stands in default. Defendant Marks filed a motion to dismiss plaintiff's petition on the general ground that it fails to state a cause of action. Defendant Western Surety Company likewise filed a motion to dismiss the petition on the grounds (1) that the pleading fails to state sufficient facts upon which the court might grant relief to plaintiff; (2) that plaintiff is barred by the limitation provided in Section 473.213 V.A.M.S.; (3) that since the intended suit is an action on an administrator's bond, it is improperly brought in plaintiff's name and must, by requirement of law, be brought in the name of the state, and (4) that the decree of final distribution in the estate, from which no appeal was taken, is a final judgment barring the suit. The trial court sustained both motions without specifying any reason for its action.
Absent from this appeal is any question of whether plaintiff's action is barred by the limitation of Section 473.213 V.A.M.S. Although that contention was made in one of the motions to dismiss, it is not before us here. Defendants have abandoned the point inasmuch as their brief is silent on the subject. For that matter, it is our opinion that the statute of limitation applicable in this case would be the five year statute Section 516.120(5) V.A.M.S., since this suit appears to be an attempted 'action for relief on the ground of fraud' * * * not a suit on the surety bond. Plaintiff filed her action within less than a year after she became twenty-one years of age. Therefore, under the saving provisions of Section 516.170 V.A.M.S. her suit was timely and unaffected by the bar of any limitation.
The remaining issues raised by the briefs of the parties and requiring decision are (1) whether the petition was properly filed in the name of plaintiff Sharon Cole Stark or should have been brought in the name of the State of Missouri as defendants contend, (2) whether the petition is sufficient to state a cause of action against defendants for an accounting, and, (3) whether or not the attempted action is a collateral and unauthorized attack on a final and conclusive judgment. These questions will be considered in that order.
Defendants base their contention that the suit should have been brought in the name of the state on argument that it is an action on the administratrix's bond, governed by Section 473.217 V.A.M.S., which provides that view regarding the nature of the suit. We consider that plaintiff's case is bottomed on allegations of fraud and conspiracy on the part of defendants, designed to deprive plaintiff of her distributive share of the estate, all occurring after the surety had performed its obligation under the bond by paying into the estate the sum of $2988.48. The cause of action pleaded is one personal to plaintiff, and unaffected by the cited statute. The suit was properly brought in her own name.
Nor is there any merit in defendants' insistence that the petition failed to state a cause of action against them for an accounting. Defendants are not supported in this contention by their own cited authority, which discloses that a sufficient ground for invoking equitable jurisdiction for an accounting is 'the existence of a fiduciary relationship with a duty resting upon the defendant to render an account'. 1 Am.Jur.2d, Accounting, Sec. 51, p. 423 (). The same authority further states in Sec. 52, pp. 424-425, 'Courts of equity have original jurisdiction to state and settle accounts, or to compel an accounting, where a fiduciary relationship exists between the parties and a duty rests upon the defendant to render an account'. 1 Furthermore, equity has jurisdiction to compel an accounting where fraud is charged, and may exercise jurisdiction in actions arising out of a tort and decree an accounting where there is a proven allegation of fraud, especially where in addition there is an additional ground for jurisdiction such as the existence of a fiduciary relationship. See 1 Am.Jur.2d, Accounts and Accounting, Sec. 55, p. 428; also see Expansion Realty Co. v. Geren, Mo.App., 170 S.W. 928. All of the foregoing is particularly supportive of the propriety of an equitable accounting in this case--considering that the highest order of fiduciary relationship flows from the trust owed by an administrator to an infant beneficiary of the estate in his hands.
On the remaining appeal issue we rule that defendants are correct in their contention that under the facts alleged in plaintiff's petition the judgment of the probate court finally settling the estate and discharging the administrator, which amounts to an adjudication that the sum of $2300.00 paid back to the surety was a proper item of credit, is conclusive against any and all proceedings other than a direct attack to set aside and vacate the same on the ground of fraud or other recognized grounds for equitable relief. Included among numerous Missouri decisions so holding are Gorg v. Rutherford, Mo.App., 31 S.W.2d 585 and Mueller v. Grunker, Mo.App., 123 S.W. 469, (both cited by defendants). '[A] final settlement and order or distribution in the probate court has the force of a judgment as to all matters necessarily...
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