State ex rel. Cardwell v. Stuart

• Decision Date: 21 March 1905
• Citation: State ex rel. Cardwell v. Stuart, 86 S.W. 471, 111 Mo.App. 478 (Mo. App. 1905)
• Parties: STATE ex rel. CARDWELL, Respondent, v. STUART, et al., Appellants
• Court: Missouri Court of Appeals

86 S.W. 471

111 Mo.App. 478

STATE ex rel. CARDWELL, Respondent, v. STUART, et al., Appellants

Court of Appeals of Missouri, St. Louis

March 21, 1905

[Copyrighted Material Omitted]

Appeal from Audrain Circuit Court.--Hon. Houston W. Johnson, Judge.

AFFIRMED.

STATEMENT.

Though the facts of this case have been stated in previous decisions, it will be more convenient to those who may have occasion to read the opinion on the present appeal to restate them. It is an action on the bond of William Stuart as administrator of the estate of Rachel Stuart (once Rachel Cardwell) deceased. The action is against Stuart and one of his sureties. The relator Charles Cardwell, is the son and only heir of said Rachel by her first husband. She was married to Stuart in 1890 and died intestate, April 22, 1893. Stuart qualified as administrator of her estate May 16, 1893 and filed in the probate court of Audrain county an inventory and appraisement of the assets, July 8, 1893. The appraisement fixed the value of the assets at $ 750. Stuart's final settlement was filed September 17, 1896 approved the same day and he was discharged as administrator the next day, September 18th. The final settlement was as follows:

"To amounts received per inventory

$ 750.00

By cash costs

2.50

By cash publication of notice

7.50

By cash note of W. R. Kemp

58.00

By cash paid C. C. Cardwell

750.00

Total paid out

$ 818.00"

The original petition in this case was filed August 8, 1896, and an amended petition, not very different from the original one, August 29, 1902. The latter pleading states, in substance, that the relator is the sole heir of Rachel Stuart; that at the time of the death of said Rachel she was possessed of the sum of $ 2500 in money, notes and other personal property; that William Stuart qualified as administrator of her estate, and furnished a bond in that capacity which provided that if Stuart should faithfully administer the estate of the deceased, account for and deliver all money and property belonging to it, and perform all other things touching his administration, required by law or ordered or decreed by any court having jurisdiction, the bond should be void; otherwise remain in full force. The petition then proceeds to state a breach of the condition of the bond, as follows:

"That the said William Stuart only inventoried the sum of seven hundred and fifty dollars and accounted only for the sum of eight hundred and twenty dollars as belonging to and as the estate of said deceased, and by virtue of his office as administrator of said estate, he took into his charge and into his possession as such administrator the entire sum of two thousand five hundred dollars, which he retains and has converted to his own use and refuses to account for in the probate court of Audrain county.

"Plaintiff further says that although the said defendant, William Stuart, has been requested and importuned to inventory the whole of said estate, he refused to do so, and retains one thousand seven hundred and eighty dollars belonging to said estate and which would go to said Charles Cardwell upon the final distribution of said estate, as the sole heir of said deceased. Said estate is not indebted or otherwise involved.

"Wherefore plaintiff says that he is damaged in the sum of one thousand seven hundred and eighty dollars and interest thereon at the rate of 6 per cent per annum since the 16th day of May, 1893 for which he asks judgment and costs. A certified copy of said bond is herewith filed and made an exhibit to this petition."

The answer filed September 15, 1902, contained a general denial of the statements of the petition and also special defenses, all of which need not be noticed; but one is important and we copy the allegations in regard to it:

"For another and further answer to plaintiff's amended petition, defendants state that long prior to the final settlement of said estate as aforesaid, on July 23, 1893, in consideration of seven hundred and fifty dollars, cash, paid by said defendant, William Stuart, to the relator herein, and for other good and valuable considerations, said relator, Charles Cardwell, did in writing duly executed, sell, transfer and assign to the said William Stuart, his entire interest in said estate, so that from and after said last named date, the relator had not and has not now any interest in said estate.

"Defendants further say that this defendant, William Stuart, relying upon said action on the part of said relator, the defendant William Stuart as such administrator, did on the 23rd day of July, 1893, receive from said relator a final receipt in full payment and satisfaction of his, said relator's share and interest in said estate, this defendant at the time advancing and paying to him, said relator, $ 750 cash, which said written receipt said defendant filed with his final settlement in said probate court, and he was on September 17, 1896, by said court discharged as such administrator.

"Defendant therefore, states that said relator had no interest in said estate, and has not been and could not be damaged as claimed in plaintiff's said petition, and is not entitled to recover, and defendants ask for judgment for costs."

To the answer a replication was filed October 4, 1902, containing the following allegations regarding the special defense above stated:

"Plaintiff further replying, denies each and every allegation as made and set up in defendant's fifth defense, and specifically denies that this plaintiff did, in writing duly executed, sell, deliver and assign to said William Stuart his interest in said estate or any part thereof. And plaintiff further says that the said defendant, William Stuart, as such administrator, did pay him the sum of $ 750 in part payment of his interest in said estate, but said plaintiff has never received from said administrator but the sum of $ 750, and there is still a balance coming to him, as alleged in his petition. Plaintiff further replying, denies each and every allegation of defendant's answer, and having fully replied, prays judgment as at first asked in his petition."

On September 21, 1903, an amended replication was filed, in which the documents alleged in the answer to have been executed by the relator to Stuart in release of relator's interest in his mother's estate, are copied and accompanied by the statement that though Stuart, as administrator, had paid relator the sum of $ 750 in part satisfaction of relator's interest in the estate, he had never paid a further balance which was owing. The replication specifically denies that relator ever sold and assigned his interest in his mother's estate to Stuart; states that the two instruments purporting to release his interest were both executed at the same time and as the same act; that they were executed and delivered on the representation of Stuart that there was only $ 750 in the estate and that sum was all that was going to the relator as sole heir of his mother; that relator believed said representation and relied on it and was induced by such belief to execute and deliver the receipt and release; that said instruments were without any consideration whatever, except the payment by Stuart of the sum of $ 750, which Stuart then owed relator and which was only a part of the amount he owed; that said receipt contains words which are a badge of fraud; that the instruments were drawn up and prepared by W. W. Fry, one of the sureties on Stuart's bond, and a defendant in this action, and the execution of the said receipts by relator, the settlement in connection therewith, the payment of the $ 750 covered by the receipt and release, and all the transactions between the relator and the two defendants Stuart and Fry, occurred while Fry was acting as Stuart's attorney; that on account of these facts, the instruments pleaded in bar of plaintiff's action are fraudulent and void and do not release Stuart from further accounting to the relator for the relator's interest in his mother's estate. It should be stated that the petition avers that the money alleged to have remained in the hands of Stuart as administrator, would all go to relator on final distribution, as the estate is not indebted.

The instruments relied on as assignments of relator's interest in his mother's estate are as follows:

"Mexico, Mo., July 26, 1893.

"Received of William Stuart, administrator of the estate of Rachel Stuart, deceased, $ 750, in full payment and satisfaction of my share and interest in the estate of Rachel Stuart, deceased, as a child and heir of said deceased.

"C. C. CARDWELL."

"Mexico, Mo., July 26, 1893.

"In consideration of William Stuart advancing to me my interest in the estate of Rachel Stuart, deceased, and this day as administrator of the estate of said Rachel Stuart, deceased, advancing and paying me my said interest, $ 750, in said estate, I hereby obligate myself not to question or require said William Stuart to pay to said estate any money claim that I may think he owes said estate, or take any proceedings in court or otherwise claiming William Stuart owes said estate anything, but accept this $ 750 in full of my interest.

"C. C. CARDWELL."

The relator Cardwell testified that one day in the summer of 1893, he asked Stuart for some money out of the estate. Stuart said they would go down to Mr. Fry's office soon and in a few moments they went there and Mr. Fry wrote the instruments in question and handed them to relator to read. After reading the papers relator objected to signing them. Stuart declared he would not pay relator anything unless they were signed, at the same time saying, in substance, that $ 750 was all there was of the estate of relator's mother and that he (Stuart) would so swear. Relator said he...