State ex rel. Frank v. Adm'r of Frank
| Decision Date | 31 October 1872 |
| Citation | 51 Mo. 98 |
| Parties | THE STATE OF MISSOURI ex rel., ETC., TO USE OF MINNA FRANK, Defendant in Error, v. ADMINISTRATOR OF JOHN A. FRANK et al., Plaintiffs in Error. |
| Court | Missouri Supreme Court |
Error to Cape Girardeau Circuit Court.
Dennis & Wilson, for plaintiffs in errors.
W. W. Cramer, for defendant in error.
The petition alleges that John A. Frank was appointed administrator of the estate of George D. Frank, father of Minna Frank; that he executed the usual administration bond, with the other defendants as sureties, but that by accident or mistake the bond omitted to specify the penal sum; and plaintiffs ask for its reformation by filling the blank. The petition does not name any specific sum which was supposed to have been inserted, nor does it allege that it was executed in blank, with authority to fill it up, which those interested neglected to do. The defendants demurred, the demurrer was overruled, and judgment was given according to the prayer of the petition.
The right to reform a bond against sureties has been sometimes denied (Ward v. Wibber, 1 Wash., Va., 274; Harrison v. Minge, 2 Wash., Va., 136), but it is, notwithstanding, well settled that courts will make these instruments, as well as others, what the parties intended and supposed them to be, and against sureties as well as against principals. (Crowly v. Middleton, Prac. in Ch. 309; Harris, Adm'r, v. Pitman, 2 Hay, N. C., 331; Wiser v. Blackley, 1 Johns. Ch. 609; Burg v. Radcliffe, 6 Johns. Ch. 302.) But there must be clearness and certainty in showing the mistake. Every presumption is in favor of the instrument as it is, and the evidence must be unequivocal to show both that an error was committed and also its precise character. This implies the ability to show the language the parties intended to use. In the present case, that there was a mistake is sufficiently clear. A bond was filed, regular in all its parts except the filling of a blank, in the usual printed forms, with the amount of the penalty. Letters were issued and the estate settled. The court would be warranted in assuming that the parties intended to insert a penalty, and that the Probate Court supposed it was in the bond when approved. Without such intention their action would be a fraud and imposition on the court, which will not be presumed. But there is nothing in the petition to show what the penalty was, and hence the demurrer should have been sustained. The...
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Hart v. Leete
...consideration has no application to this case. Fifth. There is no data for reforming the contract, no evidence on which to do it. State v. Frank, 51 Mo. 98; Modrell v. Riddell, 82 Mo. 31; Brohammer v. Hoss, 17 Mo.App. 1. Sixth. There was no issue at the trial concerning the existence of any......
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Byers v. Buettner
...instruments, including deeds to real estate and receipts, express the true and full intention of the parties. State ex rel. Frank v. Adm'r of Frank et al., 51 Mo. 98; Kohnke v. Kohnke (Mo.), 250 S.W. 53, l.c. 57. (4) In weighing the evidence in a suit for reformation of a written instrument......
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Luker v. Moffett
...the rule to show mistake must be most clear and convincing. Judson v. Mullinax, 145 Mo. 630; Koontz v. Owens, 109 Mo. 1; State ex rel. Frank v. Admr. etc., 51 Mo. 98; Robinson v. Korns, 250 Mo. 663. (4) The burden on plaintiffs and defendant to show by cogent proof that the mistake claimed ......