State v. Stuart

• Decision Date: 21 March 1905
• Citation: State v. Stuart, 111 Mo. App. 478, 86 S.W. 471 (Mo. App. 1905)
• Parties: STATE ex rel. CARDWELL v. STUART et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

86 S.W. 471

111 Mo. App. 478

STATE ex rel. CARDWELL v. STUART et al.^*

St. Louis Court of Appeals. Missouri.

March 21, 1905.

RELEASE—OBTAINMENT BY FRAUD—PLEADING —LIMITATIONS — APPEAL—LAW OF CASE— ADMINISTRATORS—FAILURE TO ACCOUNT.

1. The fact that an intestate owed her administrator a sum larger than the value of the estate left by her did not excuse the administrator for a failure to inventory and account for all the money collected by him as administrator, but his remedy to collect his debt was to present his claim to the probate court for allowance, and to have a special administrator appointed as prescribed by Rev. St. 1899, § 205.

2. A release or acquittance executed by one misled as to its meaning and effect, or incapacitated, through mental infirmity, disease, or otherwise, to make a contract, is ineffectual to defeat an action.

3. A decision on a former appeal as to the construction of instruments in issue is the law of the case, and binding on subsequent appeals.

4. Rev. St. 1899, § 654, authorizing releases pleaded in bar to be avoided for fraud by the reply, and requiring the issues thus raised to be submitted to the jury, deals only with remedies, and not with rights, and applies to actions pending at the time of its passage.

5. A petition on an administrator's bond, assigning as the breach the administrator's failure to inventory and account for all the assets of the estate in his hands, and the conversion of a part of such assets to his own use, states a cause of action, without further alleging that a settlement and release relied upon in defense was obtained by fraud.

6. Under Rev. St. 1899, § 654, authorizing releases pleaded in bar to be avoided for fraud by the reply, and requiring the issues thus raised to be submitted to the jury, fraud in the obtainment of a release is in the nature of a confession and avoidance of the answer setting up the release as a bar, and consequently, where the original action is brought within the period of limitations, and a release is pleaded in bar, a reply or amended reply, alleging fraud, may be interposed, although the 10-year limitation period prescribed by Rev. St. 1899, § 4273, as the utmost limit within which actions for fraud may be brought, has elapsed when such reply is sought to be interposed.

Appeal from Circuit Court, Audrain County; Houston W. Johnson, Judge.

Action by the state, on the relation of Charles Cardwell, against William Stuart and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Fry & Rodgers, for appellants. George Robertson, for respondent.

GOODE, J.

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 amount 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 the said Rachel she was possessed of the sum of $2,500 in money, notes, and other personal property; that William Stuart qualified as administrator of her estate, 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 $750, and accounted only for the sum of $820 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 $2,500, 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 $1,780 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 $1,780, 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, contains 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 $750, 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 23d 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 defendants' fifth defense, and specifically denies that this plaintiff did, in writing duly executed, sell, deliver, and assign to the 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 defendants' 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...