Townsend v. Townsend
| Decision Date | 31 May 1875 |
| Citation | 60 Mo. 246 |
| Parties | SARAH K. TOWNSEND, ADMINISTRATRIX, ETC., Appellant, v. JOHN H. TOWNSEND, SURVIVING PARTNER, ETC., Respondent. |
| Court | Missouri Supreme Court |
Appeal from Chariton Circuit Court.
L. H. Waters, for Appellant.
A final settlement may be reviewed and impeached for fraud. (Jones vs. Brinker, 20 Mo., 87; State, to use, vs. Roland, 23 Mo., 98; Sullivan Co. vs. Burgess, 37 Mo., 300.)Charles A. Winslow, for Respondent.
The matters complained of in the petition were all once tried in the Probate Court, and a judgment rendered on them, which remains unreversed and is conclusive. The evidence discloses no fraud or collusion in procuring it, and for any mistake of law or fact the Probate Court may have made in the premises, it cannot be disturbed in this proceeding. (Lewis vs. Williams, 54 Mo., 200, and cases cited.)
In May 1866, Luke Townsend and John H. Townsend, formed a partnership by which they sold goods in the town of Brunswick, Chariton county, until February, 1867, when Luke Townsend died.
After the death of Luke Townsend, Sarah K. Townsend, the plaintiff, administered on his estate; and John H. Townsend, the defendant, under the provisions of the statute of this State, administered on the partnership effects of said firm; and on the 13th of July, 1871, after giving the notice required by law, made his final settlement in the Probate Court as such administrator.
This suit was brought to set aside said final settlement, and to have an account taken of the partnership effects, etc., on the ground that the final settlement was fraudulently procured.
The grounds of fraud relied on by the plaintiff in her petition, are, that the defendant omitted to include in his inventory, part of the partnership effects; that he falsely represented by said inventory that he was the owner of an undivided half of the property and effects of said partnership, when the fact was to the contrary thereof; that he had failed, in his different settlements with the Probate Court, to account for the property and effects named in his inventory; that in his said settlements, he had credited himself with larger amounts than he was entitled to, and had failed to charge himself with proper amounts of interest, etc.
The defendant in his answer denied all fraud and all allegations in the petition charging improper conduct on his part; and then, as a defense to plaintiff's action, averred that the Probate Court of Chariton County had full jurisdiction over said estate and over all of the settlements of defendant in reference thereto; that he had conducted the administration of said estate before and in said Probate Court; and had made his different settlements with said court, including his final settlement which was made with and approved by said court; that when his final settlement was made in said court, the plaintiff appeared...
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