Wyatt v. Wilhite
| Decision Date | 06 March 1916 |
| Citation | 183 S.W. 1107,192 Mo.App. 551 |
| Parties | U. V. WYATT, Admr. of the Estate of MARY P. WILHITE, deceased, Appellant, v. A. W. WILHITE, Jr., Respondent |
| Court | Kansas Court of Appeals |
Appeal from Cass Circuit Court.--Hon. A. A. Whitsett, Judge.
AFFIRMED.
Judgment affirmed.
J. F Rhodes and T. N. Haynes for appellant.
Allen Glenn & Son and C. W. Sloan for respondent.
--Plaintiff, as administrator of the estate of Mary P. Wilhite, deceased, brought this suit August 6, 1913, in the circuit court of Cass county, to recover certain sums of money due from defendant to his intestate at the time of her death which occurred in Jackson county, July 18, 1910. The petition alleges, in substance, that A. W. Wilhite, Sr., the father of defendant, died in Jackson county, intestate in 1903, possessed of real and personal property in Tulsa, Oklahoma (then Indian Territory); that Mary P. Wilhite, his widow, under the laws in force in the Indian Territory, became the absolute owner of an undivided one-third share of all that property; that afterward and until her death the defendant collected rents from the real estate in the total sum of $ 4996.11; received as proceeds of sales of such real estate $ 5587.50, and collected deposits in Tulsa banks belonging to the estate of $ 1311.50; and that defendant failed to pay over to Mrs. Wilhite her one-third share of those funds or any part thereof except $ 48.40, which defendant paid to plaintiff after her death. There are other allegations but those referred to suffice to give an understanding of the nature of the pleaded cause which, in brief, may be classified as an action for money had and received. The nature of the defenses interposed in the answer will be disclosed in our statement and discussion of the case.
Plaintiff's intestate was the second wife of Wilhite, Sr., the wife of plaintiff was their daughter, and defendant was the offspring of a former marriage. The present controversy proceeds mainly from the contention that first as administrator of his father's estate and afterward as the agent of the heirs, including the widow, defendant received the proceeds from the rental and sale of the Tulsa real estate and from the personal estate at that place which, so far as the share of the widow was concerned, he wrongfully diverted to the payment of debts of the estate, taxes, expenses for repairs, etc., when he should have paid over to the widow one-third of the gross receipts from such sources without any such deductions. There is no suggestion in the evidence that defendant converted any funds of the estate to his own use and his defenses are that he properly disposed of the funds that came to him as administrator and afterwards as agent of the heirs; that all the issues tendered by plaintiff are res adjudicata and that plaintiff, as administrator of the widow's estate is estopped by her participation in the administration of her husband's estate and her approval of defendant's final settlement therein from asserting that she did not receive her full share.
To condense our statement of facts to the smallest practical compass, we shall concede for argument that during the seven years preceding the death of the widow, defendant had charge of his father's estate, as administrator, and afterwards as agent he made disbursements out of the proceeds he received from the real and personal estate at Tulsa "for taxes, insurance, assessments, repairs and other debts of the estate" and accounted and paid over to the widow one-third of the net proceeds instead of one third of the gross proceeds as he should have done under the laws of the Indian Territory relating to dower.
Defendant was appointed administrator of his father's estate by the probate court of Cass county at the request of the widow who, following the death of her husband, removed to that county from Jackson county, where he had died. He left real and personal property in both those counties and in the appointment of defendant the court found that he was a resident of Cass county at the time of his death.
The appointment of an administrator must be regarded as a judgment of a court of record which cannot be attacked in a collateral proceeding, nor invalidated by proof that at the time of his death the deceased was a resident of another county. [Johnson v. Beazley, 65 Mo. 250; Hadley v. Bernero, 103 Mo.App. 549, 78 S.W. 64; Cox v. Boyce, 152 Mo. 576, 54 S .W. 467; Seafield v. Bohne, 169 Mo. 537; Smith v. Young, 136 Mo.App. 65, 117 S.W. 628.] This being a collateral proceeding the appointment of defendant as administrator of his father's estate must be regarded as res adjudicata, though the court erroneously found the deceased was a resident of Cass county. [Austin's Est. 73 Mo.App. 61; In re Est. of Davison, 100 Mo.App. 263, 73 S.W. 373; Connor v. Paul, 138 Mo.App. 13, 119 S.W. 1006; State v. Schenkel, 129 Mo.App. 224, 108 S.W. 635.]
In his annual and final settlements defendant charged himself with the receipts from the Tulsa estate as well as those from the estate in Missouri, and credited himself with disbursements on account of the estate including those made to the widow and those for taxes, insurance, repairs, etc., on the Tulsa property. These settlements were approved by the court with the consent of the widow who, with her lawyer, appeared at the final settlement and announced her approval and consent that defendant be discharged as administrator. On this occasion, which was in May, 1907, she gave her receipt to defendant for the distributive share of one of the minor heirs for whom she was curatrix. After his discharge, defendant continued in charge of the remaining Tulsa property as agent of the widow and heirs and pursued the same course he had followed during the administration. He collected rents, received the proceeds of sales of property, paid taxes, insurance, expenses of repairs and other such expenses, and then divided the net proceeds among the heirs and widow. She made no protest or complaint, but acquiesced in such disbursements and distributions and died without ever having raised a question about the propriety of defendant's course of dealing with the property.
The law is most zealous in the protection of dower and kindred statutory rights of widows. As is well observed by LAMM, J., in Chrisman v. Linderman, 202 Mo. 605, 100 S.W. 1090:
But dower and kindred rights of the widow in her deceased husband's personal estate may be conclusively determined and pass into the domain of things unalterably settled by a final judgment rendered by a court of competent jurisdiction just as issues of life and liberty may be finally adjudicated. The principle and rules of the doctrine of res adjudicata apply to such rights with the same force as to others.
All of the rights of the widow in and to her husband's estate which were properly brought before the probate court of Cass county in the annual and final settlements of defendant were finally adjudicated since the judgment approving the final settlement was rendered with her consent and was not subsequently attacked by her in a direct proceeding. It is well settled that a final settlement of an administrator made in accordance with the statutes has the force and effect of a final judgment; is binding upon all parties interested and may only be set aside for the same reasons and in the same time and manner applicable to other judgments of courts of record. [Patterson v. Booth, 103 Mo. 402, 15 S.W. 543, et seq.; State ex rel. v. Gray, 106 Mo. 526, 17 S.W. 500; et seq.; Smith v. Young, 136 Mo.App. 65, 117 S.W. 628; Michie v. Grainger, 149 Mo.App. 301, 129 S.W. 983; Murray v. Roberts, 48 Mo. 307; Woodworth v. Woodworth, 70 Mo. 601; Einstein v. Strother, 182 S.W. 122.]
The rule thus is stated in Patterson v. Booth, supra, l c. 419: ...
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