Foster v. PettijohnFoster v. Pettijohn
Mina Wright died pending the appeal. Plaintiff had the cause revived against James H. Pettijohn, executor of the estate of Mina Wright, deceased, who entered his appearance; and on April 28, 1948, plaintiff submitted her appeal for determination.
Plaintiff‘s original cause of action had been twice appealed.1 The instant petition, as has been observed of prior petitions, is long and verbose in averments, setting forth evidence and conclusions of the pleader in addition to facts, and the claims or issues are confused. (See 235 Mo. App. 1. c. 416, 141 S. W. 2d 1. c. 132.) Section 35 of the new Civil Code (Laws 1943, p. 369,
Plaintiff alleges George Wagner orally agreed to adopt her about 1881, when she was about two years of age, and she was reared in the home of said Wagner and his wife and performed her part of the agreement; that Wagner died testate July 3, 1919, the owner of real and personal property; that his will gave most of his estate to his widow; that Wagner had failed to file letters of adoption and plaintiff was not mentioned or provided for in his will; that on March 2, 1923, plaintiff sued Frank Petree, administrator with the will annexed of said Wagner‘s estate, and the beneficiaries named in said will and heirs of said Wagner, praying to be decreed Wagner‘s adopted child and pretermitted heir; that Petree represented certain notes in said estate were worthless and plaintiff‘s share as the child of said Wagner would not exceed $5,000, and agreed to pay plaintiff $5,000 and to give judgment of adoption and to pay her a child‘s share in said estate; that said administrator paid plaintiff‘s attorneys $5,000 but no decree that plaintiff was said Wagner‘s adopted child was ever entered; that thereafter said worthless notes were paid, said Petree receiving about $29,000; that plaintiff learned about April 1, 1932, of said payment and that the judgment had not been entered; that on August 26, 1936, “within ten years from the date of payment to her of said $5,000” and within five years of her discovery of said fraud, she sued said administrator and the beneficiaries and heirs aforesaid, praying for a “decree establishing her status as the adopted daughter and pretermitted heir of said” Wagner and awarding her the remainder of said estate, alleging fraud on the part of said administrator respecting said “worthless notes.” A demurrer was sustained to plaintiff‘s said petition. Plaintiff appealed to the Kansas City Court of Appeals, which court affirmed said judgment (235 Mo. App. 414, 141 S. W. 2d 131), but the Supreme Court, upon certification, reversed the judgment and remanded the cause for trial upon the merits (347 Mo. 992, 149 S. W. 2d 851). Frank Petree, administrator aforesaid, died soon thereafter. Mina Wright thereupon became administratrix cum testamento annexo de bonis non of said Wagner‘s estate. She filed an answer denying plaintiff was the adopted child of said Wagner. On October 8, 1941, plaintiff voluntarily dismissed said original suit.
In addition to the principal cause of action set forth in plaintiff‘s original suit, plaintiff‘s instant amended petition mentions additional claims. It charges Oklahoma deed records show that Petree, as administrator aforesaid, sold certain Oklahoma lands belonging to the estate of George Wagner, deceased, in 1927, and received $5,100 therefor; that Petree misappropriated said money, and that Mina Wright, as administratrix aforesaid, knew said fact when she received her discharge as administratrix. There is no charge that she ever received any of said money. Another charge is that about six months after her discharge as administratrix aforesaid, Mina Wright sold “as administrator in Missouri and not in Oklahoma,” the interest of George Wagner, deceased, in certain Oklahoma real estate for “a consideration of $10.00 subject to taxes and incumbrances” and failed to account therefor.
Plaintiff prayed that she be decreed the adopted daughter of said Wagner; that the orders of the probate court affecting said estate be declared void, including, among others specifically mentioned, the order and judgment giving effect to the settlement of plaintiff‘s share and the approval of the final settlement of said estate; that Mina Wright, as executrix of the estate of Frank Petree, deceased, account for the aforementioned $29,000 collected by Petree and the aforesaid $5,100 Petree received for [490] Oklahoma real estate, and also the $10 she failed to account for, et cetera, and that plaintiff be decreed the owner of the assets in said estate.
Plaintiff was not a natural child of testator and his will did not mention or provide for her. Plaintiff, to prevail, must be in a position to establish herself as the adopted child of deceased and prove her charges of fraud against Frank Petree. Section 1014, provides that actions for fraud are to be brought within five years, to wit: “fifth, an action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.” Thus, the action is to be brought within fifteen years in any event and if the fraud be discovered prior to the lapse of ten years, then within five years after its discovery. Plaintiff discovered the fraud respecting the “worthless notes” in April, 1932; and her original suit of 1936 was held to be timely and the cause was remanded in April, 1941, “with directions to reinstate the petition
Plaintiff says she filed the instant suit on May 18, 1946, and within one year of the aforesaid judgment of May 21, 1945, dismissing her suit of October 5, 1942, which followed her voluntary dismissal on October 8, 1941, of her 1936 suit; and she contends the refiling of her suits within one year after the dismissal of her last prior suit has kept her cause of action alive under the saving provisions of Sec. 1026. Section 1026 is to the effect that if an action be timely commenced within the provisions of Arts. 8 and 9 of Ch. 6, R. S. 1939, “and the plaintiff therein suffer a nonsuit . . . such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered . . .” In construing similar statutes of other states it has been held that a plaintiff may not suffer an indefinite number of nonsuits and institute an indefinite number of actions provided each successive new action be brought within one year of the preceding nonsuit; and that new actions are not authorized after the lapse of the limitation period and a year after the original nonsuit. Hunter v. Ward (C. C. A. Ark.), 15 F. 2d 843; Denton v. City of Atchison, 76 Kan. 89, 90 P. 764; Walker v. L. E. Meyers Const. Co., 175 Okl. 548, 53 P. 2d 547, 549; United States F. Ins. Co. v. Swyden, 175 Okl. 475, 53 P. 2d 284, 285[2]; Morrow v. Atlanta & C. A. L. Ry. Co., 84 S. C. 224, 244, 66 S. E. 186, 19 Ann. Cas. 1009; Annotation, 83 A. L. R. 487(VI); 34 Am. Jur. 226, Sec. 279, n 5; 54 C. J. S. 345, Sec. 287 (a). See quoted observation in Kline v. Groeschner, 280 Mo. 599, 612(IV), 219 S. W. 648, 651[9].
What we have just said would dispose of the main charge against defendants; that is, plaintiff‘s original claim based on the alleged $29,000 fraud of 1923 and originally against Petree as administrator aforesaid and the beneficiaries and heirs of testator. In addition, the instant appeal stands submitted by plaintiff for determination against Mina Wright as an individual through James H. Pettijohn as executor of the estate of Mina Wright, deceased, and against E. F. Kearney, as Probate Judge aforesaid, respondents here, and plaintiff seeks to inject additional claims, to wit: the $5,100 fraud occurring in 1927 and a $10 fraud alleged to have occurred after the
Plaintiff‘s petition does not charge E. F. Kearney with fraud. The complaint is that error was committed in the orders and judgments entered in the probate court in the administration of the estate of George Wagner, deceased. This is not the statement of a cause of action against him.
Mina Wright was also sued in the trial court as administratrix d. b. n. c. t. a. of the estate of George Wagner, deceased, and also as executrix of the estate of Frank Petree, deceased. Plaintiff‘s right to sue her as administratrix aforesaid has passed into the realm of things adjudged, plaintiff‘s cause of action against said defendant in said representative capacity having been held not maintainable under the facts in Foster v. Wright (Mo. App.), 187 S. W. 2d 974. The opinion in that case states the documentary evidence established that Mina Wright had committed no fraud against plaintiff but had accounted for all assets coming into her hands. (187 S. W. 2d 1. c. 975.)
What we have said hereinbefore respecting limitations would apply to Frank Petree individually, represented by Mina Wright as executrix of the estate of Frank Petree, deceased, in the trial court.
The record recites that “documentary evidence referred to by the court in his memorandum” upon dismissing plaintiff‘s original petition herein by agreement was also to be considered in ruling the motions to dismiss the amended petition. The trial court should not be convicted of error if documentary evidence was before it by agreement without also considering said evidence upon review. Plaintiff has not included all documentary evidence mentioned in said memorandum. The trial court found that by the settlement of 1923 plaintiff received the $5,000 in full satisfaction of her claims against the estate of said Wagner. Plaintiff had a right to thus settle. She has no interest in the estate if she settled in full and it would be too
The judgment is affirmed. Westhues and Barrett, CC., concur.
PER CURIAM:—The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. Leedy and Ellison, JJ., concur; Tipton, P.J., not sitting.