Garr v. Harding

37 Mo. App. 24 | Mo. Ct. App. | 1889

Gill, J.

Although the record entry of judgment in the circuit court is awkwardly framed, it was clearly the intention of that court to disallow the amount claimed as paid on the claim of eight hundred and forty-five dollars. And we shall assume that such claim was rejected for the reasons presented by the exceptant heirs (these plaintiffs), to-wit: That it was an unjust, illegal and fraudulent claim charged upon the estate by and through the bad faith and fraudulent, collusion of the administrator. There is in fact but one material point here for our consideration, since the testimony, as brought up in this record, well sustains the facts, as above found by the trial judge. The question is this : Is the court, having charge of the settlement of estates of deceased persons, justified in disallowihg a payment made by an administrator on a false and fraudulent claim theretofore allowed by the probate court, when it is shown to have been there allowed by the collusive practices and active bad faith of such administrator % To the credit of those administering estates, it can be said that the books are almost barren of exact precedents. But to the credit of the law, be it said, however, that in the two cases cited (and all that industrious and skilful counsel have been able to cite), which present this question, the courts have answered our queere in the affirmative.

In Dullard, Adm’r, v. Hardy, Adm’r, 47 Mo. 403, is reported a case, the one feature of which is quite parallel, in principle, to the point here. The administrator, knowingly, and fraudulently, permitted, without objection, an insolvent claimant to prove up a claim of two hundred and fifty dollars against the estate, when, as he knew, there was a valid set-off of two hundred dollars, and the estate therefore only owed the claimant fifty dollars instead of two hundred and fifty dollars. However, the administrator concealed this knowledge, permitted the fraudulent judgment for two hundred and fifty dollars, and, having paid the same, asked an allowance in his accounts-

The item was disallowed by the probate court for another reason, bnt the supreme court held that it may have been rejected for the reason that the administrator thus fraudulently consented to the unjust allowance. In answer to the suggestion that such judgment of allowance could not thus be collaterally attacked, among other things, the court in case supra said: “If the payment was made corruptly, and with a view to hamper, embarrass and defraud the estate in respect to the set-off, I do not think, under the circumstances' already adverted to, that the judgment can be successfully invoked in justification of the fraud.” It was there said too: “ That the judgment of allowance and classification is not assailed, although the evidence shows that it ought never to have been rendered.” So here the judgment' will stand, and yet this unfaithful trustee will not be permitted to get credit for paying what he knew to be an unjust charge, imposed on the estate by means of his own fraudulent practices.

A like opinion, in a similar case, was held in a late case in New Jersey. Hurlburt v. Hutton, 15 At. Rep., p. 417. Says the court: 4 4 There can be no objection to an inquiry as to the good faith of the executors of the estate of Mr. Hutton touching this judgment. If it was the product of bad faith, on their part, they cannot be allowed for its payment. This is not an inquiry as to the validity of the judgment, etc. * * * If the judgment was not the product of their .bad faith to the estate, they should have the desired credit, but if it was concocted by them, or with their assent, for the purpose of charging the estate unduly, they should not be allowed the credit they ask.”

Following then the spirit of these adjudications, we cheerfully approve the finding and holding of the circuit court. But, owing to the erroneous entry of its judgment we shall reverse and remand the cause with instructions to that court, to enter up a judgment in proper form, disallowing and disapproving the final settlement of Harding,-the administrator, in so far as the credit of seven hundred and live dollars is concerned, and to certify such ruling and judgment to the probate court of Putnam county.

The other judges concur.