Lenox v. Harrison
88 Mo. 491
Mo.
1885
Check Treatment
Sherwood, J.

This is a proceeding in equity to set aside and annul on the ground of fraud the final settlement of the estate of Wilson Lenox, deceased, made by Thomas C. Harrison, the administrator. Harrison died in 1880, and this proceeding was instituted in 1881. The alleged final settlement occurred in 1874. Upon the hearing of the cаuse the circuit court found that there was no equity in the plaintiffs’ petition, and accordingly dismissed thе same.

I. The plaintiffs allege in their petition that Harrison, the administrator, “fraudulently failed and refused to publish a notice to the creditors and parties, as aforesaid, of his intentions to make his final settlement at that term,” etc. This allegation of itself shows that plaintiffs have no standing in equity, and no right or claim to equitable interposition in their behalf; for it is only ‍​​​‌‌​​​‌‌‌​​​​‌​‌​‌​​‌​​‌‌​‌​​​​‌​​‌‌​‌‌​‌‌​​​‌‍on the basis of there being a final sеttlement, one binding and conclusive at law, that they have the privilege of coming into a cоurt of chancery, and on the-ground of fraud, etc., having their final settlement set aside; obviously, if, as аlleged, there was no notice given as required by statute, then the final settlement was null, and the administration of the estate was still open. Garton v. Botts, 78 Mo. 274. Consequently the remedy of the plaintiffs is ample and adequate at law. And plaintiffs must abide by the case made by their pleading, and can urge nothing inconsistent therewith or repugnant thereto. Capital Bank v. Armstrong, 62 Mo. 59, and cases cited.

*496II. But on the merits it is not apparent that any. error was committed by the lower court in reaching the conclusion which it did. The transactions, many of them, to which this suit relаtes, cover a long period of time, commencing with the grant of letters to Harrison in 1863. This suit was not brought till after his death. In 1881 the storehouse ‍​​​‌‌​​​‌‌‌​​​​‌​‌​‌​​‌​​‌‌​‌​​​​‌​​‌‌​‌‌​‌‌​​​‌‍which he liad formerly occupied was destroyed by fire, and mаny of the books and papers belonging to his estate were destroyed therein. The subject of the favorable presumptions which are indulged in behalf of persons acting in an official сapacity, especially after a long lapse of time has intervened, has been quite extensively discussed in Long v. Joplin M. & S. Co., 68 Mo. 422. In similar circumstances the like lenient presumptions are indulged in favor of persons who occupy no official station. Every one is presumed to govern himself by the rules оf right reason, and consequently that he acquits himself of his engagements and his duty. 1 Phil. Evid., Co wen & Hill’s notes, pp. 604-605, sec. 10. Moreover, defendants introduced evidence tending to show that Harrison was entitled to-credits which, through inadvertence, he had not taken in his ‍​​​‌‌​​​‌‌‌​​​​‌​‌​‌​​‌​​‌‌​‌​​​​‌​​‌‌​‌‌​‌‌​​​‌‍last settlement, and which, if taken in place оf other credits to which he was not entitled, would have brought out the estate as his debtor in the sum of nеarly one thousand dollars.

This was certainly evidence competent to rebut any charge of fraud by showing absence of any motive therefor, as well as no injury resulting from the fraud, even if therе were any. In order to warrant a recovery, or the granting of relief on the ground of fraud, there must be a concurrence of both fraud and injury. State ex rel. v. West, 68 Mo. 229. And equity views with disfavor suits that are brought after the death of the party whose estate is sought to be charged, ‍​​​‌‌​​​‌‌‌​​​​‌​‌​‌​​‌​​‌‌​‌​​​​‌​​‌‌​‌‌​‌‌​​​‌‍where the fraud alleged is known before, and suit might have been brought during the lifetime of the party acquainted *497with the whole business, but without reason or excuse such suit is delayed till after his death.

In the case just cited it was said: “ Under such circumstances thе laches must of itself be held fatal, for it would be to assert a doctrine to the last degree hazardous to say that a complainant, ‍​​​‌‌​​​‌‌‌​​​​‌​‌​‌​​‌​​‌‌​‌​​​​‌​​‌‌​‌‌​‌‌​​​‌‍with full knowledge of all the facts on Tyhich he relies, can lie quietly by until death comes to his assistance and puts the seal of perpetual silencе on the lips of his adversary.”

And the idea, that the death of a party against whom fraud is charged, аnd against whose representatives suit is brought, which might have been brought before, frequently forms a very important constituent element in. determining the question of laches, is no new doctrine-under the sun. Spеaking on this point, in German-American Seminary v. Kiefer, 43 Mich. 105, Cooley, J,., said: “It would be the height of injustice to permit complainant, with full knowledgе of the facts, to delay suit while the persons who were familiar with the facts were one by one passing away, and at last bring suit under circumstances which, at best, must leave the court in doubt whether thе remaining evidence does not disclose a partial, defective, and misleading casе. A court' of equity ought to refuse interference under such circumstances. Campau v. Van Dyke, 15 Mich. 371 ; Russell v. Miller, 26 Mich. 1.” Abundant authorities can be found in support of this position, in addition to those already cited: 1 Ponbl. Eq. 245, note, and cases cited.

Looking, then, to the face of the petition; no showing is made why equity should interfere, and looking to the merits of the cause, and deferring somewhat to the trial court, and considеring all the circumstances of the-case, the safest course to pursue would seem to be to affirm the judgment.

All concur.