Opinion
No. 21388.
October 2, 1950.
APPEAL FROM THE JACKSON CIRCUIT COURT, JACKSON COUNTY, JOHN R. JAMES, J.
F. D. Glore, Kansas City, for appellant.
T. James Conway, Kansas City, for respondent.
This is a suit in equity to set aside an order of allowance made by the Probate Court of Jackson County, in favor of defendant against the estate of John J. Richardson, deceased. The court granted the relief sought and defendant appealed.
Plaintiff is the daughter and sole heir of deceased. Her father and mother were divorced when she was a small girl and she had not seen or heard from her father for many years prior to his death and did not learn of it until September 15, 1947. He died February 9, 1946, and administration was taken out on his estate on February 12, 1946. On July 1, 1946, defendant filed her claim against the estate of deceased, Richardson, alleging that said deceased had borrowed from her the sum of $1000, as evidenced by a promissory note signed by him and dated October 2, 1943. Attached to her demand was the usual affidavit executed by defendant that she had given credit to deceased's estate for all payments to which it was entitled, and that the balance claimed was justly due. On January 2, 1947, the Probate Court allowed said claim against the estate of deceased.
On January 25, 1949, plaintiff brought the present suit claiming the signature on the alleged note of deceased (Exhibit 11) was a forgery; that deceased was not indebted to defendant and that a fraud had been practised upon the Probate Court by defendant. Plaintiff's proof went to establish that the alleged signature of deceased on said note had been traced from the genuine signature of deceased appearing on the back of a check (Exhibit 51) dated October 27, 1944, over a year after the note is claimed to have been executed by deceased. This check was payable to "cash" in the sum of $20.00, was signed by defendant, Stella Schofield, as drawer, and endorsed by deceased, "J. J. Richardson." After it was paid on October 31, 1944, it was returned to and remained in defendant's sole possession.
The decree of the chancellor recites, among other things, that the signature of deceased on the note in question was a forgery and that the Probate Court was misled by the fraudulent affidavit filed by defendant, and that its order allowing her claim should be set aside. From this adverse ruling defendant, as stated above, appeals.
Defendant's first contention is that plaintiff's petition does not state a cause of action. She divides this into three subheads, "a", "b" and "c". Under "a" she says that "scienter, one of the essential elements of fraud was not pleaded." The petition herein alleged that "plaintiff further states that defendant falsely and fraudulently, and with intent to deceive and defraud the Probate Court and the estate of the deceased, did represent," etc.
In Morrow v. Franklin, 289 Mo. 549, 233 S.W. 224, 228, our Supreme Court reviews the Missouri cases and says our courts have taken the same view as expressed in 20 Cyc. 99, that: "It is not always necessary, however, that knowledge of the falsity of the representations be alleged in so many words. Thus allegations that the representations were fraudulently or deceitfully made sufficiently aver a scienter, as the word `fraudulently' or `deceitfully' excludes the idea of mistake and imports that the representations were made with knowledge of their falsity."
From this it is clear that there is no merit in defendant's contention.
Under "b" defendant claims: "The petition did not plead diligence." On the contrary, the petition alleges that plaintiff has used diligence in her efforts to determine whether or not said allowance was properly made to defendant and that she was not guilty of negligence or laches in failing to appeal from the judgment of the Probate Court allowing said claim, for the reason she was not notified of the death of her father or of the fact that there was an administration pending on his estate until long after said allowance had been made. In any event, the limitation imposed upon her right to sue in equity is that fixed by Sec. 1014, Mo.R.S.A. Her present suit was filed well within the period permitted by this section. Fitzpatrick v. Stevens, 114 Mo.App. 497, 89 S.W. 897.
Under "c" defendant says the petition does not charge fraud in the procurement of the judgment in the Probate Court. The petition herein alleged that defendant filed her claim against the estate of John J. Richardson, deceased, alleging that deceased had borrowed the sum of $1000 from her as evidenced by the promissory note, and that to support her claim defendant signed an affidavit stating that said estate was indebted to her in the above amount; that this affidavit was false. The decision of this court, Fitzpatrick v. Stevens, supra, determines this contention adversely to defendant. In that case the court refers to the statute, now Sec. 192, Mo.R.S.A., which requires a claimant to file with his claim an affidavit stating that he has given credit to the estate for all payments and offsets to which it is entitled, and that the balance claimed is justly due. The court then uses this language, 114 Mo.App. loc. cit. 502, 89 S.W. at page 899:
"It is well settled that such verification is a condition precedent to the exercise of jurisdiction over the demand. Rev.St. 1899, § 195 [Mo.R.S.A. § 192]; Williams v. Gerber, 75 Mo.App. [18], loc. cit. 30; Perry v. Alford, 5 Mo., loc. cit. 503; Merchants' Bank v. Ward's Adm'r, 45 Mo., loc. cit. 311; Dorn v. Parsons, 56 Mo. [601], loc. cit. 602; Million v. Ohnsorg, 10 Mo.App. [432], loc. cit. 437; Bick v. Tanzey, 181 Mo. [515], loc. cit. 524; Burnett v. McCluey, 78 Mo. [676], loc. cit. 689; Hargadine v. Van Horn, 72 Mo. 370.
"It is a step preliminary to the conferring of jurisdiction. That the instrument which set the court in motion involved none but intrinsic facts made it none the less a fraudulent device, without which the court could not have acted. Through it the proceedings reached the hand of the court tainted with fraud. To thrust a thing so corrupt in its inception into court was a fraud upon the administration of justice, and no judicial act innocently performed for its effectuation could serve to purge it of corruption. The case, therefore, possesses all of the elements for equitable action."
Under her point II defendant contends: "Plaintiff did not prove a cause of action in fraud." In her point III she says: "The note was not fictitious." These can be considered together.
This being an equity case we are not bound by the finding of the chancellor. However, his opportunity to pass upon the credibility of the witnesses was superior to ours and we would not be justified in upsetting his finding, made on conflicting evidence, in the absence of a showing that it was against the weight of the evidence. Costello v. Moore, Mo.Sup., 211 S.W.2d 921.
At the conclusion of the evidence, the chancellor stated: "I am thoroughly convinced that this signature on this instrument here, which is the subject of this litigation, this Exhibit 11, the alleged note or contract, is a tracing from the endorsement on that check, Exhibit No. 51."
Plaintiff's expert witness testified that the questioned note was made on what "we call copy paper — a very thin paper." And, in referring to the purported signature of deceased upon it, said: "I am positive that it was traced, and furthermore, I think it is the most stupid example of traced forgery I ever saw in my life."
Defendant's own expert witness, on cross-examination, was shown Exhibit 11, the alleged note, and Exhibit 51, the cancelled check bearing deceased's true signature. He was then asked: "If you put this signature right on top of the other one does it show exactly the same? A. It shows exactly the same, traced over thin paper. Q. You would say that this signature was traced over this thin paper? A. Yes."
One examining this record must come to the same conclusion as that arrived at by the learned trial court.
Under defendant's point IV she states: "Fraud will not be presumed." No one can dispute this rule, but it has no place here. Plaintiff established her case by clear and convincing evidence.
Finally, defendant contends that plaintiff had a remedy at law; that she, or the administrator, could have taken an appeal.
In the case of Walther v. Null, 233 Mo. 104, 134 S.W. 993, 996, the time for appeal from the action of the Probate Court had run, and it was claimed that defendant had an adequate remedy at law by appeal, which he had abandoned. However, the Supreme Court said: "But, whether the time had run or not, defendant had still left another arrow in his quiver, a suit in equity to annual the judgment." To the same effect is the decision by this court in Hanne v. Watters, 226 Mo.App. 810, 47 S.W.2d 182.
The judgment should be affirmed. It is so ordered.
DEW, P. J., concurs.
CAVE, J., not sitting.
VANDEVENTER, J. (sitting by order of Supreme Court), concurs.