Floyd v. Newton , 97 Ark. 459 ( 1911 )

Kirby, J.,

(after stating the facts). The complaint to impeach the settlement charged fraud, accident or mistake in such vague, indefinite and general terms, without specifying in what it consisted, that no cause of action was stated. Mock v. Pleasants, 34 Ark. 63; Riley v. Norman, 39 Ark. 158; McLeod v. Griffis, 51 Ark. I.

Having been answered, however, and proofs introduced, we will examine the contention made -here to ascertain whether there was such proof as would sustain spcific charges amounting to a cause of action.

Appellant insists that the settlement is impeached because •the administratrix failed to account for all the assets of the estate and deducted two large amounts, $576.42 and $973-77» the sum of $1,520.49 in all, from their sales as shown in the appraisement, and that she also failed to account for a collection of $150 from Cliff Dearing. The appraisement on its face shows that the appraisers valued the assets, deducting said amounts due t’hereon, as follows:

Goods, wares and merchandise...........$1,524.30

Dess amount due on same................ 546.72 $ 977-66

286 bales of cotton at $22.50............. 6,475.00

Dess amount due on same..........1..... 973-77 5>5OI-°3

It was filed and approved by the court, and the administratrix charged herself in the first settlement with the value of the stock of goods and the cotton after deducting the amounts due thereon as in the appraisement.

T. W. Williams, one of the appraisers, testified that these deductions were made by the appraisers in the appraisement as shown after an examination of the books of the deceased and a statement from the appraiser’s brother, Jim Williams, now dead, who was manager for deceased and kept the .books, disclosed that the said amounts were due and owing on the stock of merchandise and the cotton when the appraisement was made. The administratrix testified that she did not know why these deductions were made, that she couldn’t explain them, that she didn’t know of these conditions, that she had charged herself with all the assets coming to her hands, that Cliff Dearing paid what he owed in cotton, although she couldn’t remember just where it was charged in the settlement, and her settlement shows 88 bales of cotton charged as having been received after the appraisement was made. She was not able to explain for what account certain amounts were paid for which she took credit and filed vouchers, but claimed they were just and correct and properly chargeable against the estate, as they were charged in her settlements with the vouchers showing the payments duly exhibited with the settlement. Closing her testimony, she said:

“My attorney has the vouchers, and he is not here, and I have no books to refer to, and it has been several years since these things occurred. There were a great many transactions that I did not understand anything about. I depended upon the ■manager of the business. Jim Williams was manager until his death, then Garland Williams took charge, and when Garland got so he couldn’t look after it I took Mr. McMath. In changing hands there was some loss each timed’

Those amounts were-shown to be indebtedness of the estate deducted in the appraisement from its value which could have been and doubtless were paid to the various creditors to whom they were owing upon the sale of the property, and this accounts • for the fact -that none of the claims composing it were probated against -the estate, and in any event there was no allegation nor any proof whatever that said amounts so deducted or any' part of either of them was ever allowed or paid by the adminis-' tratrix out of the assets with which she was charged. The administratrix should of course have been charged in the probate court with the entire estate, and the debts due upon the goods and cotton, and all others regularly probated, allowed and paid in due course of administration, instead of the deductions being made and these debts paid as they were.

The settlements showing all these matters, however, were made and duly approved and confirmed by the probate court, and are judgments of that court which could have been appealed from if incorrect. McLeod v. Griffis, 51 Ark. I; Jones v. Graham, 36 Ark. 383; Dyer v. Jacoway, 42 Ark. 186.

“The complaint contains no averment that the allowances made to the administratrix upon her settlement were obtained by any misrepresentation or deception practiced upon the court. The facts, so far as anything to the contrary appears, were all before the court and understood by it, and its decisions fairly made.” Mock v. Pleasants, 34 Ark. 72.

In. McLeod v. Griffis, supra, at pages 10, 11, the court said:

“It is plain, however, that whatever matter the probate court has passed upon cannot be assigned in the chancery court as fraudulent or as the result of accident or mistake unless upon the statement of some fact or circumstance not considered by the cpurt. The identical issues decided by the probate court can not be retried and reversed by the chancery court in this proceeding, and where this is manifest the court should refuse to take jurisdiction. The difficulty is almost peculiar to judg■merits confirming administrator’s items of debit and credit, and the- items have no necessary connection with each other, but an examination and confirmation of the setlement is the judgment of the probate -court as to each separate item as much as it is to the settlement as a whole. We are not prepared to say that the chancery court would not have jurisdiction to set aside as a whole the settlement accounts of an administrator, but it would be only upon an impeachment of the settlements as a whole. It must be upon fraud or accident going to or affecting the entire action of the probate court and in which •the -court has been the victim of -the fraud or the accident.” See also Mock v. Pleasants, supra; Scott v. Penn, 68 Ark. 492; Jones v. Graham, 36 Ark. 391.

The proof failed to show any fraud, accident -or mistake that would sustain specific charges amounting to a -cause of action as held by the chancellor, and the decree is affirmed.