State ex rel. Bates v. Shaw , 163 Mo. 191 ( 1901 )

GANTT, J.

A bill in equity was filed in this case to set aside a final settlement made by defendant as the executrix of Samuel S. Shaw, deceased, late of Lafayette county in this State.

The charge is that on the first day of June, 1892, the said executrix had in her hands, as such, $17,950 belonging to the estate of her deceased husband, which was subject to taxation, and the same was duly assessed for the taxes of 1893, and said assessment became an obligation which it was the duty of said executrix to pay. That afterward, on November 16, 1892, she made her final settlement and was discharged without paying the taxes for the year 1893, although she well knew said estate was liable for said taxes.

The defendant denied all concealment and fraud in the making or procuring her final settlement and discharge; averred that it was made after full notice thereof as required by law, and denied the said alleged tax was due or owing when she made her settlement.

On the hearing the circuit court dismissed the bill and rendered final judgment for defendant, and the collector appeals.

On the trial the relator offered in evidence an assessment list purporting to have been signed and sworn to by Nancy A. Shaw. This list was offered in evidence and relator attempted to show by the deputy assessor who assessed the township in which Odessa is situated, that Mrs. Shaw signed the list, but he admitted he did not know her signature and would not testify to it.

On the contrary, Mrs. Shaw testified it was not her signature and she did not give the list. It was shown that upon due notice Mrs. Shaw made her final settlement of her husband’s estate in 1892, at the November term of the probate court. That at the time the taxes now sued for had not been levied and were not levied until the May term, 1893, of the county court thereafter, and were not due, so she could'have paid them, until September 1, 1893. Not only was there no evidence whatever of any fraudulent practice in the procuring of her final settlement, without which, of course, said settlement became and was a final judgment and bar, but in the light of this evidence there could have been no such fraud.

As no tax had been levied, nor the amount of it ascertained, or at that time even ascertainable, and when subsequently levied could not have been paid before September 1, 1893, it is utterly preposterous to charge the executrix with fraud in making her settlement as the law required, because she did not keep the estate open solely for the purpose of paying taxes on it.

Carried to its logical conclusion the contention of the collector would have precluded the final settlement of the estate at any time, for if she should have kept the estate open until September, 1893, another assessment would have been due on the intervening first day of June, 1893, and so it must have continued ad infinitum.

The law is settled in this State that the fraud which will impeach and justify setting aside a final judgment, is fraud upon the court in the procuring of the judgment, and there was not a scintilla of evidence tending to prove any such fraud. [Hamilton v. McLean, 139 Mo. 678; Bates v. Hamilton, 144 Mo. 1; Fears v. Riley, 148 Mo. 59; Lewis v. Williams, 54 Mo. 200; Murphy v. DeFrance, 105 Mo. 53; Oxley Stave Co. v. Butler Co., 121 Mo. 614.]

The judgment of the circuit court is affirmed.

Sherwood, P. J., and Burgess, J. concur.