Garr v. Harding , 45 Mo. App. 618 ( 1891 )

Gill, J.

— This case was here once before, and will be found reported in 37 Mo. App. 24, to which we now refer for a full understanding of the litigation between these parties. Harding was the administrator of an estate, and Mrs. Garr and others the heirs. At the final settlement the said heirs objected to the allowance of a credit there claimed by Harding (in amount the sum of $705) on the ground that the sum was so paid by the administrator on a fraudulent claim against the estate, which had been allowed by, and through, the fraudulent practices and collusion between the alleged creditor and said administrator. On appeal to the circuit court the heirs succeeded, and the claim was disallowed, and the cause was then appealed to this court. We practically sustained the action of the circuit court, but owing to an informality in the judgment of that court we remanded the cause with directions to enter up the proper judgment disallowing the credit of $705, and then certify such judgment to the probate court. This mandate has been obeyed by the circuit court, and in its judgment said court taxed the costs against Harding personally. Subsequently, Harding moved the circuit court to retax the costs, asking that they be taxed against the estate, of which he was administrator, and not against him personally. This motion was overruled, and Harding has appealed.

I. In so taxing the costs against Harding, individually, and thus refusing to charge the same on the estate, whose interest he sought to abuse, as was found by the trial court, we are of the opinion that no error was committed. In this effort to charge a fraudulent claim against the McCalment estate, he ceased to represent the same, and occupied a hostile attitude thereto. The heirs, Gfarr and others, stood for the interests of the estate, while Harding’s position was antagonistic. He failed, and the estate was, therefore, the “prevailing party” and entitled to collect, not to pay, costs. The cases cited by counsel for Harding have no bearing here. There is no doubt that in cases prosecuted by, or against, the administrator of an estate in the administration thereof the rule generally prevails, that the costs must be adjudged against the estate, and not against the individual estate of the administrator. But this is not litigation of this kind. Here, the administrator occupied the place of actor against the estate, seeking, as held, the allowance of a fraudulent demand, and that, too, in his own behalf. As well said by respondent’s counsel the rule contended for would give a bonus for dishonesty, and work a dangerous encouragement to false and fraudulent claims by administrators against their estates — if they could litigate such claims through the courts at the expense of the estate.

Judgment affirmed.

All concur.