Smith v. Smith

The appellee brought a suit against the executrix of the will of his deceased guardian, alleging that the guardian in his lifetime had appropriated and converted to his own use the money of his ward; that the guardiam had presented to the court of his appointment accounts, including his final account, wherein he concealed his misappropriation of the ward’s money, and theréby fraudulently procured the court to settle and allow his said accounts; and that thereafter, when the ward attained his majority, the guardian settled with him on the basis of such final' account. The appellee alleged matter by way of excuse for his delay in bringing the suit. The prayer of his bill was that the decree of settlement be set aside, and that he recover from the appellant, as such executrix, the sum of $24,700, which was alleged to be the amount due the appellee upon a proper accounting. The answer denied conversion of the money and concealment and misrepresentation on the part of the guardian, and set up the defenses of res judicata, limitations, and laches. The court below, upon uncontradicted evidence, found facts which were sufficient to establish the charge that the guardian had appropriated…

(dissenting). John M. Smith, deceased, of whose estate the appellant is executrix, was, during his lifetime, the guardian of his brother’s three children, the appellee (William Smith) and the latter’s two sisters. William A. Smith was a brother of John M. Smith. Those two brothers were engaged in the sheep business in Montana, first as partners, but afterwards caused a corporation to be organized under the name of Smith Bros. Sheep Company, to which they transferred the property, each taking stock in the corporation therefor. Afterwards William A. Smith died, and in the course of time John M. Smith acquired the stock his brother had formerly owned, by purchase from the executor of the estate. In a suit subsequently brought in the court below by one of, the daughters of William A. Smith that sale was adjudged by this court fraudulent and was annulled as to her upon certain terms. Those terms and all of the numerous facts and circumstances of the case will be found fully stated in the cases entitled Moore v. Smith et al., 182 Fed. 540 , 105 C. C. A. 78 , and Smith v. Moore, 199 Red. 689, 118 C. C. A. 127 . It is unnecessary to repeat them here. The brother of that complainant…