Hicks v. Jamison

• Decision Date: 01 March 1881
• Citation: 10 Mo.App. 35
• Parties: NOÉMI L. HICKS, EXECUTRIX OF L. A. LABEAUME, Respondent, v. WILLIAM C. JAMISON, ADMINISTRATOR OF H. T. BLOW, Appellant.
• Court: Missouri Court of Appeals

10 Mo.App. 35

NOÉMI L. HICKS, EXECUTRIX OF L. A. LABEAUME, Respondent,

v.WILLIAM C. JAMISON, ADMINISTRATOR OF H. T. BLOW, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 1, 1881.

1. Under the statute of 1865, a demand against an estate could not be exhibited after the lapse of two years; but where the claim was exhibited within two years, it might be presented to the court for allowance during the third year.

2. Where a statute can be construed consistently with the literal meaning of the words used, the courts will not give it another construction, on the theory of a legislative mistake.

3. The demand must be exhibited in substantial compliance with the statute, by giving the administrator unmistakable notice that the claim is exhibited with a view to making it a charge against the estate.

The provision of the statute as to the exhibition of a demand is enacted from motives of public policy, and cannot be waived by the administrator.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Reversed, and judgment.CLINE, JAMISON & DAY, for the appellant, cited: Spaulding v. Suss, 4 Mo. App. 542; Greenbaum v. Elliott, 60 Mo. 25.

GLOVER & SHEPLEY, for the respondent, cited: North v. Walker, 66 Mo. 453; Pheiffer v. Suss, 5 Mo. App. 590; Williamson v. Anthony, 47 Mo. 299.

BAKEWELL, J., delivered the opinion of the court.

It appears from the evidence in this case that Blow died in August, 1875, and letters of administration, dated October 13, 1875, were granted to Jamison, who duly gave the notice required by the statute. Blow, at the time of his death, owed Labeaume an amount of money represented by a principal note of $20,000, payable ten years after date, and semi-annual interest-notes, at the rate of eight per cent per annum. These notes were all dated November 19, 1868. Labeaume lived in France. Booth was the agent of Labeaume, and attended to his business in St. Louis. All the interest-notes maturing before Blow's death had been duly paid. Shortly after the grant of letters, Jamison received a letter from Booth stating that a note of Blow's would be due to Labeaume on November 19th. Jamison then went to Booth to find out what the note was, and Booth showed him the notes and deed of trust made by Blow, and explained to him about the transaction. There were at that time seven unpaid interest-notes. Jamison paid the November interest-note, and the other interest-notes up to and including that due in November, 1877. After that, he paid no other of the notes. In January, 1876, Jamison proposed to Booth that he would pay the whole debt, to stop interest. Booth said he would write to Labeaume about it; and he did so, and received an answer from Labeaume declining to receive the money before the maturity of the note. Jamison says that nothing whatever was said about proving up the claim or asserting it against the estate, at any time within two years from the date of his letters. On December 15, 1877, and after Jamison had published notice of final settlement, the present action was begun, by presenting the demand in the Probate Court. The claim embraces the principal note for $20,000, and the two interest-notes of $800 each, at one hundred and fourteen and one hundred and twenty months respectively. Jamison waived notice. The Probate Court refused to allow the claim. On trial anew in the Circuit Court, there was judgment in favor of the executrix of Labeaume for the amount claimed.

There is no controversy as to the facts. Under the law in force at the time (Wag. Stats. 102, sects. 5, 6), the demand might be exhibited by notice to the administrator within two years, and where the demand had been thus exhibited, it might be proved within three years from the granting of letters. The law is now otherwise. In the revision of 1879, the sixth section of chapter 123 of the General Statutes of 1865 was amended by changing the word “three” into “two.” It is contended by counsel for appellant that this verbal change really made no change in the law; that before the change was made, the word “three” in this section ought to have been read “two;” that the effect of the changes in the act made in the revision of 1865 was to provide clearly, according to the intention of the Legislature, sufficiently manifested in the act, that demands must be proved within two years; and that the word “three” was left in sect. 6 by a manifest oversight on the part of the Legislature.

It is, of course, possible that the Legislature made a mistake, and that it had an intention, as appellant's counsel contends, in accordance with which ““three” should have been changed into “two,” as was subsequently done in the revision of 1879. But it does not appear that there is any repugnancy. The law is capable of a consistent construction without reading “two” for “three” in section 6; and if there was a mistake, the courts cannot correct it. Fair-child v. Hall Assn., 71 Mo. 526. “It is for the Legislature to correct errors in the statutes, or repeal impolitic acts. Where the provisions of a law are inconsistent and contradictory to each other, or a literal construction of a single section would conflict with every other preceding or following it, and with the entire scope and manifest intent of the act, it is certainly the duty of the courts, if it be possible, to harmonize the various provisions with each other; and to effect this, it may be necessary to depart from a literal construction of one or more sections,” to quote the language of Judge Napton in The State to use v. Heman, 70 Mo. 451; but no such case is presented here. The word “three” may be retained in section 6 without absolutely contradicting other provisions of the law.

In 1855 the law was, that the notice of the administrator should state that if claims be not exhibited to the administrator for allowance within three years from the date of letters, they shall be barred; that all demands exhibited after two years, and within three years after the grant of letters, shall be placed in the seventh class; that all demands not exhibited within three years shall be barred; that any person may exhibit his demand by notice to the administrator, and that no claimant shall derive any benefit from such exhibition of the claim unless he present his demand to the Probate Court within three years from the grant of letters. Rev. Stats. 1855, p. 151, sects. 1-6; p. 131, sect. 19.

In the revision of 1865, the law was...