Wernse v. Hall

• Decision Date: 18 January 1882
• Citation: 1882 WL 10178,101 Ill. 423
• Parties: HENRY H. WERNSE et al.v.WILLIAM H. HALL, Admr.
• Court: Illinois Supreme Court

101 Ill. 423

1882 WL 10178 (Ill.)

HENRY H. WERNSE et al.

v.WILLIAM H. HALL, Admr.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 18, 1882.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Fourth District;-- heard in that court on appeal from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Mr. DAVID GILLESPIE, for the plaintiffs in error, insisted that the claim was not barred by the statute of Missouri, and that it was duly presented twice within the statutory period.

That the suit in the circuit court of St. Louis county was sufficient to prevent the bar of the statute, see Tevis v. Tevis, Admr. 23 Mo. 256; Williams v. Anthony, Admr. 47 Id. 299; North v. Walker, 2 Mo. App. Rep. 174; Judy et al. v. Kelly, 11 Ill. 211; Collins v. Ayers, 13 Id. 358.

In the lifetime of Abram McPike, the right of action upon the note in question was transitory in its character. Claimants could have followed him into any other State and brought suit against him, and the fact that both parties to the contract resided in and were citizens of the same State, could not be pleaded in bar or abatement of the suit; nor could the pendency of a suit for the same thing, between the same parties, in another State, be pleaded in bar or abatement of the suit. McJilton v. Love, 13 Ill. 486; Brown v. Joy, 9 Johns. 221; Walsh v. Durkin, 12 Id. 99; see, also, Rosenthal v. Renick et al. 44 Ill. 202. Messrs. WISE & DAVIS, for the defendant in error:

This demand should, by the laws of Missouri, have been presented to the probate court of Ralls county, Missouri, within two years, and not having been presented there in that time, was rejected by the court, and this, by the law of Missouri, is an extinguishment of the debt. Cones v. Ward's Admr. 47 Mo. 289; Pearce v. Calhoun, 59 Id. 274.

That which is a discharge of a contract in the government where made, is a discharge everywhere. Powers v. Lynch, 3 Mass. 77; Rev. Stat. Ill. p. 644, sec. 20; Vermont State Bank v. Porter, 5 Day, 316; Conpamp v. Bund, 4 Dall. 419; Hull v. Blake, 13 Mass. 153.

The rule is, where it is the intention of the statute to convert a possession of any given length of time, or a neglect to institute proceedings according to its provisions, into a positive and unavoidable bar, the statute is a bar in the courts of every government. Blackford v. Wade, 17 Ves. 88; Shelley v. Gay, 11 Wheat. 361; Brent v. Chapman, 5 Cranch, 358; McAllister v. Smith, 17 Ill. 328; Evans v. Anderson, 78 Id. 558.

When ancillary or auxiliary administration has been granted, no creditor outside of the ancillary administration can present his claim before the commission of ancillary administration or the court granting the same. 3 Redfield on Wills, par. 15, chap. 1; Richards v. Dutch, 8 Mass. 506; Dawes v. Boyleston, 9 Id. 337; Dawes v. Head, 3 Pick. 128; Hunt v. Fay, 7 Verm. 183; Churchill v. Bryden, 17 Id. 319.

But even if allowed by our law in some cases, as is intimated in Bowles' Heirs v. Rowen, 3 Gilm. 421, and in Rosenthal, Admr. v. Renick, 44 Ill. 207, yet it would never be permitted where administration has been granted on the estate at the domicile of the deceased, and when the claim has been presented there for allowance, as it would avail nothing to non-resident creditors, as the assets realized would be sent to the principal administrator to distribute. A voluntary payment by the debtor to the principal administrator, where there is no conflicting grant of domestic letters, will discharge the debtor. Doolittle v. Lewis, 7 Johns. Ch. 49; Parsons v. Lyman, 20 N. Y. 103; Treecotheck v. Austin, 4 Mason, 16; Wilkins v. Ellett, 9 Wall. 740.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

This is the case of a claim filed by plaintiffs in error against the estate of Abram McPike, deceased, in the county court of Madison county, Illinois.

A promissory note, dated St. Louis, December 23, 1872, was made and signed by Leiper & Co. as makers, for the sum of $3000, payable sixty days after date, at the Traders' Bank of St. Louis, to the order of A. McPike. This note, before maturity, was indorsed in blank by A. McPike, and sold, and became the property of the bank. It appears from the record that A. McPike was a resident of Ralls county, Missouri, and that he died intestate early in January, 1873, and before the maturity of the note, and that Henry C. McPike, a resident of Missouri, was appointed, by the county court of Ralls county, administrator of the estate of A. McPike, deceased, and received letters of administration on the 28th of January, 1873. The note was not paid at maturity, and the same was duly protested for non-payment, on February 24, 1873, and notice thereof mailed to the administrator.

This claim against the estate of Abram McPike rests upon his supposed liability as indorser of that note. His estate in Missouri is shown to have been entirely solvent. The defence interposed is a statute of Missouri, which provides that all demands against estates of deceased persons, not legally exhibited within two years after the granting of the first letters of administration, “shall be forever barred.” It is insisted that this claim is barred by that statute.

The statute of Missouri provides several modes in which a claim may be thus ““legally exhibited,” and in addition to other modes, not claimed to apply in this case, the following are mentioned in the statute: “All actions commenced against the executor or administrator * * * shall be considered demands legally exhibited against such estate, from the time of serving of original process on such executor or administrator.” And again: “Any person may exhibit his demand * * * by serving upon the executor or administrator a notice in writing, stating the amount and nature of his claim, with a copy of the instrument of writing or account upon which the claim is founded, and such claim shall be considered legally exhibited from the time of serving such notice;” but it is also provided that “no claimant shall avail himself” of this latter mode of exhibiting his demand “unless he shall present his demands to the court (the proper county court), in the manner provided by law, for allowance, within three years after...