Boggess v. Cunningham's Estate
| Decision Date | 12 January 1948 |
| Docket Number | 20905 |
| Citation | 207 S.W.2d 814 |
| Parties | BOGGESS v. CUNNINGHAM'S ESTATE |
| Court | Kansas Court of Appeals |
L. M Crouch, Jr., of Harrisonville, and Francis G. Hale, of Liberty, for appellant.
Rufus Burrus and Harvey Burrus, both of Independence, Ray Schubert of Harrisonville, and Charles V. Garnett, of Kansas City, for respondent.
This case originated in the probate court of Clay County. The parties will be referred to as plaintiff and defendant. Plaintiff filed a claim against the estate of Mary B. Cunningham, deceased, in which he sought compensation according to the contents of said claim 'for personal services advice and consulation concerning investments, disposition of investments, collection of notes, exchange of assets, conferences with debtors of deceased, collection of assets from October, 1931 continuously to June, 1942 at the rate of $ 70.00 a month, $ 9730.00.'
Plaintiff's application for transfer of the case to the circuit court of Clay County for trial on the ground that the probate judge was a material witness was sustained. Thereafter in the circuit court of Clay County, plaintiff made application for a change of venue which was granted and the case was sent to the circuit court of Cass County, where it was tried by agreement of the parties before the judge without a jury. At the conclusion of the evidence the trial judge rendered a final judgment in favor of plaintiff and against the defendant in the sum of $ 4000, together with costs, and ordered that a certified copy of said judgment be filed with the probate court of Clay County for classification and payment. From that judgment the defendant has duly appealed.
The first and chief assignment of error by defendant is that the court erred in overruling defendant's plea in abatement and in finding against defendant on the issue of limitations, statute of non-claim, and lack of jurisdiction of the cause, all as raised in defendant's plea in abatement and answer. There is no answer shown in the transcript. The substance of the plea in abatement, upon which defendant relies in this appeal to show a lack of jurisdiction, is that plaintiff wholly failed to comply with the requirements of the statutes of Missouri with respect to the exhibition and presentation of his demand. More specifically stated under Point I of the brief, defendant contends that the claim was not filed in court or exhibited to the administrator pendente lite at least ten days before one year after grant of letters and publication of notice, and for that reason is barred by the statute of non-claim. Sections 193 to 202, inc., R.S.Mo.1939, Mo.R.S.A.
The chronology of events and what actually transpired in reference to the exhibition and presentation of the claim is shown in the statement of defendant's brief, which statement is agreed to by the plaintiff. From this statement it appears that Mary B. Cunningham died testate in June 1942, and that plaintiff was named executor in her will. Letters testamentary were issued to him by the probate court June 29, 1942, and the first publication of grant of letters was regularly published on July 2, 1942, and thereafter. On June 24, 1943, plaintiff filed his claim with the clerk of the probate court in vacation. On June 28, 1943, the probate court appointed Martin E. Lawson administrator pendente lite of said estate. During the same day the administrator pendente accepted said appointment and endorsed in writing on said claim his waiver of service on him of notice of presentation thereof and in open court acknowledged such waiver. The written waiver of notice endorsed on the claim reads as follows: 'I, Martin E. Lawson, administrator pendente lite of Mary B. Cunningham, deceased, hereby waive service of any notice of the presentation of the within demand of the Probate Court of Clay County, Missouri, for allowance against said estate.'
The question of jurisdiction, therefore, must be determined in view of the foregoing admitted facts and the applicable sections of the administration code. All reference hereafter made to the sections of the statute refer to the Mo.R.S.A., unless otherwise indicated. Sec. 181 provides for the classification of all demands against the estate of any deceased person. Sec. 182 provides that all demands not exhibited in one year shall be forever barred except as to certain persons under disability, and that the one year shall begin to run from the date of the granting of the first letters on the estate where notice shall be published within ten days after letters are granted. Sec. 185 provides that any person may exhibit his demand against an estate 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 or a waiver of such notice in writing by the executor or administrator. Sec. 186 provides that no claimant shall avail himself of the benefit of the preceding section unless he shall exhibit his demand to the administrator in the manner provided by law for allowance within one year after the date of the granting of the first letters on the estate or the first insertion of the publication of notice of the grant of such letters as provided for in Sec. 182, nor unless he shall within said time also present his demand to the probate court. Sec. 194 provides that any person desiring to establish a demand against any estate shall deliver to the executor or administrator a written notice containing a copy of the instrument of writing or account on which it is founded, and stating that he will present the same for allowance at the next regular or adjourned term of court. Sec. 195 provides for the method of service of such notice ten days before the beginning of such regular or adjourned term of court. Sec. 196 provides that 'the executor or administrator may appear in court, or, by writing, waive the service of any such notice.'
The substance of the contention of the defendant on the question of jurisdiction is that the proceeding for the allowance of the demand in question was not legally initiated or commenced in the probate court within the period of the one year statute of limitation, and in this connection defendant states that 'under the statute it is mandatory, in order for the probate court to have jurisdiction to determine the claim, that claimant serve his notice at least ten days before the lapse of the one year period, or that the executor or administrator waive the notice at least ten days before the lapse of the one year period.' It is contended that such is the express holding in the case of State ex rel. Dean v. Daues, 321 Mo. 1126, 14 S.W.2d 990. After a careful examination of the opinion in the case cited, we find that it does not support the contention made. The defendant concedes that the administrator may be writing or in open court waive service of the notice required by Sections 194 and 195, but it is also contended that such waiver, to be effective, must be made at least ten days before the lapse of the one year period. The Dean case did not involve the question of the effectiveness of waiver made less than ten days before the end of the year in a case where both the waiver and the presentation to the court occurred within the year. The essence of the decision in the Dean case is that in the absence of an effective waiver the claimant of a demand against an estate cannot legally initiate a proceeding for the allowance of his claim without the statutory notice served on the executor at least ten days before the claim is barred by the one year statute of limitation. It was also ruled that, upon failure of claimant to make proper exhibition of his demand, an administrator does not waive the statute of limitation by appearing in court and resisting the demand on its merits after the claim has been barred. There is no ruling in that case, or in any other case called to our attention, that an executor or administrator may not appear in court, or by writing, and waive service of the notice required by the statute at any time before the expiration of the limitation period. In fact, the opinion recognizes and in all respects apparently approves the previous ruling of the Supreme Court in the case of Keys v. Keys' Estate, 2178
Mo. 48, 116 S.W. 537, where there was a waiver of exhibition and presentation of a demand two days instead of ten days before the expiration of the one year period.
In the pending case the administrator, both by appearance in court and by writing, waived service of notice of the demand before the claim was barred by the one year statute of limitation. We, therefore, find that plaintiff's claim was legally exhibited, the proceeding properly initiated, and that the probate court had jurisdiction to hear and determine the claim, and we so rule. There was no error on the part of the trial court in its ruling on defendant's plea in abatement.
The remaining points II and III, in defendant's brief are that the court committed reversible error in allowing plaintiff to testify in his own behalf, and that there was no evidence in the case to show the reasonable value of the services rendered. In consideration of these points, we shall keep in mind the nature of the review in which we are now engaged. The case in hand was tried upon the facts without a jury, and upon appeal in such a case Sec. 114(d) Civil Code of Missouri, Laws of 1943, p. 388,...
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