Chitty v. Gillett
| Decision Date | 27 April 1915 |
| Docket Number | 4307. |
| Citation | 148 P. 1048,46 Okla. 724,1915 OK 232 |
| Parties | CHITTY v. GILLETT ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 1, 1915.
Syllabus by the Court.
Where a claim against the estate of a deceased person does not accrue or become enforceable until after the administration of the estate has been closed, and all the property has been distributed and passed into the hands of the heirs, its collection may be enforced by a direct action, in the district court, against the heirs of the deceased, and they may be held liable in such an action to the extent of the assets received by them from the estate. And a demurrer to the jurisdiction of the district court in such an action should be overruled.
Where a suit is brought upon a judgment obtained in a court of record against the estate of a deceased person, it will be presumed that such judgment was legally obtained and a demurrer to the petition on the ground that it fails to show that the claim upon which the judgment was based was filed with the administrator before the suit was commenced and in due time should be overruled. These are matters that might be properly urged by demurrer in the original action, but cannot be raised by demurrer in a suit upon the judgment. In such an action the petition declares upon the judgment, and not upon the claim upon which the judgment was obtained.
In a suit on a judgment a demurrer to the petition, on the ground that it does not allege that the judgment is final and not appealed from, is not well taken, where the petition does allege facts that show the judgment to be valid, subsisting and in full force.
Commissioners' Opinion, Division No. 2. Error from District Court, McClain County; R. McMillan, Judge.
Action by M. A. Chitty against Mary P. Gillett and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded.
Thompson & Patterson, of Pauls Valley, for plaintiff in error.
J. W Hocker, of Los Angeles, Cal., for defendants in error.
This is a suit by M. A. Chitty, the plaintiff in error, against the defendants in error, Mary P. Gillett et al., heirs of J. W Gillett, deceased, to recover on a judgment of $3,075, with interest and costs, which was obtained by plaintiff in error on the 29th day of October, 1909, against the American Trust Company, Mary P. Gillett, administratrix of the estate of J W. Gillett, deceased, F. P. Kibbey and R. C. Hess.
The petition alleges that on the 29th day of October, 1909, the plaintiff in error obtained judgment for $3,075 in the district court of Garvin county, Okl., against the American Trust Company, Mary P. Gillett, administratrix of the estate of J. W. Gillett, deceased, F. P. Kibbey, and R. C. Hess, and attaches a copy of said judgment to his petition as part thereof. It further alleges that at the time of the institution of the suit in which said judgment was obtained J. W. Gillett was dead, and the defendant in error, Mary P. Gillett, was the qualified and acting administratrix of his estate, and that the cause of action was based upon a claim against the estate of J. W. Gillett, deceased, and Mary P. Gillett, administratrix, was a party to said action; that while said suit was pending and before judgment was obtained, Mary P. Gillett, administratrix of the estate of J. W. Gillett, deceased, filed her final account as such administratrix, had same allowed, and the estate partitioned, and the administration closed. That under the partition and settlement of the estate, the pending suit was not taken into consideration and no provision was made for the settlement of the judgment which was subsequently obtained, but the entire estate of J. W. Gillett, deceased, was surrendered and delivered by Mary P. Gillett, as administratrix, to herself and the other defendants in error as heirs of J. W. Gillett, deceased, for distribution.
That defendant in error Mary P. Gillett, received as widow of deceased the sum of $12,794.72. Defendant in error Josephine Gillett as an heir $7,765; Mary Gillett $7,765; and Margaret Gillett $7,765.
Plaintiff in error further alleges that the American Trust Company, since the rendition of said judgment, has become insolvent and has no assets which can be reached to satisfy said judgment. That F. P. Kibbey is a nonresident, and has no property in the state subject to execution. That R. C. Hess is insolvent, and has no property subject to execution out of which said judgment can be satisfied. That no part of said judgment has been paid and that there is now due thereon the sum of $3,075 with interest from February 15, 1907, at the rate of 6 per cent. per annum.
That by reason of the premises plaintiff in error is unable to collect said debt against the estate of J. W. Gillett, deceased. That the defendants became liable for the full amount of said judgment, which they refuse to pay and prays for judgment against each of the defendants in error, jointly and severally, for the amount of his judgment.
The defendants in error demurred to the petition upon three specific grounds. On a hearing the demurrer was sustained. The plaintiff refused to amend, and judgment was rendered for the defendants, and from this judgment the plaintiff in error appeals to this court.
The judgment does not recite upon what particular ground or grounds the demurrer was sustained, and as defendants in error have specified three grounds upon which they attack the petition of the plaintiff in error, we will consider each of these in the order in which they are set out in the demurrer.
First. The first ground is:
"That this court has no jurisdiction to open and set aside a judgment of the county court in deciding a distribution of the estate, and no sufficient reason is assigned to justify a disturbance of said judgment."
As we understand it the petition does not seek to set aside the judgment of distribution, but seeks to recover from the heirs of the deceased the amount of the judgment which was determined by a court of competent jurisdiction to be due plaintiff from the estate of said deceased, J. W. Gillett.
The plaintiff pleads that each of the heirs, as beneficiaries, received a sum from the estate greatly in excess of the amount found to be due him by the estate. Does the fact that this estate was closed pending this litigation and that the heirs took over the entire property of the estate, both real and personal, place it beyond the jurisdiction of the district court to grant the relief prayed for by the judgment creditor, whose claim did not ripen into an enforceable liability before the estate was closed? This is a question which has not often been adjudicated, and where it has been adjudicated there is some conflict in the decisions, but the weight of authority is to the effect that where a claim has not accrued or become enforceable until after the administration of the estate is closed, a recovery may be had in an action against the heirs in the district court, to the extent of the assets received by them from the estate. Some of these decisions are based upon special statutes to that effect, while the reason for this rule in others is based upon statutes similar to our own.
In Williams et al. v. Ewing & Fanning, 31 Ark. 229, the court announces this doctrine and bases its reason upon section 68 Gantt's Digest, which reads as follows:
"Lands shall be assets in the hands of the executor or administrator, and shall be deemed in their possession and subject to their control for the payment of debts."
The court holding that by virtue of this statute when such lands descend to the heir, the equitable right to subject them to the payment of the debts of the deceased follows. In that case John Ewing and Talbot Fanning and John Waters, deceased, had in 1858, signed the note of Alexander Fall as sureties. In 1867 John Waters died in Arkansas, leaving a will which was duly probated. In 1872 judgment was obtained against Ewing and Fanning for $5,991.71, the balance due on said note after deducting the payments made thereon by Fall, the principal debtor, who had in the meantime died insolvent. The estate of John Waters, deceased, had been closed, and $40,000 or $50,000 worth of land and $5,000 in money had passed into the hands of one John Waters as heir at law of said estate. John Waters, deceased, had paid no part of this debt, but plaintiffs as sureties had been compelled to pay the whole amount, and they brought suit against John Waters, the heir at law of John Waters, deceased, for $1,997.14, one-third of the amount paid by them as sureties.
The court, in passing upon their right to recover against this heir of their cosurety, says:
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