Clarke v. Organ, 46731
| Decision Date | 09 November 1959 |
| Docket Number | No. 46731,46731 |
| Citation | 329 S.W.2d 670 |
| Parties | Blanche Mae CLARKE, Guardian of the Estate of Larry Ray Coulter, Janis Kay Coulter and Susan Mae Coulter, Minors, Appellant, v. Hazel Delores ORGAN, Administratrix of the Estate of William Dee Organ, Deceased, Respondent. |
| Court | Missouri Supreme Court |
Robert G. Oberlander, Kuraner, Freeman, Kuraner & Oberlander, and Walter A. Raymond, Kansas City, for appellant.
Deacy & Deacy, Thos. E. Deacy, Edward W. Mullen, Kansas City, for respondent.
James W. Benjamin, Rogers, Field, Gentry & Jackson, Kansas City, amici curiae.
Harry P. Thomson, Jr., and John R. Caslavka, Kansas City, amici curiae, Shughart & Thomson, Kansas City, of counsel.
This is a suit for the wrongful deaths of both parents of the plaintiff's minor wards; those deaths occurred as the result of the collision of the parents' motorcycle with a car driven by William Dee Organ, whose administratrix is the defendant here. All three persons died on Sept. 1, 1956, the date of the collision. Plaintiff is the guardian of the three minor children. Defendant was appointed administratrix of Organ's estate on Oct. 8, 1956, and the first publication of the Notice of Letters was made on Oct. 11, 1956. This suit was instituted on Nov. 10, 1956, seeking damages of $50,000 for the death of both parents, and asserting that the deaths were caused by the negligence of decedent Organ. Service of process was had on the defendant on Nov. 23, 1956. On Jan. 5, 1957, defendant filed answer, admitting the appointments of the Guardian and the Administratrix, denying all substantive allegations, and pleading negligence on the part of the minors' parents. On Oct. 16, 1957, defendant filed a motion to dismiss the petition for failure to comply with the provisions of the Probate Code (sections 473.360, 473.363 and 473.367, Mo.Cum.Supp. 1957, V.A.M.S.) by filing copies of the summons and return in the probate court within nine months after the first publication of the Notice of Letters. Copies of the petition, summons and return were filed in the Probate Court of Jackson County on Nov. 18, 1957, more than 13 months after the first publication of Notice of Letters. The motion to dismiss was sustained after the introduction of evidence of a formal nature showing the facts of record in the Probate Court, largely as already stated. Thereafter, and on motion, the court set aside that order to permit further evidence, but again dismissed the petition on Dec. 26, 1957. This appeal followed that order. That evidence consisted of further probate files and records and the testimony of counsel for defendant (elicited over objections) that an insurance company was interested in the defense. No further facts whatever were developed as to the insurance. The inventory of the estate listed personal property valued at $125; no claims had been filed against the estate; the public administrator had filed a petition for the issuance of letters, but the letters were issued to a sister, the defendant here. The attorneys who defend this case are also the attorneys for the estate. It is clear that neither a notice of the institution of this suit nor copies of the summons and return were filed in the Probate Court within nine months of the first publication. All statutory references herein are to the Mo.Cum.Supp.1957, unless otherwise stated.
The only question involved is the correctness of the dismissal, which was based upon the failure to file notice of the institution of the suit (section 473.360, subd. 2) or copies of the process and return of service (section 473.367) in the Probate Court within nine months after the first publication. We need not concern ourselves with any possible distinctions between these two requirements, for plaintiff filed neither. We first note the statutes involved; all emphasis used is ours. Section 473.367 provides that any action commenced against an executor or administrator 'is considered a claim duly filed against the estate from the time of serving the original process on the executor or administrator and the filing of a copy of the process and return of service thereof in the probate court.' Section 473.360 provides that all claims (with exceptions not important here) '* * * whether due [or 1 to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, which are not filed in the probate court within nine months after the first published notice of letters * * * are forever barred against the estate, the executor or administrator, the heirs, devisees and legatees. * * *' Paragraph 2 of the last mentioned section expressly provides that 'All actions against the estate of a deceased person, pending or filed under sections 473.363 or 473.367, shall abate or shall be barred unless notice of the revival or institution thereof is filed in the probate court within nine months after the first published notice of letters.' Section 473.367 has already been digested, supra; section 473.363 provides that a pending action becomes a claim against a decedent's estate when it is revived 'and notice of the revival is filed in the probate court.' Section 473.360, subd. 4 is as follows: 'Nothing in this section affects or prevents any action or proceeding to enforce any mortgage, pledge or other lien upon property of the estate, except that attachment, judgment and execution liens shall be enforced as provided in this law and not otherwise.' Section 473.370 is as follows:
It should first be noted that these statutes are considerably more far reaching than the previous non-claim statutes, sections 464.020-464.070 RSMo 1949, V.A.M.S.; for instance, the prior statutes contained saving provisions to infants, persons of unsound mind and persons imprisoned; there was no requirement of the filing of notice of suit, and no such provision as the present section 473.360, subd. 2; also, section 473.360, subd. 1 is much more inclusive than section 464.020, its earlier counterpart. Indeed the very method of consummating a claim has been changed from an exhibiting and presenting to the filing. We may also observe that the new act has not attempted to impair the general jurisdiction of the circuit courts in actions against executors or administrators. Note, for instance, sections 473.367, 473.363, 473.370, 473.373. These sections are simply a continuation of the statutory method of liquidating claims in the circuit courts, but subject to specific limitations. Taking these statutes at their face value, they bar (or abate) all claims, whether filed in the probate court or instituted in the circuit court, unless the claim or the required notice of suit or copies of the process and return and timely filed in the probate court. We have very recently held in the case of North v. Hawkinson, Mo., 324 S.W.2d 733, that an action in equity for an accounting and a money judgment was barred and properly dismissed, where filed more than nine months after the first publication of notice of letters. There is much in the two opinions in that case which is applicable here. It seems obvious that unless there is some exception not apparent on the face of these statutes, the present suit is barred and was properly dismissed.
The various theories briefed by the appellant may fairly be stated as follows: that the assets of this estate are insignificant, the estate is insolvent, and that the non-claim statutes should be broadly construed as applicable only to suits in which a judgment would be satisfied out of the assets of the estate, as it could not be here; that the liability insurance constitutes a 'special trust fund' for the payment of plaintiff's damages, that no assets will be impaired, and that the administratrix is a mere formal party, necessary, however, for the institution and maintenance of the suit and 'to enforce payment' from the insurer; also, that the administratrix has waived 'notice of suit.' The evidence elicited here concerning insurance was most incomplete; at best, it merely indicated that a named insurer was 'interested' and that defense counsel represented it, 'together with the defendant * * *.' We note here our statutes, sections 379.195 and 379.200 RSMo 1949, V.A.M.S.; the first provides, in substance, that on any policy of liability insurance, the liability upon the occurrence of loss 'if liability there be, shall become absolute * * *,' that the payment of the insurance shall not depend upon the payment of a judgment by the insured, and that the coverage may not be cancelled after a loss. Section 379.200 provides, in substance, that 'upon the recovery of a final judgment' against an insured (including administrators or executors), and after the lapse of thirty days, the judgment creditor may proceed in equity to have the insurance proceeds applied to satisfy the judgment. Since plaintiff has demonstrated no facts concerning the insurance coverage, we may assume that the policy contains the almost universal 'no action' clause foreclosing all obligation to pay until after a final judgment. Cotton v. Iowa Mutual Liability Ins. Co., 363 Mo. 400, 251 S.W.2d 246. A final...
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Schulte v. Missionaries of La Salette Corp. of Mo.
...and Kreuger v. Schmiechen, 346 Mo. 568, 264 S.W.2d 311, that this is immaterial on the issue of liability. See also: Clarke v. Organ, Banc, Mo., 329 S.W.2d 670, 674; Baker v. Baker, 364 Mo. 453, 263 S.W.2d 29. No reason is presented now which causes us to feel that those authorities should ......
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