Duffy v. Duffy

• Decision Date: 14 March 1900
• Citation: 155 Mo. 144,55 S.W. 1002
• Parties: DUFFY v. DUFFY et al.
• Court: Missouri Supreme Court

55 S.W. 1002

155 Mo. 144

DUFFY v. DUFFY et al.

Supreme Court of Missouri. Division No. 1.

March 14, 1900.

EXEMPTIONS—DEBT OF HEIR TO THE ESTATE —DESCENT AND DISTRIBUTION— ALLOWANCE OF CLAIM.

1. Rev. St. 1889, § 4906, exempting property of $300 in value from execution against the head of a family, applies only as against the claims of third persons, and does not exempt an heir's interest in the estate from being applied to the payment of his debts to the estate.

2. Where plaintiff, one of seven heirs, owed his father, at the time of the latter's death, more than the amount of his share in the estate, it was error to allow the claim of a general creditor of the plaintiff, in preference to his debt to the estate; since the debt to his father represented so much of the estate already received by him, and it was unfair to diminish the respective shares of the other heirs to pay plaintiff's creditor.

Appeal from circuit court, Montgomery county; E. M. Hughes, Judge.

Action by Louis A. Duffy against Mattie Duffy, W. B. M. Cook, administrator, and others. From an order modifying an interlocutory decree, defendant Cook appeals. Reversed.

W. M. B. Cook, for appellant. Ront Shackleford, for respondents.

MARSHALL, J.

In December, 1892, Daniel L. Duffy died intestate, seised of the lands described in the petition, situate in Montgomery county, and leaving as his heirs the plaintiff and the defendants other than the administrator named. The plaintiff was indebted to his father at the time of his death in the sum of $1,070.10, and thereafter the administrator reduced this claim to judgment. The plaintiff was and is insolvent. The plaintiff instituted this action asking a partition of the real estate, alleged that it was not susceptible of partition in kind, and asked that it be sold, and the proceeds distributed. The administrator and the other heirs answered, and asked that the distributive share of the plaintiff be subjected to the payment of his debt to the estate. The case was tried, and an interlocutory decree entered, ordering the property to be sold, and the proceeds divided equally between the seven heirs of the deceased, but subjecting the share of the plaintiff to the payment of his debt to the estate. The property was sold for $2,275, and plaintiff's share thereof amounted to $325. Thereupon the plaintiff filed a motion alleging that he was the head of a family, and held no other property "except some household and kitchen furniture,"— the value he did not state,—and asking that he be allowed $300 as exempt. The evidence offered in support of this motion sustained the allegation that he was the head of a family, and that he had no property except his interest in this property. Thereupon the court modified the interlocutory decree, and ordered that he be paid $300, and that the balance of his share be applied— First, to the payment of a judgment for $50.72 in favor of W. Duey, W. H. Clane, and I. C. Uptegrove against the plaintiff, rendered by a justice...