Higgins v. Breen

• Decision Date: 31 October 1845
• Citation: 9 Mo. 497
• Parties: ROSALINA HIGGINS v. PETER BREEN, ADM'R OF B. MCNALLY.
• Court: Missouri Supreme Court

9 Mo. 497

ROSALINA HIGGINS

v.PETER BREEN, ADM'R OF B. MCNALLY.

Supreme Court of Missouri.

October Term, 1845.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

SCOTT, J.

This was an action of assumpsit, brought by the plaintiff in error, Rosalina Higgins, against the administrator of Bernard McNally's estate. The declaration contained two counts. The first was a special one, setting out at length the facts of the case, and alleging, that B. McNally in his life-time, representing himself to be a widower, sole and unmarried, solicited the plaintiff to marry him, and as his wife to take charge and control of his family and domestic concerns, in consideration of which she should enjoy all the rights, interests and privileges of a married woman. That the plaintiff afterwards married McNally, and lived and cohabited with him as his wife, took charge of his affairs, and conducted herself as a dutiful wife, until the death of the said McNally. It is furthermore alleged, that at the time of the said marriage the said McNally was married and had a wife, living, unknown to the plaintiff, in foreign parts, which said wife survived said McNally, and is entitled to dower in his estate; that McNally left a considerable estate, and by reason of the premises the plaintiff has been, and is debarred of her dower to the damage, &c.

The second count is general, for work and labor, care, diligence, and attention on the business and affairs of McNally, the defendant.

To the first count in the declaration there was a demurrer which was sustained by the court below. On the trial of the issue on the second count, the plaintiff offered to prove that the deceased, Bernard McNally, about the month of August, 1841, applied to the plaintiff to marry him, then representing himself as a widower with two children, and stating that his former wife was dead, and after repeated solicitations the plaintiff consented to marry the said Bernard. On the 23rd day of August, 1841, the plaintiff and said Bernard were married. The plaintiff also offered to prove that she lived with said Bernard, as his wife, from the time of their marriage until his death, which occurred on the second day of October, 1842, discharging all the duties of a wife, managing the family and household affairs of said McNally, with prudence and industry; that said McNally was a farmer, in the possession of a comfortable house, and a farm of about forty acres in cultivation, which he owned, near Manchester, in St. Louis county, with considerable personal property; that McNally had many laborers in his employment on his farm, and in erecting buildings, and the plaintiff cooked for the whole family, including those laborers. The plaintiff further offered to prove, that said Bernard McNally, at the time of making the representations to plaintiff aforesaid, and at the time of his marriage with the plaintiff as aforesaid, and at the time of the death of the said McNally, had a lawful wife living in foreign parts, who has since his death, come to the State of Missouri, and claimed and obtained dower in his estate; and that the plaintiff has been ut off from any interest or share in the estate of the said deceased, and that she never received from McNally, in his life-time, nor from any person since, any compensation for the services she rendered, more than her food and clothing. The bill of exceptions then states, that the court decided that the proof of the foregoing facts would not support the plaintiff's action, and that she was not entitled to recover, and the plaintiff not offering any other evidence, the court instructed the jury to find for the defendant, to which opinions and instructions the plaintiff excepted, and the exceptions were saved. There was a verdict for the defendant. No motion was made to set aside the verdict, and grant a new trial, but the cause is brought here on the exceptions taken before the verdict was given.

At common law, actions ex contractu alone survived against an executor or administrator. But where the cause of action arose from any mis-feasance or mal-feasance, was a tort, or arose ex delicto, in which the declaration imputes a wrong done to the person or property of another, and in which the plea was not guilty, and damages were recovered, then the rule actio personalis moritur cum persona prevailed, and no action could be sustained by or against an executor or administrator. The statute of 4th Edward III, de bonis asportatis in vita testatoris, reciting that in times past executors have not had actions for trespasses done to their testators, as of the goods and chattels of their testator carried away in his life-time, and so as such trespasses have remained unpunished, enacts that the executor in such cases shall have an action against the trespassers, and recover their damages in like manner as they, whose executors they be, should have had if they were living. This statute was subsequently extended to executors of executors, and to administrators, and being a remedial statute has been always liberally construed, and although using the word trespasses alone, has been extended to all acts by which personal property has been lessened in value. It has been construed as extending to an action for an escape, to debt on a judgment, suggesting a devastavit by the executor, to an action for a false return, for removing goods taken on execution before the landlord was paid a year's rent, and for not setting out tithes. The statute, it will be perceived, only gave actions to executors, and not against them, for as against the person committing the injury the action dies with him. Chitty, 59; 1 Saunders, 217. Our statute has changed the English law in this respect, and has given an action both to and against executors and administrators, and by employing much broader language than the statute of Edward, seems to have included by express enactment the injuries which were comprehended in that statute only by construction. The words of...