Home Insurance Company v. Wickham
| Decision Date | 02 March 1920 |
| Citation | 219 S.W. 961,281 Mo. 300 |
| Parties | HOME INSURANCE COMPANY, Appellant, v. C. L. WICKHAM |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court. -- Hon. W. S. C. Walker, Judge.
Affirmed.
Fyke & Snider, for appellant.
The circuit court erred in holding that the claim was barred by the one-year Statute of Limitations. Laws 1911, p. 82; Knisely v. Leathe, 256 Mo. 341.
McKay & Smith, for respondent.
This is an action against the defendant as administrator de bonis non of the estate of J. A. Wickham, deceased, and is to recover on a promissory note for one hundred and four dollars, payable in four installments, all of which, under the terms of the instrument, were due when the action was commenced. The note was given by J. A. Wickham and L. C Wickham, apparently for premiums on a policy of insurance issued by appellant. J. A. Wickham died September 9, 1911 and Lucy C. Wickham was appointed, by the probate court of Dunklin County, administratrix of his estate, received letters testamentary bearing date September 19, 1911, and published notice of them, the last insertion of the notice being October 13, 1911. On April 4, 1912, or a little more than six months after their date, plaintiff exhibited to the administratrix the note as a demand against the estate, and notified her the demand would be presented to the probate court for allowance at the next term, which would be in April. On April 15th of the same year, the demand was presented to the probate court and, both parties being present, a trial took place which resulted in an allowance by the court of four dollars on the demand. An appeal was prosecuted to the Circuit Court of Dunklin County, where the cause was dismissed July 29, 1912. Lucy C. Wickham having died, respondent was appointed administrator de bonis non, and on September 28, 1912, this action was begun in the Circuit Court of Dunklin County on the same demand. The defendant was served, appeared, and for defense to the demand pleaded a general denial and also the special administration Statute of Limitation, alleging the suit was filed and service was had on the defendant more than one year after the grant of letters of administration. The cause was appealed to the Springfield Court of Appeals and was there decided, two of the judges agreeing, but on different views of the relevant statutes, that the demand was not barred by the special statute as shortened to one year by an amendment adopted in 1911 and hereafter copied; from which conclusion of the majority of the court one of the judges dissented and caused the case to be certified here as being in conflict with the decision of this court in Wernse v. McPike, 100 Mo. 476, 13 S.W. 809.
The only question for decision is whether the claim was barred by limitation when this action was begun, defendant asserting it was, for the reason stated in his answer, whereas plaintiff contends that, as the demand was exhibited to the administratrix April 4, 1912, and was presented to the probate court for allowance April 15, 1912, both of which proceedings occurred within seven months of the grant of letters, therefore the demand could not be barred except by the general statute limiting the time for beginning actions on written obligations for the payment of money. Otherwise stated, plaintiff's position is that under the amendments of 1911, the statute of the administration law, prescribing the period which will bar the allowance of demands against estates, no longer ran against plaintiff's demand after it had been exhibited to the administratrix; or, if that is not true, the running of said limitation statute ceased upon the presentation for allowance on April 15th, notwithstanding the proceeding was dismissed later.
In 1911 ten amendments of the administration law were enacted, all approved on March 13th of said year. The purpose, either declared or apparent, of seven of those amendments was to shorten the time wherein certain proceedings in the course of administration might be taken (for examples, filing inventories and publishing notice of the grant of letters), with the view thereby to expedite the winding up of estates and enable them to be settled within a minimum period of one year, instead of two as theretofore provided. [Laws 1911, pp. 78 to 86 inclusive.] We will state such of the changes made, as throw light on the question before us. Section 82, Revised Statutes 1909, regarding the publication of letters, was amended to require the notice to state that if claims were not exhibited "within one year [instead of two] from the date of the last insertion of such publication, they shall be forever barred." [Laws 1911, p. 79.] That is one enactment limiting the time for exhibiting demands. Section 190, Revised Statutes, which defines the several classes of demands against estates and fixes priority of payment among them, was amended as to the fifth and sixth classes, by placing in the fifth class demands not exhibited within six months (previously a year) after the granting of first letters, and in the sixth class those not exhibited in one year after (previously two). [Laws 1911, p. 80.] Section 191, Revised Statutes 1909, which is especially intended to limit the time for exhibiting claims to executors and administrators for classification, was modified to require them to be exhibited in one year instead of two.
Section 238 was amended to allow final settlement to be made "at the first regular term of the probate court after the expiration of one year from the completion of publication of notice of letters." Italics ours.) [Laws 1911, pp. 83, 84.] The amended section mainly involved in the present case is 195, but the provisions of it can be understood best if we copy the three sections not altered in 1911, immediately preceding it, which prescribe how claims shall be exhibited to the executor or administrator.
"All actions pending against any person at the time of his death, which, by law, survive against the executor or administrator, shall be considered demands legally exhibited against his estate from the time such action shall be revived, and classed accordingly." [R. S. 1909, sec. 192.]
"All actions commenced against such executor or administrator, after death of the deceased, shall be considered demands legally exhibited against such estate from the time of serving the original process on such executor or administrator." [R. S. 1909, sec. 193.]
"Any person may exhibit his demands against such 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." [R. S. 1909, sec. 194.]
Next we quote Section 195, showing in parentheses the words in the section prior to the amendment for which others were substituted, and emphasizing the words in the amendment not before contained in the section.
"No claimant shall avail himself of the benefit of the preceding section unless he shall exhibit (present) his demand to the administrator (court) in the manner provided by law, for allowance, within one (two) year after the granting of first letters on the estate, or the last insertion of the publication of notice of the grant of such letters as provided for in Section 191 of this article, nor unless he shall also present his said demand to the court at the term thereof next succeeding the term during which he shall have exhibited the same, whenever the same is exhibited during the term at which final settlement could be made except for the exhibition of such demand." [Laws 1911, p. 82.]
It should be noted that said section relates solely to a demand exhibited according to the mode provided in Section 194, as amended in 1911.
Plaintiff's first contention is, as stated above, that as Section 195 after its amendment, no longer required a demand to be presented to the court for allowance in order to stop the running of the special statute, nothing was required to stop it except an exhibition to the executor or administrator, which in plaintiff's case was made on April 4, 1912, and thereafter it could only be barred by the general statute of limitations. The claim of plaintiff was exhibited on that day in the mode authorized by Section 194; that is, by serving the administratrix with a notice in writing, showing the amount and nature of the claim, and with a copy of the note. Section 195 (as amended) says no claimant shall avail himself 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 granting of the first letters," etc. Did the Legislature intend, by striking out of said section the words explicitly requiring a demand to be presented to the court for allowance and substituting words explicitly requiring it to be exhibited...
To continue reading
Request your trial