Hunter v. Hunter, 41598

CourtUnited States State Supreme Court of Missouri
Citation237 S.W.2d 100,361 Mo. 799,24 A.L.R.2d 611
Docket NumberNo. 41598,No. 1,41598,1
Parties, 24 A.L.R.2d 611 HUNTER v. HUNTER
Decision Date12 February 1951

Page 100

237 S.W.2d 100
361 Mo. 799, 24 A.L.R.2d 611

No. 41598.
Supreme Court of Missouri, Division No. 1.
Feb. 12, 1951.
Rehearing Denied March 12, 1951.

[361 Mo. 800]

Page 101

Barksdale, Abbott & Thies, Clarence M. Barksdale and Victor A. Wallace, all of St. Louis, for appellant.

[361 Mo. 801] Joseph M. Walsh, J. E. Patton, St. Louis, for respondent Earl Hunter.

[361 Mo. 802] LOZIER, Commissioner.

This appeal is here because construction of the state constitution and title to real estate are both involved. The nature of the judgment appealed from and the issues can be better stated if the facts are first reviewed. These facts were either stipulated or were uncontroverted.

Appellant Harry Hunter, Jr. and respondent Earl Hunter are the sons and only children of Harry Hunter, Sr. and Nellie Hunter. Respondent never married and has no children. In 1919, respondent was convicted of first degree murder and sentenced to life imprisonment in the penitentiary. He was confined there until June 27, 1946. On that date, the Governor commuted the life sentence to a 'term ending' that day 'without the benefit of the three-fourths law.' The commutation was conditioned upon respondent's compliance with certain conditions until April 21, 1951, 'failing in any of which, or upon the order of the Governor at any time, he may be arrested and returned to the penitentiary, without a hearing, there to serve out the remainder of his sentence.'

Harry Hunter, Sr. died intestate in 1930 and appellant was appointed administrator of the father's estate. It consisted solely of personal property. A residence had been owned by him and his wife by the entirety. On the application form appellant listed the widow, Nellie Hunter, and the two sons as the 'heirs now in being.' The estate was subsequently ordered distributed, $1457.33 to each of the three.

Appellant, upon his own application, Nellie Hunter having renounced the right, was appointed administrator of the estate of 'Earl Hunter, deceased.' The application form recited that Earl Hunter had 'entered the Missouri State Penitentiary for the rest of his natural life.' The file wrapper showed the estate as that of 'Earl Hunter, civilly dead.' The inventory showed the $1457.33 as being the only property of said 'deceased.' As administrator of the estate of 'Earl Hunter, deceased,' appellant filed in the father's estate a receipt for respondent's distributive share of the father's estate. Thereafter, the amount available for distribution ($1294.86) in respondent's estate was distributed to the mother and appellant, one half ($647.43) to each.

Nellie Hunter died intestate in 1937 and appellant was appointed administrator of her estate. On the application form he listed himself as her only 'heir now in being.' The inventory showed $6276.90 in personal property and $1080 in real estate, the residence property. In the settlement of the mother's estate, $5501.72 was paid to appellant as 'sole heir.' He also received personal property worth $225 which was not included in the inventory in the mother's estate. Two weeks after the mother's death, appellant moved to the residence property and with his family has since lived there. He paid the taxes and the insurance costs and made improvements and repairs.

[361 Mo. 803] On January 6, 1948, respondent filed this action in equity. The first count was for an accounting for his distributive share of the father's estate and for one-half interest of the mother's estate and of her other personal property not inventoried. The second count was for partition of the residence property. At the close of all the evidence, the trial court overruled appellant's motion to dismiss respondent's petition; required appellant to account and found for respondent for $4158.70 on the first count; and held that respondent was

Page 102

the owner of an undivided one-half interest in the residence and ordered a partition sale thereof.

Appellant challenges the correctness of these rulings of the trial court: that the 'civil death' statute, Sec. 9225, Mo.R.S.1939 and Mo.R.S.A., now Sec. 222.010, Mo.R.S.1949, and the statute providing for administration of the estate of a life convict, Sec. 9228, Mo.R.S.1939 and Mo.R.S.A., repealed, Laws 1945, p. 1333, violated certain constitutional provisions, Art. II, Sec. 13, 1875 Const.; Art. I, Sec. 30, 1945 Const., and conflicted with other statutory provisions, Sec. 4858, Mo.R.S.1939 and Mo.R.S.A. now Sec. 556.300, Mo.R.S.1949; that appellant became a constructive trustee and was liable to respondent for respondent's share of the father's estate and for one-half of the mother's estate; that respondent inherited an undivided one-half interest in the residence property; that the probate proceedings could be collaterally attacked; that respondent was entitled to bring the action; and that the cause of action was not barred by statutes of limitations.

We have considered all of these matters and find that it is necessary to rule but one. As it appears that respondent's claims were barred by the statutes of limitations pleaded by appellant, we will assume, but not decide, that the trial court correctly ruled all of the other issues.

Respondent's suit was filed January 6, 1948. This was over 16 years after the final settlement in his father's estate, over 15 years after the final settlement in respondent's estate and over 9 years after the final settlement in his mother's estate. All such estates involved personalty only. Any cause of action which respondent may have had resulting from these proceedings, respectively, accrued over 5 years prior to January 6, 1948, and was barred by the provisions of Sec. 1014, Mo.R.S.1939 and Mo.R.S.A., now Sec. 516.120, Mo.R.S.1949.

Respondent's action was filed over 10 years after his mother's death, which occurred on September 10, 1937. Assuming but not deciding that he inherited from her an undivided one-half interest in the residence property, respondent's cause of action therefor accrued more than 10 years prior to January 6, 1948, and he did not assert his claim within the period prescribed by Sec. 1002, Mo.R.S.1939 and Mo.R.S.A., now Sec. 516.010, Mo.R.S.1949.

[361 Mo. 804] Assuming that appellant and respondent owned the residence as tenants in common, the general rule is that such a tenant or such an heir presumptively holds...

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